Citation Nr: 1315535 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 93-02 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a total rating based on unemployability due to service connected disability (TDIU) prior to August 12, 1988. 2. Entitlement to a TDIU from January 15, 2000 to September 16, 2005. 3. Entitlement to higher initial evaluations for chronic bilateral eye ocular toxoplasmosis residuals, rated as 30 percent disabling from July 25, 1997 to September 28, 2011, and as 50 percent disabling from September 29, 2011. 4. Entitlement to an earlier effective date for the grant of service connection for the grant of service connection for chronic bilateral eye ocular toxoplasmosis residuals. 5. Entitlement to an earlier effective date for the grant of a 60 percent evaluation for lumbar degenerative disc disease. REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 1958 to January 1960. This matter came before the Board of Veterans' Appeals (Board) from a February 1986 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. Jurisdiction over the appeal currently resides with the St. Petersburg, Florida RO. The Board observes that a TDIU was initially denied in a February 1986 rating decision; a statement of the case was issued in October 2002, and the Veteran perfected his appeal. The TDIU claim was denied by the Board in March 2006. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2008 memorandum decision, the Court vacated and remanded the matter for additional consideration by the Board. The issue of a TDIU was remanded by the Board in July 2011. In a November 2011 rating decision, the RO granted the benefit, effective September 17, 2005. In March 2012, the Board remanded the issue of entitlement to a TDIU prior to September 17, 2005 for additional development. In a May 2012 rating decision, the RO granted a TDIU for the period from August 12, 1988 through January 15, 2000. In September 2012 the Board remanded the issue of a TDIU for the remaining periods, specifying that consideration was for the period prior to August 12, 1988 and for the period from January 15, 2000 to September 16, 2005. The Board granted service connection for a right and left eye disability by way of a July 2011 decision. The Board noted therein that the issue of entitlement to an increased evaluation for the lumbar spine degenerative disc disease had been remanded by the Board in January 2008 and that the issue remained in remand status at the RO. By way of a rating decision that was issued on December 19, 2011, the RO implemented the Board's decision and assigned initial evaluations for chronic bilateral eye ocular toxoplasmosis residuals of 30 percent from July 25, 1997 to September 28, 2011, and 50 percent from September 29, 2011. The attorney submitted a notice of disagreement with respect to the assigned ratings and the effective date of service connection in December 2012. In that rating decision, the RO also increased the rating for the lumbar spine disorder to 60 percent effective August 12, 1988. A supplemental statement of the case was issued in November 2011 and the case was returned to the Board. Pursuant to a March 2012 decision, the Board denied a rating in excess of 60 percent from August 12, 1988. In the notice of disagreement, which was postmarked December 19, 2012, the attorney disagreed with the rating and the effective date. While the notice of disagreement is recognized with respect to the effective date issue, the Board determined that a disability rating in excess of 60 percent, from August 12, 1988, was not warranted. The Board decision therefore subsumed the rating decision with respect to the assigned rating and the rating decision cannot be the subject of an appeal in that respect. The Board notes that a Virtual VA e-file exists for this Veteran. This e-file was reviewed for new or relevant information; however, a review of the e-file revealed that it contained duplicative information that is already in the file or evidence that is otherwise not pertinent to the current claims. The issues of entitlement to a TDIU for the period prior to August 12, 1988, higher evaluations for chronic bilateral eye ocular toxoplasmosis, an earlier effective date for the grant of service connection for bilateral eye ocular toxoplasmosis and an earlier effective date for the grant of a 60 percent evaluation for lumbar degenerative disc disease 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. For the period from January 15, 2000 to September 16, 2005, the Veteran's service-connected disabilities included lumbar degenerative disc disease, evaluated as 60 percent disabling; chronic bilateral eye ocular toxoplasmosis residuals, evaluated as 30 percent disabling; and left ear hearing loss, evaluated as noncompensably disabling. 2. For the period from January 15, 2000 to September 16, 2005, the weight of the evidence is against a finding that as a result of his service-connected disabilities, the Veteran was unable to obtain or retain substantially gainful employment. CONCLUSION OF LAW For the period from January 15, 2000 to September 16, 2005, the criteria for the award of a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. While the TDIU claim was denied prior to the enactment of the Veterans Claims Assistance Act, the Board finds that the appellant has actual knowledge of how to substantiate the claim for TDIU. This is demonstrated by his submission of documentation indicating why his claim should be granted on the basis that his employment during the time period in question was marginal in nature. See 38 C.F.R. § 4.16(a). In addition, he is represented by an attorney. Furthermore, the statement of the case and supplemental statements of the case have explained the criteria for TDIU and the reasons for denying the claim. Accordingly, a reasonable person would be expected to understand what information and evidence would substantial the claim. With respect to VA's duty to assist, the Board notes that pertinent treatment records, to include reports of examinations conducted during the course of this appeal, are associated with the claims file. The Board finds that the examinations conducted are adequate in that they were performed by neutral, skilled providers who conducted thorough physical examinations and produced reports reflective of the Veteran's functional ability. The examiners produced reports that are consistent with the contemporaneous evidence and form an adequate basis upon which to decide the questions raised in this appeal. Neither the Veteran nor his attorney has identified any additional evidence or information which could be obtained to substantiate his claim. The Board is also unaware of any such outstanding evidence or information. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis As outlined above, the issue of entitlement to a TDIU is currently under consideration for two periods, that prior to 1988, which will be the subject of the remand below, and for the period from January 15, 2000 to September 16, 2005. Generally, under 38 C.F.R. § 3.340(a)(1), total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the purpose of one 6o percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), a TDIU might be awarded even if the requisite schedular criteria is not met if a claimant is nevertheless shown to be "unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities". Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, 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 as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The Board observes that a claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. In reviewing claims for assignment of earlier effective dates for TDIU awards, the applicable law is the same as that governing assignment of earlier effective dates for increased rating claims. The report of a March 1999 VA MRI indicates that there was a focal L5-S1 disc osteophyte complex laterally that minimally narrowed the neural foramen and touched on the left L5 nerve root. The radiologist indicated that it did not appear to impinge the nerve root. On VA spine examination in June 1999, the Veteran reported that he had received some short term benefit from physical therapy and that he had also seen an acupuncturist. The impression was moderate arthritis of the lumbar spine with decreased range of motion which might make certain activities of daily living such as lifting or bending to be much more difficult for the Veteran. On VA neurological examination in June 1999 the Veteran endorsed severe low back pain and problems with his legs. He noted that he had occasional tingling in his legs but denied numbness. He indicated that he had daily spasms in his hamstrings and calves. He noted that his ambulatory status was quite limited and that he could only walk very short distances before experiencing pain. Motor strength in the lower extremities was 5/5 but the Veteran had give-away weakness secondary to severe low back pain. The examiner indicated that it did not appear that the Veteran had a significant radiculopathy at that time. He recommended muscle relaxants for significant muscle spasm. In a June 2000 statement, the Veteran related that he had lost thousands of dollars due to his inability to work in a profession at which he was truly skilled, and stated his belief that he was entitled to a higher disability evaluation. On VA examination in July 2000, the Veteran reported daily dull achy low back pain with occasional radiation to the left hip and lower extremity. He also endorsed numbness in the bilateral buttocks and posterior thighs after prolonged sitting. He indicated that he had flare-ups of pain with any prolonged waking, bending, stooping, or lifting. He noted that such flare-ups occurred from two to three times per month and kept him from performing his usual daily activities. The examiner noted that the Veteran was able to perform all activities of daily living independently and that he was employed full time as a sales associate. Physical examination revealed no significant muscle spasm on palpation. There was mild tenderness. The diagnosis was degenerative arthritis and mild degenerative disc disease of the lumbar spine. He did not have significant neural compression and there was no evidence of nerve damage. August 2000 VA physical therapy notes indicate that the Veteran worked selling fuel additives. He reported decreased pain following treatment. He indicated that he found the exercises challenging but not overly taxing. An October 2000 report indicates that the Veteran had improvement in active range of motion over the course of treatment. In May 2002 the Veteran indicated that current chiropractic care had been beneficial. In a December 2002 statement, the Veteran's attorney asserted that the evidence of record supports multiple symptomatologies inconsistent with employability, including severe pain and spasms, severe limitation of forward and backward bending, leg numbness, and inability to travel long distances. It was noted that his inability to travel had interfered with his duties as a salesman. She also noted that while the Veteran was currently working, his former employer had made special accommodations because of his health status and his current employer was unaware of the specifics of his medical condition. In September 2005, C.H.B., D.C. stated that the Veteran had received treatment for a longstanding low back problem. He noted that he had reviewed several reports indicating that the severity of the Veteran's condition rendered him unable to obtain gainful employment. He indicated that the Veteran had been able to find work in recent years that allowed him to work with his limitations. He stated that the Veteran continued to suffer with his low back condition and opined that he had reached the point where even with accommodation, it had become unbearable for him to continue working. He concluded that the Veteran was unable to continue gainful employment in any capacity and should be considered at total disability. In November 2011 the Veteran reported that he had last worked on September 16, 2005. In an April 2012 statement, the Veteran's attorney maintained that during the 1988 to 2005 time period, the Veteran met the marginal employment provisions of 38 C.F.R. § 4.16(a). She asserted that the Veteran's employment fell within the scope of marginal employment under the regulation, even though his income for those years exceeded the poverty threshold. She indicated that the Veteran was hired by a long time social friend to whom he reported directly. She noted that the Veteran was not required to work particular hours or maintain a regular office schedule, indicating that he was salaried and also paid bonuses related to his sales. She indicated that the Veteran was knowledgeable about the company's products and use and had a background in motor sports dating many years when he had raced and become acquainted to others in the industry. She pointed out that the Veteran was hired to promote the company's products and increase sales, and that his employer was aware of his physical limitations and agreed to give him a great deal of discretion in his schedule, which accommodated his functional limitations due to his back pain and frequent need to miss work due to medical appointments. She stated that the Veteran's employment came to an end for several reasons: his employer lost control of the company so the Veteran no longer had an understanding friend as his supervisor; his contacts in other companies were replaced by others with whom the Veteran did not have a relationship; and due to the limitations caused by his painful back disability, the Veteran was unable to either increase the level of his work to cultivate new contacts or to expand his sales territory. The Veteran stated in April 2012 that he returned to work in 2000 because of unique circumstances based on a combination of a social friendship and contacts made as an occasional racer and as a long time fan of racing. He indicated that his friend owned a specialty lubricant company, and that the friend was willing to give him a chance despite his health problems. He noted that his employer appreciated his knowledge of racing and the product, as well as his contacts within the sport. He indicated that he was not required to maintain regular office hours and that his compensation was salary in addition to bonuses. He noted that he often attended local racing events but rarely traveled outside of that area because sitting in the car for long periods increased his back pain and diminished his ability to function at all in a work environment. He stated that he was able to schedule his work around medical appointments and incidents of back pain due to the unique nature of his job and long time friendship with his employer. He stated that in 2003 his friend was forced out of the company and that he did not disclose his health problems to the new owners for fear of being fired. He noted that they did not make major changes in his work responsibilities. He indicated that he eventually lost other long time contacts due to various reasons - retirements, transfers, changes in management at other companies - and that due to his inability to travel he could not make sales calls or attend racing events to develop new contacts. In June 2012 the Veteran's attorney argued that there was no evidence to support a finding that the Veteran could have obtained or retained employment but for the protected environment created by a man with whom he socialized. She noted that the friend gave the Veteran discretion to work according to his assessment of his own physical condition, did not require the Veteran to adhere to a regular schedule, and allowed him to perform duties at home. In September 2012, W.R.B., past CEO and current shareholder of the company indicated that he took over as CEO in late 2000 and thus became supervisor over all sales operations. He noted that the Veteran was already employed by the company in the capacity of sales and that as such, he was paid a salary plus commission, the industry standard. He stated that at the time he came on board, he was not made aware of any "special considerations" for the Veteran due to any physical, mental, or emotional disabilities. In October 2012, B.P., former owner of the company stated that the Veteran worked for him with the understanding that he had a bad back. He noted that it was OK for the Veteran to stand up, walk around, or sit down to make his pain easier. He indicated that they worked with him and made various concessions because of his back issue. He stated that the Veteran was a good employee. In November 2012, the Veteran stated that Mr. B. did not play an active role in the company until 2003. He noted that Mr. B. did not supervise his work. He indicated that after Mr. B's arrival no one required him to modify the arrangement he had made with Mr. P. to accommodate his back disability. He described his work activities as continuing as they had when Mr. P. hired him. In a November 2012 statement the Veteran's attorney pointed out that VA must also consider the Veteran's eye disability in considering the nature of the Veteran's employment and reasons for termination. Having carefully reviewed the record, the Board has determined that for the period from January 15, 2000 to September 16, 2005, a TDIU is not warranted. In this regard, the Board notes that the crux of his argument is that he was marginally employed during this time. He does not, however, assert that his income was beneath the poverty level. From 2000 to 2003, his income exceeded $30,000 each year. In 2004 and 2005 respectively the poverty threshold was $9,645 and $9,973. In 2004, his income was $15,334. In 2005 his income was $7,810. However, he stopped working in September 2005 and was granted TDIU effective September 17, 2005. For the weeks in 2005 that he worked, his earnings exceeded the poverty level of approximately $192 per week. In her November 2012 argument, the Veteran's attorney states that the Veteran obtained employment only because he was hired by a social friend who was agreeable to making accommodations for the Veteran's back disability. The Board acknowledges that the Veteran was afforded a flexible schedule and was able to take time off when his back disability was causing him difficulty. However, it is clear from the record that the Veteran performed real work as a sales person and was not merely compensated to do a "show up" job. While the record reflects that he was afforded the opportunity to work at his own pace and received concessions based on his back disability, there is no indication that he was unable to perform such work to the standards set by his employer. He was paid pursuant to the industry standard according to his employer and his work benefitted both his employer and himself. The evidence when taken as a whole does not show that during this period the Veteran's service-connected disabilities precluded such employment. He was able to maintain substantially gainful employment until September 16, 2005. While the Veteran may not have been able to travel long distances, he was able to attend local events and perform other job duties locally. A former employer stated that the Veteran was a good employee for whom they made concessions due to his back issue by allowing him to stand up, walk around or sit down to assist with pain management and worked with him on various concessions. There was no indication from the employers that the Veteran was unable to perform the required duties or that he worked in a protected environment. While some accommodations were made for the Veteran as a result of his back disability, he ultimately performed the duties of a sales person, despite his disabilities. As such, the Board finds that the Veteran's employment during the period from January 15, 2000 to September 16, 2005 was not marginal. The Board acknowledges the argument of the Veteran's attorney that his back disability is not shown to have improved during the period in question. While it is clear that the Veteran continued to suffer from significant symptoms related to his back disability, it is also clear, as set forth above, that the Veteran was in fact a contributing member of the business by which he was employed. The medical record by Dr. B., dated in September 2005, marks the point at which even with accommodation, it was not possible for the Veteran to continue working. Prior to September 2005, there is no indication in the medical record that the Veteran was unemployable during the period in question. Rather, the report of a July 2000 VA examination indicates that the Veteran was employed full time and that he was independent in all activities of daily living. The Veteran underwent physical therapy in 2000 and was noted to report improvement. In May 2002 he indicated that chiropractic treatment had benefitted him. In sum, the medical statement by Dr. B., dated in September 2005, marks the first time at which the Veteran's back symptoms reached the point that, despite accommodations, he was unable to continue to work. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b) ); 38 C.F.R. § 3.102. ORDER Entitlement to a TDIU for the period from January 15, 2000 to September 16, 2005 is denied. REMAND In its September 2012 remand, the Board directed that a social and industrial survey be conducted to determine whether the Veteran was unemployable for the period prior to August 12, 1988. In October 2012 a VA staff physician reviewed the record and supplied an opinion. She provided an addendum in October 2012. In a November 2012 statement, the Veteran's attorney argued that the survey was conducted by a staff physician. She noted that there was no evidence of compliance with the Board's order that the survey be conducted by an individual with the appropriate expertise as a social and industrial specialist. The attorney also argued that while the AOJ had complied with the Board's March 2012 order to refer the issue of a TDIU prior to August 1988 to the Director of Compensation and Pension for extraschedular consideration under 28 C.F.R. § 4.16(b), additional evidence had been developed concerning that period pursuant to the Board's September 2012 remand, and as such the issue should again be referred. A remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Because it is unclear whether the physician who reviewed the record and provided the October 2012 opinions possesses the requisite expertise as a social and industrial specialist, the Board concludes that remand is in order to ensure compliance with its previous orders. The Board also notes that in a November 2011 rating decision, the RO granted service connection for chronic bilateral eye ocular toxoplasmosis residuals, assigning a 30 percent evaluation from July 25, 1997 to September 28, 2011, and a 50 percent evaluation from September 29, 2011; and increased the evaluation of the Veteran's lumbar degenerative disc disease to 60 percent effective August 12, 1988. Notification of this rating decision is dated December 19, 2011. In a communication post-marked December 19, 2012, the Veteran's attorney indicated that the Veteran disagreed with the rating and effective dates assigned to the bilateral eye disability and the effective date assigned to the low back disability. The filing of a Notice of Disagreement places a claim in appellate status. Therefore, a Statement of the Case regarding these issues must be issued to the appellant. As such, these issues must be remanded. Manlincon v. West, 12 Vet. App. 239, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should refer the Veteran's claims file to an appropriate social and industrial specialist to determine whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of the service-connected low back disability, based upon his education and work experience. The claims file, including a copy of this remand, should be made available to the examiner for review. The Board will lay out relevant facts that should be considered by the specialist. * The Veteran alleges that from 1984 to 1988 he was unable to work. The Board requires an opinion as to whether the Veteran was unable or secure or follow a substantially gainful occupation as a result of a service-connected low back disability, based upon his education and work experience. The Veteran was not service connected for any other disability during the 1984 to 1988 time frame. * The Veteran injured his back in service in July 1958. The service treatment records are in a manila envelope. The service treatment records do not show that the Veteran was paralyzed from the waist down or in the lower extremities from the injury (the Veteran has alleged such fact at times). The Veteran has more recently reported that he was describing pain so severe that he could not walk and had to be carried into the hospital by fellow servicemen. See Veteran's statement dated in November 2012, p. 5. * In June 1973, the RO awarded service connection for lower back strain and assigned a noncompensable evaluation. * On September 19, 1983, the Veteran sustained an on the job injury. * In October 1983, the Veteran was seen by Dr. G. Howard Bathon, who noted the September 1983 injury and described the Veteran "in obvious distress with a spastic scoliosis." See record tabbed on the right in green in Volume 1 with the applicable month and year. * In a November 1983, letter, Dr. Bathon described the injury the Veteran sustained, the contemporaneous clinical findings, and what the x-rays revealed. He prescribed physical therapy and noted the prognosis was good and he would evaluate the Veteran in two weeks. See record tabbed on the right in green in Volume 1 with the applicable month and year. * In mid November 1983, Dr. Bathon saw the Veteran and described him as "significantly improved," but that he was still having pain in his back radiating to his right leg. Dr. Bathon wrote that the Veteran was "improving slowly." See record tabbed on the right in green in Volume 1 with the applicable month and year. * In a November 1984 letter, Dr. E.J. Park wrote he had provided acupuncture treatments in August, September, October, and November, and that he thought the Veteran was "totally incapacitated with a slight improvement in his condition." See record tabbed on the right in green in Volume 1 with the applicable month and year. * In July 1985, the Veteran was hospitalized from the 23rd to the 31st with back pain. In the discharge summary, Dr. S.L. Baron wrote the Veteran had been treated conservatively with bed rest, pelvic traction, physical therapy, and intravenous Decadron "with good symptomatic resolution over the course of his hospital stay." Dr. Baron noted the Veteran was not pain free at discharge, but that his back pain and radicular symptoms had improved "quite nicely." He described the Veteran as "walking well" at the time of discharge. See record tabbed on the right in green in Volume 1 with the applicable month and year. * In September 1985, the Veteran was hospitalized again with back and sciatic pain. He underwent an epidural block, which Dr. Baron wrote had "excellent results with good decrease in back and leg pain." See record tabbed on the right in green in Volume 1 with the applicable month and year. * A September 1985 VA examination report shows the examiner noted the Veteran was wearing a back brace. The examiner reported clinical findings pertaining to the lumbar spine and lower extremities. See record tabbed on the right in yellow in Volume 1 with the applicable month and year. * Dr. Baron saw the Veteran again in October 1985 for follow up. He examined the Veteran and reported the clinical findings. See record tabbed on the right in green in Volume 1 with the applicable month and year. * In an October 1985 letter, Dr. Baron wrote, "Due to the severity of pain and spasm, I feel that this patient will most likely be unable to resume his former occupation. He will be unable to lift heavy objects, sit or stand for prolonged periods of time, bend, stoop or squat. He may need intermittent out[]patient physical therapy, and may need intermittent admissions to the hospital should symptoms increase in severity. . . . At the present time, [the Veteran] is unable to work." See record tabbed on the right in green in Volume 1 with the applicable month and year. * In November 1985, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Unemployability. There, he wrote he had worked for a tire company doing "sales" from March 1976 to April 1983. He then worked at another tire company doing "sales" from June 1983 to September 1983. He indicated he had a high-school education with no other education or training either before or after he became too disabled to work. See form tabbed on the left in orange in Volume 1 with the applicable month and year. * A private medical record appears to have been completed around December 1985. The chiropractor neglected to put a date on the document but noted he had last seen the Veteran in December 1985. There, he wrote the Veteran was unable to stand, walk, or ride for any long periods of time and that any type of activity incited pain. See record tabbed on the right in green in Volume 3 with the applicable month and year. * A January 1986 examination by Dr. Schwerha shows that the Veteran reported he could walk various distances before pain and was advised not to lift. The Veteran also reported being able to drive a car and do independent acts of daily living. The Veteran stated he could sit for about a half hour, stand for about a half hour, and walk for about an hour at a time. Dr. Schwerha noted the Veteran had no trouble dressing and getting on and off the examining table. He also noted the Veteran had "no trouble walking in or out or around the office." He provided clinical findings relating to his physical examination of the Veteran's lumbar spine. (The examiner noted the Veteran had loss of vision in the right eye. The Veteran is not service connected for the right eye in the 1980s.) Dr. Schwerha concluded, "There is no doubt that this individual does have some disability due to his chronic back condition and loss of vision in the right eye. I feel that he is not a candidate for any kind of heavy or medium physical labor. His occupation was basically that of a salesman[,] and I feel there are many types of selling positions he could hold at the present time, providing his condition does not deteriorate." See record tabbed on the right in green in Volume 3 with the applicable month and year. * Dr. El-Attrache wrote several letters on behalf of the Veteran in May 1986 and June 1986, and these letters provide essentially the same facts. He wrote that the Veteran was 46 years old with chronic low back pain, which "prevent[ed] him from traveling long distances and sitting in a car or in one position for more than an hour at a time." Dr. El-Attrache stated the Veteran was unable to perform duties as a travel salesman for the tire company. He concluded the Veteran was "permanently disabled." See record tabbed on the right in green in Volume 3 with the applicable month and year. * Most of the 1980 medical records are in Volumes 1 and 3 of the claims file. Some of the records in Volume 3 are duplicative of records in Volume 1. While the Board has laid out some of the more relevant facts, it asks the specialist to review the entire record. Based on your review of the record, please answer the following questions: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected low back disability, alone, precluded him from obtaining and maintaining substantially gainful employment of any type, based on his educational and occupational background at around the time of his 1985 claim for individual unemployability to August 1988? When providing the opinion, please do not consider the Veteran's nonservice-connected disabilities or his age. (ii) If you find the Veteran was capable of obtaining and maintaining substantially gainful employment of any type, based on his educational and occupational background at around the time of his 1985 claim for individual unemployability to August 1988, please provide an example or examples of the types of jobs he could have obtained and/or maintained at that time. A complete rationale should accompany all opinions expressed. The examiner must indicate in the examination report that he or she is a social and industrial specialist. 2. After the requested opinion has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. The social and industrial report should be returned to the examiner if deficient in any manner. 3. Refer the claim for a TDIU prior to August 12, 1988 to the Director of Compensation and Pension Service for extraschedular consideration in compliance with 38 C.F.R. § 4.16(b). 4. Issue a statement of the case on the issues of entitlement to higher initial ratings for bilateral eye ocular toxoplasmosis, as well as the issue of an earlier effective date for service connection for the bilateral eye disability and an earlier effective date for the 60 percent evaluation for the lumbar spine disability, pursuant to 38 C.F.R. § 19.26 (2012). If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, the RO should return the claim to the Board for the purpose of appellate disposition. 5. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs