Citation Nr: 1312466 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 06-08 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to September 1, 2011; and in excess of 20 percent from September 1, 2011, for the service-connected residuals of an injury of the upper back ("back disability"). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to December 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, continued a 10 percent rating for residuals of an injury of the upper back and denied a TDIU. In January 2009, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In May 2009 and July 2011, the Board remanded the claim for an evaluation in excess of 10 percent for the back disability and the claim for a TDIU to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In an August 2012 rating decision, the AMC granted an increased, 20 percent rating for the service-connected back disability, effective September 1, 2011. Despite the higher evaluation established in August 2012, the Veteran has not been awarded the highest possible evaluation. He is presumed to be seeking the maximum possible evaluation and his claim remains in appellate status. A.B. v. Brown, 6 Vet. App. 35 (1993). In a November 2012 rating decision, the AMC granted a TDIU, effective September 1, 2011. However, on the same date, the AMC issued a supplemental statement of the case (SSOC) in which it denied a TDIU. In January 2013, the Board again remanded the case and characterized the issues on appeal as entitlement to a rating in excess of 10 percent prior to September 1, 2011; and in excess of 20 percent from September 1, 2011, for the service-connected residuals of an injury of the upper back ("back disability"), entitlement to a TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a) from September 1, 2011, and entitlement to a TDIU due to service-connected disabilities prior to September 1, 2011 on an extraschedular basis under 38 C.F.R. §§ 3.321 and 4.16(b). The AMC continued to deny the claims in a March 2013 SSOC. The record does not include any communication advising the Veteran that his claim for a TDIU had been granted, effective September 1, 2011 as stated in the November 2012 rating decision. Regardless, as will be discussed below, the Board finds that a TDIU is warranted, effective May 1, 2009. Because this decision grants the benefit sought and clarifies the record, no prejudice will inure to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced). The Veteran is represented by the American Legion, as reflected in a January 1979 VA Form 23-22, Appointment of Veterans Service Organization as Claimant's Representative. Despite this, the March 2013 SSOC was furnished to another Veterans Service Organization (VSO), Veterans of Foreign Wars, as opposed to the American Legion, as required by 38 C.F.R. § 19.31(b). The record does not reflect that the American Legion was afforded the opportunity to file an Informal Hearing Presentation (IHP) on behalf of the Veteran since the most recent remand of the case. When an appellant appeals to the Board, he or she "will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person." 38 C.F.R. § 20.600 (2012). Further, the Veteran has not been afforded 30 days for response subsequent to issuance of the March 2013 SSOC, as required by 38 C.F.R. § 20.302(c). Reiterating in light of the favorable decision regarding the claim for a TDIU, effective May 1, 2009, there is no prejudice to the Veteran by proceeding with this portion of the appeal. Bernard, above. If the claims remanded here are not fully granted on remand, the Veteran's representative is to be furnished a copy of any SSOC (after which the Veteran should be afforded a 30 day period for response), and is to be afforded the opportunity to file an IHP on behalf of the Veteran. The Board also has reviewed the Veteran's electronic ("Virtual VA") file and found that it contains additional medical evidence that has been considered by the AMC in the most recent SSOC. In the January 2013 remand, the Board noted that claims for service connection for bilateral hearing loss and erectile dysfunction had been raised by the record but had not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). These matters were referred to the AOJ for appropriate action. There is no indication that they have yet been adjudicated. The issues of entitlement to service connection for bilateral hearing loss and erectile dysfunction have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these matters, and they are, again, REFERRED to the AOJ for appropriate action. However, the claim for service connection for erectile dysfunction will be referenced in the remand below, as it is inextricably intertwined with the Veteran's claim for a TDIU prior to April 13, 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a rating in excess of 10 percent prior to September 1, 2011 and in excess of 20 percent from September 1, 2011for a back disability and the issue of entitlement to a TDIU prior to April 13, 2009 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service-connected disabilities are right shoulder bursitis (10 percent disabling from January 15, 1998, 100 percent disabling from February 18, 2004, and 30 percent disabling from May 1, 2004); left shoulder bursitis (10 percent disabling from January 15, 1998 and 20 percent disabling from December 12, 2001); residuals of an injury of the thoracolumbar spine (10 percent disabling from January 15, 1998 and 20 percent disabling from September 1, 2011); sinusitis (10 percent disabling from January 15, 1998); residuals of diffuse bilateral eosinophilic granule (10 percent disabling from January 15, 1998); and postsurgical cervical diskectomy with mild loss of range of motion (100 percent disabling from April 13, 2009 and 10 percent disabling from May 1, 2009). The combined service-connected disability rating is 70 percent as of May 1, 2009. 2. As of May 1, 2009, the Veteran met the schedular criteria for a TDIU and his service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW As of May 1, 2009, the criteria for a TDIU rating are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court), in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. Given the favorable disposition of the claim for a TDIU, effective May 1, 2009, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. The Merits of the Claim The Veteran contends that he is entitled to a TDIU since his service-connected disabilities render him unemployable. A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012). In making this determination, the critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran's service-connected disabilities are right shoulder bursitis (10 percent disabling from January 15, 1998, 100 percent disabling from February 18, 2004, and 30 percent disabling from May 1, 2004), left shoulder bursitis (10 percent disabling from January 15, 1998 and 20 percent disabling from December 12, 2001), residuals of an injury of the thoracolumbar spine (10 percent disabling from January 15, 1998 and 20 percent disabling from September 1, 2011), sinusitis (10 percent disabling from January 15, 1998), residuals of diffuse bilateral eosinophilic granule (10 percent disabling from January 15, 1998), and postsurgical cervical diskectomy with mild loss of range of motion (100 percent disabling from April 13, 2009 and 10 percent disabling from May 1, 2009). His combined disability rating is 40 percent from January 15, 1998, 50 percent from December 12, 2001, 100 percent from February 18, 2004, 60 percent from May 1, 2004, 100 percent from April 13, 2009, and 70 percent from May 1, 2009. The shoulder, thoracolumbar spine, and cervical spine disabilities affect a single body system (the musculoskeletal system). Because the Veteran's shoulder disabilities affect the right and left upper extremities, these separate ratings must be combined using the bilateral factor found in 38 C.F.R. § 4.26, which provides that when a partial disability results from disease or injury of both arms, or of both legs, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. In applying the bilateral factor to the right and left shoulder disabilities, the combined rating for the separate 30 and 20 percent ratings for the right and left shoulders (as in effect from May 1, 2004) is 44, plus 10 percent, or 4.4, for a total of 48.4. When 48 is combined with 10 percent (for the thoracolumbar spine disability, as in effect prior to September 1, 2011) and 10 percent (for the cervical spine disability, as in effect from May 1, 2009), the combined rating is 58,which is rounded up to 60 percent, from May 1, 2009. See 38 C.F.R. § 4.25, 4.26. The Veteran also has sufficient additional disability to bring his combined rating to 70 percent as of May 1, 2009 (sinusitis and residuals of diffuse bilateral eosinophilic granule, each rated 10 percent disabling). Therefore, as of May 1, 2009, the schedular criteria for a TDIU have been met. 38 C.F.R. § 4.16(a). In order to qualify for a TDIU, the probative evidence must nonetheless be at least in approximate balance indicating the Veteran's unemployability on account of his service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU). As the Court explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. See also 38 C.F.R. § 4.1, indicating that, generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. The resolution of this appeal ultimately turns on whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also Moore, 1 Vet. App. at 358. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Considering the pertinent evidence in light of the law, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted, effective May 1, 2009. The Veteran filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in March 2005, in which he asserted that he was unable to secure or follow any substantially gainful occupation due to his bursitis. He indicated that he last worked full-time as a security officer in June 2002. He reported that he had completed two years of college, but had no additional education or training. An April 2005 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, reflects that the Veteran last worked as a security officer in March 2002, having left his employment due to early retirement. In a May 2005 statement, the Veteran reported that his shoulder problems from service continued during his post-service employment as a security officer. He added that he put in for retirement because of his shoulders and back. During a May 2005 VA examination, the Veteran reported that he had retired from his work as a security officer in 2002 due to his shoulder pain. The impressions following examination were right shoulder rotator cuff tear with pain and severe weakness and loss of overhead use; left shoulder aching pain but good range of motion and exercise tolerance; asymptomatic eosinophilic granuloma left lung; night sweats of unknown etiology; and chronic strain in the mid to upper thoracic spine area which is probably muscular in nature. The examiner did not render an opinion regarding the Veteran's employability. Later that month, the Veteran was afforded a VA examination to evaluate his service-connected sinusitis. The diagnosis was allergic rhinitis, by history. The examiner commented that the Veteran's current employment, social, and daily activity functioning should not be adversely affected by the disabilities which were being evaluated on that examination. In his November 2005 notice of disagreement (NOD), the Veteran reported that he did not have sufficient strength in his arms to accept any employment that would require lifting of any type and he had no training in any field other than law enforcement and security; a field in which he could not work due to the limited use of his arms. During VA treatment in November 2005, the Veteran complained of pain in both his shoulders and arms and stated that he was unable to do his normal work, golf and as recorded by the examiner, "etc." An MRI revealed a probable tear in both rotator cuffs. The assessment was shoulder arthralgia. During a June 2006 VA spine examination, the Veteran reported that he had worked in security until he retired in 2002, mainly because of pain in his shoulders. During a VA joints examination performed on the same date, the Veteran described shoulder pain which became more severe after discharge from service, and interfered with his work. The examiner commented that the Veteran had worked at security until 2003 and was unable to do his work. The impression following examination was rotator cuff injury to the right and left shoulders, two rotator cuff repairs of the right shoulder, two rotator cuff repairs of the left shoulder, recurrent rotator cuff tears of the right and left shoulders by MRI, chronic pain of the shoulder, secondary to rotator cuff tears in surgery and decreased range of motion of the right and left shoulders secondary to rotator cuff tears in surgery. During the January 2009 hearing, the Veteran testified that, as a result of his spine disability, he was unable to sit or stand for prolonged periods of time. He added that he could not do any kind of work that involved any lifting or that required sitting at a computer all day long. He reported that he worked as security police during service and, post-service, was employed as a security officer for 23 years. He denied having any other occupational skills. On VA examination in February 2010, the examiner noted that the Veteran had cervical spine surgery in February 2009, with radiculopathy in a C6/7 nerve root distribution and neck weakness. It had been impossible for the Veteran to raise his arms and he was in a great deal of pain; however, the surgery reportedly completely relieved him of his radicular symptoms, although he continued to experience weakness in the neck. The Veteran reported that it was painful for him to lift his elbows above chest height. As regards the bilateral shoulder disabilities, the Veteran reported that he had limitations in lifting as a result of surgical resection, with an inability to raise his elbows above nipple height without discomfort. Reaching out and lifting were, at times, difficult. On examination, shoulder range of motion was normal, bilaterally, with flexion and abduction from 0 to 180 degrees and internal and external rotation from 0 to 90 degrees. The Veteran was able to reach overhead with difficulty, and this was painful on the right side. This movement was made slowly and carefully. The diagnoses were postsurgical cervical diskectomy with mild loss of range of motion, postsurgical changes of both shoulders, and impingement syndrome, left shoulder, mild. The examiner commented that the Veteran's shoulder range of motion was surprisingly normal in spite of the surgical resection. In January 2011, the Veteran submitted another VA Form 21-8940, in which he reported that his service-connected bursitis, spine disability, and sinusitis prevented him from securing or following any substantially gainful occupation. The Veteran underwent a VA examination to evaluate his shoulder and cervical spine disabilities in July 2011. In regard to how far and long the Veteran could walk, the examiner commented that he was unable to walk as he was fatigued easily in the lower back. Range of motion testing of the shoulders revealed loss of motion and weakness. The examiner commented that the right and left shoulder bursitis affected the Veteran's usual occupation and daily activities in that he was limited in lifting, pushing, and pulling, and could not work above the shoulder level. He added that the cervical spine disability affected the Veteran's usual occupation and daily activities in that he had limited range of motion. The Veteran was afforded a VA examination to evaluate his claim for a TDIU in September 2011. He reported that he was currently not working as he had retired from his employment as a security officer at age 65. He stated that he had retired because he was unable to use his shoulders in the performance of his duties and because of his recurrent episodes of back pain. He asserted that he was not currently employed due to pain in his low back and his shoulders. He described current bilateral lower lumbar segment pain in addition to pain in the mid-thoracic region, in between his shoulder blades. He described having recurrent episodes of bilateral lower back pain, which radiated into the posterior thighs and posterior calves just above the level of the ankle, bilaterally, since 2007. The Veteran reported that he was unable to do repetitive bending or lifting in excess of five pounds due to low back pain. Regarding his service-connected shoulder disabilities, the Veteran described pain with any type of overhead lifting, worse on the right than the left. Any type of repetitive activity, especially above the level of the shoulders, caused increased pain in both shoulders. The shoulder pain was described as primarily incapacitating on the right side, and the examiner noted that the Veteran is right-handed. Right shoulder range of motion testing revealed abduction from 0 to 90 degrees with pain from 30 to 90 degrees. Forward flexion was from 0 to 110 degrees with pain from 80 to 110 degrees. Internal rotation was from 0 to 90 degrees with pain at the extreme. External rotation was from 0 to 70 degrees with pain from 50 to 70 degrees. Left shoulder range of motion testing revealed abduction from 0 to 140 degrees with pain from 110 to 140 degrees. Forward flexion was to 150 degrees with pain from 130 to 150 degrees. Internal and external rotation were each from 0 to 90 degrees without pain. Examination of the lumbar spine revealed flexion from 0 to 60 degrees with pain from 40 to 60 degrees. Extension was from 0 to 20 degrees with pain from 10 to 20 degrees. Left and right lateral flexion were each from 0 to 20 degrees with pain from 10 to 20 degrees. Left and right lateral rotation were each from 0 to 20 degrees with pain at the extreme. The diagnoses following examination were chronic lumbar strain with secondary degenerative disc disease and degenerative joint disease without current radiculopathy; chronic lumbar strain with secondary degenerative disc disease and degenerative joint disease with recurrent intermittent bilateral radiculopathy; and bilateral end stage rotator cuff tears of the shoulders with severe chronic residual myofascial pain, status post failed repairs of both the left and right shoulder. The examiner noted that he had been asked to provide an opinion regarding the Veteran's employability based on his service-connected bilateral shoulder and thoracolumbar spine disorders. He opined that, with regard to manual labor and the profession for which the Veteran was trained and worked for many years (security officer), the Veteran was unable to continue to be employed in such capacity due to his inability to do overhead work or to stand or walk for prolonged periods of time. The examiner further opined that, with regard to sedentary activity and sedentary employment, for which the Veteran was not currently trained, he was unable to sit or stand for prolonged periods of time, primarily due to the pain in his low back, which was bilateral and had intermittent incapacitating episodes. Based on this, the examiner opined that the Veteran was unable to engage in any type of current gainful employment based on these problems. VA treatment records dated from June 2000 to May 2012 reflect complaints regarding and treatment for shoulder and back pain, with limitation of motion in the shoulders and cervical spine. Based on the foregoing, and resolving all reasonable doubt in his favor, the Board finds that the September 2011 opinion provides competent and probative evidence that the Veteran's service-connected disabilities preclude employment. During the January 2009 hearing, the Veteran testified that, as a result of his spine disability, he was unable to sit or stand for prolonged periods of time. He added that he could not do any kind of work that involved any lifting or that required sitting at a computer all day long. While the February 2010 VA examination revealed normal shoulder range of motion, the Veteran reported that he had limitations in lifting with an inability to raise his elbows above nipple height without discomfort and added that reaching out and lifting were, at times, difficult. Reaching overhead on examination was difficult, with pain on the right. VA examination less than a year and a half later, in July 2011, revealed loss of motion and weakness in the shoulders and the examiner commented that the Veteran's usual occupation was affected in that he was limited in lifting, pushing, and pulling, and could not work above shoulder level. Shoulder range of motion was again limited on VA examination in September 2011. As noted, as of May 1, 2009 the Veteran's combined service-connected disability ratings met the threshold for consideration of a TDIU. The Veteran has consistently described an inability to work due to his service-connected disabilities, to specifically include his shoulder disabilities. Given the evidence noted above, and with resolution of all reasonable doubt in the Veteran's favor on the question of unemployability, the Board finds that entitlement to a TDIU is established, effective May 1, 2009. ORDER A TDIU is granted, effective May 1, 2009. REMAND The record reflects that there is outstanding evidence pertinent to the claims remaining on appeal. In an August 2011, the Veteran responded to an August 2011 letter from the AMC, asking that he identify all records of VA and non-VA healthcare providers who had treated him for his back disorder. He was instructed to complete a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, for each non-VA provider. The Veteran returned a signed VA Form 21-4142; however, he wrote "See attached" in the space designated to identify the treatment provider. In an attached statement, the Veteran reported that Dr. J.K.K. performed surgery on his lower back on November 3, 2009. A January 2010 VA treatment record reflects that the Veteran was status post anterior lumbar fusion, L4-S1, doing well. The September 2011 VA examination report further notes that the Veteran had low back surgery with fusion in 2009. Records regarding the November 2009 low back surgery are not currently available for the Board's review. VA has a duty to obtain relevant records of treatment reported by private physicians. Massey v. Brown, 7 Vet. App. 204 (1994). On remand, treatment records from Dr. J.K.K., to include any records regarding lumbar spine surgery in November 2009, should be obtained. Additionally, the Virtual VA e-folder includes a March 2010 rating decision granting service connection for postsurgical cervical discectomy with mild loss of range of motion. A 100 percent rating was assigned from April 13, 2009, with a 10 percent rating assigned from May 1, 2009. The evidence considered in that decision included the Veteran's claim filed in April 2009, a private treatment statement from Dr. J.K.K., dated February 18, 2009, and VA treatment records from the North Texas Healthcare System (HCS), dated from January 2009 through January 2010. A July 2011 rating decision in the Virtual VA e-folder reflects that the RO continued a 10 percent rating for sinusitis. The evidence considered in that decision included a temporary file, a May 2011 VA examination, private treatment records from Fort Worth Family Practice Associates, dated January 2001, May 2006, and October 2010, a lay statement received May 31, 2011, a VA Form 21-0820 dated June 13, 2011, and VA treatment records dated from June 2000 through July 2011. While VA treatment records dated from June 2000 to May 2012 and the May 2011 VA examination report are available for the Board's review in the Virtual VA e-folder, other pieces of evidence relied on in the March 2010 and July 2011 rating decisions, including the Veteran's April 2009 claim, the February 2009 statement from Dr. J.K.K., the temporary file, a lay statement received May 31, 2011, and a VA Form 21-0820 dated June 13, 2011, are not currently available for the Board's review. While a January 2001 treatment record from Fort Worth Family Practice Associates is associated with the claims file, treatment records from this private provider, dated in May 2006 and October 2010, are not currently available for the Board's review. On remand, the AMC/RO should associate with the record any evidence relied on in the March 2010 and July 2011 rating decisions which is not currently of record. Although the Board has presently granted an earlier effective date for TDIU, readjudication of the Veteran's back disability rating claim, as well as other pending claims, could result in an earlier effective date for TDIU. Regarding the claim for a TDIU prior to that established above, as noted in the introduction, claims for service connection for bilateral hearing loss and erectile dysfunction are being referred to the AOJ for appropriate action. The claim for hearing loss was raised in an August 2011 statement, while the claim for erectile dysfunction, to include as secondary to a service-connected spine disability, was raised during the January 2009 hearing. Given that the outcome of the claim for service connection for erectile dysfunction could affect the claim for a TDIU prior to that set out above because it could result in eligibility for a TDIU on a schedular basis, the Board finds that the claim for a TDIU is inextricably intertwined with this claim and that the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991); see also 38 C.F.R. § 3.400. Therefore, appellate review of the claim for a TDIU prior to May 1, 2009 must be deferred until the claim for service connection for erectile dysfunction, which has been raised by the Veteran, is adjudicated. For the period prior to that established, the Veteran's combined disability evaluation does not meet the statutory threshold for consideration of a TDIU. A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); VAOPGCPREC 6-96 (August 16, 1996). An extraschedular rating is requested by the RO and approved by the Under Secretary Benefits or by the Director of the Compensation Service. As noted above, in a May 2005 statement, the Veteran reported that his shoulder problems from service continued during his post-service employment as a security officer and added that he put in for retirement because of his shoulders and back. During a May 2005 VA examination, the Veteran reported that he had retired from his work as a security officer in 2002 due to his shoulder pain. In his November 2005 NOD, the Veteran reported that he did not have the strength in his arms to accept any employment that would require lifting of any type and he had no training in any field other than law enforcement and security; a field in which he could not work due to the limited use of his arms. During VA treatment in November 2005, the Veteran complained "bitterly" of pain in both his shoulders and arms and stated that he was unable to do his normal work, golf, etc. An MRI revealed a probable tear in both rotator cuffs. The assessment was shoulder arthralgia. During a June 2006 VA examination, the Veteran reported that he had worked in security until he retired in 2002, mainly because of pain in his shoulders. During the January 2009 hearing, the Veteran testified that, as a result of his spine disability, he was unable to sit or stand for prolonged periods of time and added that he could not do any kind of work that involved any lifting or that required sitting at a computer all day long. He reported that he worked as security police during service and, post-service, was employed as a security officer for 23 years. He denied having any other occupational skills. During a June 2006 VA joints examination, the Veteran described shoulder pain which became more severe after discharge from service, and interfered with his work. The examiner commented that the Veteran had worked at security until 2003 and was unable to do his work. Because there is evidence suggesting that the Veteran may have been unemployable due to his service connected disabilities during the period prior to April 13, 2009, a referral to consider entitlement to a TDIU on an extraschedular basis is warranted. As noted in the introduction, the American Legion did not file an IHP subsequent to the January 2013 remand. If any claim is not fully granted on remand, the American Legion must be given an opportunity to review the case and provide argument on the Veteran's behalf prior to the case being returned to the Board. See 38 C.F.R. § 20.600. Finally, the most recent VA treatment records currently of record are dated in May 2012. On remand, the AMC/RO should obtain any more recent VA treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected disabilities. After acquiring this information and obtaining any necessary authorization, obtain and associate any outstanding pertinent records with the claims file. A specific request should be made for: (1) treatment records from the VA North Texas HCS, dated since May 2012; (2) treatment records from Dr. J.K.K., to include any records regarding lumbar spine surgery in November 2009; (3) evidence relied on in the March 2010 rating decision, including: (a) a claim filed in April 2009 and, (b) a private treatment statement from Dr. J.K.K., dated February 18, 2009; and (4) evidence relied on in the July 2011 rating decision, including: (a) a temporary file, (b) private treatment records from Fort Worth Family Practice Associates, dated in May 2006 and October 2010, (c) a lay statement received May 31, 2011, and (d) a VA Form 21-0820 dated June 13, 2011. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Conduct all necessary notice, development and adjudication of the claim for service connection for erectile dysfunction, to include as secondary to a service-connected spine disability. 3. After completing the above actions, and any additional notification and/or development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. 4. If the Veteran's combined disability evaluation does not meet the regulatory criteria for consideration of a schedular TDIU prior to May 1, 2009, readjudication this claim MUST include referral of the claim for a TDIU prior to that period to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. §4.16(b) (2012). 5. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran's representative must be given an opportunity to review the case and provide argument on the Veteran's behalf prior to the case being returned to the Board. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs