Citation Nr: 1602972 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 10-16 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether a March 2003 rating decision that denied entitlement to service connection for posttraumatic stress disorder (PTSD) contained clear and unmistakable error (CUE). 2. Entitlement to an effective date earlier than November 16, 2007 for grant of entitlement to service connection for PTSD. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for lumbar spine spondylosis (originally claimed as back pain). 4. Entitlement to service connection for lumbar spine spondylosis (originally claimed as back pain). 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Jill Mitchell-Thein, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1971, including a tour of combat duty in Vietnam for which he received the Purple Heart and Combat Action Ribbon. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. A February 2008 rating decision granted service connection for PTSD with an initial 30-percent rating, effective in November 2007; and, determined new and material evidence was not received to reopen the low back claim. The Veteran appealed the assigned effective date for the grant of service connection and the denial of a reopening of the back claim. The April 2010 Statement of the Case (SOC) related to the appealed effective date reflects that the RO considered entitlement to an earlier effective date on the basis of CUE in the March 2003 rating decision. Hence, the Board may consider the CUE question. Cf. Jarrell v. Nicholson, 20 Vet. App. 326 (2006). A March 2013 rating decision awarded an increased initial rating from 50 to 70 percent for PTSD, effective in July 2010, and denied a TDIU. The Veteran also perfected an appeal of the denial of the TDIU. The Veteran testified at a Board hearing via video conference in November 2014 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. The issue of entitlement to service connection for lumbar spine spondylosis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO denied the Veteran's claim for entitlement to service connection for an acquired mental disorder based on panic attacks, feelings of restlessness, and impatience with people. 2. The March 2003 rating decision, after receiving a VA examination report that reflected a diagnosis of anxiety disorder, denied entitlement to service connection for an anxiety disorder not otherwise specified (NOS). The rating decision specifically addressed and rejected service connection for PTSD. 3. The Veteran neither appealed the March 2003 rating decision nor submitted new and material evidence within the one year appeal period. 4. The issue of whether the evidence before the RO at the time of the March 2003 rating decision denying entitlement to service connection for anxiety disorder NOS/PTSD met the criteria for PTSD is one that involves a weighing of the evidence and is one on which reasonable minds could differ. 5. VA received the Veteran's application to reopen his PTSD claim on November 16, 2007. 6. A March 2003 rating decision also denied entitlement to service connection for back pain. The Veteran did not appeal the claim nor did he submit evidence within one year of the rating decision. 7. The evidence added to the file since the March 2003 rating decision triggers additional assistance to the Veteran and addresses a missing element of proof related to the back claim. 8. The Veteran's service connected disabilities; posttraumatic stress disorder (PTSD), rated 70 percent disabling; tinnitus, residuals of a shell fragment wound of the left thigh, and residuals of a shell fragment wound of the right thigh, each rated 10 percent disabling; and malaria, and scars of the left upper arm, left lateral thigh, left medial elbow, right medial ankle; fascia defect and muscle hernia of the right lateral thigh, and bilateral hearing loss, each rated noncompensable; preclude gainful employment for which he would otherwise be qualified. CONCLUSIONS OF LAW 1. The March 2003 rating decision that denied entitlement to service connection for anxiety disorder NOS/PTSD is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2015). 2. The RO's March 2003 decision denying the claim for entitlement to service connection for anxiety disorder NOS/PTSD was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A (West 2014), 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.105 (2014). 3. The criteria for an effective date earlier than November 16, 2007, for the grant of entitlement to service connection for PTSD have not been met. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. §§ 3.156; 3.400(q), (r) (2015). 4. The March 2003 rating decision that denied entitlement to service connection for back pain is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302. 5. New and material evidence to reopen a claim of entitlement to service connection for back pain has been received, and the claim is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for TDIU are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA is not applicable to CUE claims. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). As service connection, an initial rating, and an effective date have been assigned for PTSD, the notice requirements of 38 U.S.C.A. § 5103(a) have been met as concerns that claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. The same is true for the new and material evidence claim, as the claim is in fact reopened in the decision below. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The AOJ obtained additional VA records from the 1970s referenced by the Veteran. The Veteran was also afforded an examination in conjunction with his application to reopen. See 38 C.F.R. § 3.159(c)(4)(iii). The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the hearing, the undersigned identified the issues before the Board, asked questions of the Veteran that ensured his testimony addressed the relevant evidence needed to prove his claims; and, suggested specific evidence he might seek that would support and prove his claims. Further, the undersigned held the record of the hearing open for 30 days so the Veteran could obtain additional evidence. Neither the Veteran nor his representative voiced any disagreement with the manner the hearing was conducted. Hence, the Board finds the applicable regulatory requirements, as interpreted in Bryant, were complied with. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Hence, the Board may address the merits of the appeal without prejudice to the Veteran. CUE Legal Requirements If the evidence establishes CUE in a prior RO rating decision, the decision will be reversed or amended. 38 C.F.R. §§ 3.104(a), 3.105(a). In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Board notes that a claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The Veteran has not met this burden, for the following reasons. Analysis Entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f) and § 4.125 (requiring PTSD diagnoses to conform to the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV) as the governing criteria for diagnosing PTSD. VA has implemented DSM-V. The Secretary, VA, however, has determined DSM-V does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Since DSM IV was the governing standard in 2003, the Veteran's CUE claim is governed by DSM-IV. The March 2003 rating decision denied entitlement to service connection for PTSD because the examiner who conducted the March 2003 PTSD examination did not diagnose the Veteran with PTSD. Instead, he rendered an Axis I diagnosis of anxiety disorder NOS. The Veteran and his attorney, however, assert that the denial was error because the examiner should have rendered a diagnosis of PTSD. The Board must reject the assertion. In order for there to have been CUE in the March 2003 rating decision, the RO must have in fact committed clear error. The Veteran and his attorney have not asserted that the correct facts were not in front of the rating board in March 2003 or that the RO did not apply 38 C.F.R. § 3.304(f) correctly. As set forth earlier, the applicable criteria for PTSD require a diagnosis of the disorder. The medical examiner opined the Veteran's reported symptoms did not meet the DSM-IV criteria for a diagnosis of PTSD. In as much as PTSD requires a diagnosis by a trained medical professional, see Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014), it would have been error for the rating board to have ignored the medical findings and opinion of the examiner and substitute its own judgment. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran's and his attorney's contention with the medical examiner's opinion is in fact a dispute over how the examiner assessed the Veteran's reported symptoms; or, put another way, an attempt to reweigh the evidence. A finding of CUE in the March 2003 rating decision as it pertained to the denial of entitlement to service connection for PTSD is therefore not warranted. In the Veteran's September 2008 Notice of Disagreement, wherein he asserted CUE in the March 2003 rating decision, also appears to assert that there was CUE by virtue of the fact the examiner opined the diagnosed anxiety disorder NOS was not causally connected to the Veteran's active service. The Veteran asserted that "I believe that the diagnosis made in 2003 should have been service-connected [sic] as I clearly had combat stressors . . . that would warrant the award of service-connection [sic] for a mental condition at that time." The RO's February 2003 examination request clearly reported the Veteran's combat exposure and asked if the Veteran had PTSD and, if so, was it related to the Veteran's combat duty. Thus, the examiner was fully apprised of the Veteran's combat exposure and wounds, as noted in the examination report. Thus, the Veteran is merely disputing the examination findings. Hence, neither was there CUE by virtue of the examiner opining that the anxiety disorder NOS was not causally connected to the Veteran's active service. The benefit of the doubt doctrine is not applicable to CUE motions. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involves more than a disagreement as to how the facts were weighed or evaluated). Earlier Effective Date Legal Requirements Generally, the effective date of an award based on an original claim, or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a). Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(a). Analysis In his written submissions, and his hearing testimony, the Veteran asserts that he is entitled to an effective date in October 2002, the date he filed his original claim related to a mental disorder. His attorney echoes the Veteran's assertions and, in addition to the CUE claim disposed of above, asserts an earlier date is required by the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Specifically, the Veteran's benefits were granted on the basis of the same symptoms he originally reported in 2002, regardless of the label attached to the claim; hence, his effective date should be retroactive to October 2002. In October 2002, VA received a claim from the Veteran for the following listed symptoms: experiencing panic attacks for certain situations-could not think and got urge to get away from the situation; feelings of restlessness; and, impatience with people, situations. In December 2002, the AOJ obtained a July 2000 VA outpatient entry that noted the Veteran reported he had not "gotten sleep since Nam." The AOJ arranged an examination. The March 2003 PTSD examination report reflects the examiner conducted a review of the claims file as part of the examination and noted the Veteran's military history, to include his two shrapnel fragment (SFW) wounds in Vietnam. The Veteran reported panic attacks when placed in stressful situations, and that they were related to his inability to perform well at work when asked a question he could not answer. He also reported a history of memory problems and had difficulty concentrating at work. The Veteran reported further that he angered fairly easily, and he had a temper. He also admitted to difficulty sleeping, he did not like crowds, and he liked to stay to himself. The examiner noted that, those reported symptoms notwithstanding, the Veteran denied being depressed most of the day, denied feelings of hopelessness or helplessness, guilt or suicidal ideation. The Veteran also denied nightmares or flashbacks from Vietnam, though he did have them in the past. He also denied any persistent avoidance of stimuli related to Vietnam, efforts to avoid thoughts of Vietnam, or feelings of detachment or estrangement from others. The Veteran also reported he did not like being in Georgia, as he preferred to return to Texas, but he denied a sense of a foreshortened future. The Veteran endorsed symptoms of increased arousal, and he had problems falling and staying asleep, some irritability, and difficulty concentrating, but he denied any hypervigilance or exaggerated startle response. Based on the interview and the mental status examination, the examiner rendered an Axis I diagnosis of anxiety disorder NOS. The examiner noted that the Veteran seemed to have various stressors at work and socially, the latter being related to his difficulty with coping with not being in Texas. The examiner also noted the Veteran had major problems at work. Nonetheless, the examiner noted the Veteran did not "seem to have a truly diagnosable picture of panic attacks," nor did his symptoms quite meet the criteria for PTSD. The examiner opined further that, since the Veteran did not meet the criteria for either major depression or anxiety disorder, a diagnosis of anxiety disorder NOS was established. The examiner opined further that the diagnosed anxiety disorder NOS was not causally connected to the Veteran's active service. In view of the fact that the March 2003 rating decision denied entitlement to service connection for anxiety disorder NOS, the Board must address whether the Veteran was in fact placed on notice that the substance of his PTSD claim had in fact been adjudicated. See Ingram v. Nicholson, 21 Vet. App. 232, 242-43 (2007). As just set forth above, while the rating decision labelled the denial as one for anxiety disorder, the rating decision specifically noted the examination findings that the Veteran's reported symptoms did not meet the criteria for a diagnosis of PTSD. Thus, even according proper consideration for Clemons, the Veteran's symptoms were fully considered and found wanting by the March 2003 rating decision. The March 2003 rating decision specifically noted in the last sentence of the discussion of the denial for anxiety disorder NOS that the Veteran did not meet the criteria for a diagnosis of PTSD. The Board notes that this was not repeated in the March 2003 letter that notified the Veteran of the decision. Nonetheless, the Veteran's September 2008 NOD indicates the Veteran's awareness that the March 2003 rating decision denied his claim because of the absence of a diagnosis of PTSD. Hence, the Veteran was on notice of the March 2003 denial, which afforded him the opportunity to appeal the decision. Since he did not appeal it, the decision became final. See 38 C.F.R. § 20.302. There remains one additional basis to be considered. As noted earlier, lay persons are not competent to diagnose PTSD. Young, 766 F.3d 1348. Lay reported history of record, however, may be used by a medical professional to establish a diagnosis at a later date. Id.; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The March 2003 PTSD examination report notes that the Veteran had not previously sought mental health or psychiatric treatment. Hence, there was no existing paper trail at that time. In his written submissions, the Veteran suggested that his private examiner, Dr. C, in a December 2007 evaluation report, disputed the March 2003 VA examination findings and conclusions. The Board acknowledges that where VA affords a claimant an examination, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2003 VA PTSD examination was conducted by a VA psychologist. The examiner reviewed the claims file, solicited and noted the Veteran's reported history and symptomatology from the Veteran, and conducted a mental status examination to determine if the Veteran met the DSM criteria for a diagnosis of PTSD. The examination report accurately reflects those actions as well as the examiner's rationale for his findings and opinions. Hence, the Board finds that the Veteran was afforded an adequate examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this vein, a fair reading of Dr. C's report is that, in light of the fact of how the Veteran manifested PTSD at his evaluation of the Veteran, the only explanation Dr. C could offer for the 2003 findings was that the Veteran was not totally honest with the VA examiner. Thus, the Board finds that Dr. C's comment is not in fact a critique of, or disagreement with, the VA examiner's opinion or examination of the Veteran. In light of the fact that Dr. C implicitly agreed that the Veteran's earlier reported symptomatology did not meet the criteria for a diagnosis of PTSD, there was no PTSD symptoms of record earlier than 2007 for a diagnosis retroactive to an earlier date. See Young, 766 F.3d 1348. Thus, as well as the fact that the unappealed March 2003 rating decision is final as to PTSD, VA received the Veteran's "PTSD" claim in October 2007. For allowances based on new and material evidence other than service department records, the effective date is the later of the date of the application to reopen or the date entitlement arose. 38 C.F.R. § 3.400(q). Hence, the Veteran's effective date for service connection for PTSD was assigned in accord with applicable law. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). New and Material Evidence If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The requirements for service connection provide that service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Background of Initial Claim The Veteran's October 2002 claim also asserted that he had developed back pain, and that he was unable to lift any object, as it caused increased back discomfort. The March 2003 rating decision reflects that the rating board considered the service treatment records, and VA treatment records dated from January 1973. Service treatment records noted no back-related complaints, to include as related to the Veteran's two instances of SFW wounds. The March 1971 Report of Medical Examination for Release from Active Duty reflects the Veteran's spine was assessed as normal. In July 2000, the Veteran reported constant back pain times three to four years. Physical examination revealed the back as scoliotic and tenderness at the lower back. Straight leg raising was positive at 45 degrees on the right, and at 75 degrees on the left. The Veteran was again assessed for complaints of back pain in November 2002. Physical examination revealed no abnormal spinal curve or paravertebral muscle spasm. Range of motion of all spinal segments was intact. The March 2003 rating decision noted that there was no evidence of treatment for a back condition in service, or a current chronic back condition related to active service. As noted earlier, an AOJ letter also dated in March 2003 informed the Veteran of the March 2003 rating decision. He did not appeal the decision or submit new and material evidence within one year of the decision. VA received the Veteran's application to reopen the claim in October 2007. Analysis The February 2008 rating decision reflects that the AOJ determined new and material evidence was not received to reopen the claim. On the other hand, the AOJ afforded the Veteran a VA back examination in conjunction with his claim, which generally is not done except where a claim is reopened. See 38 C.F.R. § 3.159(c)(4)(iii). Further, he was afforded another examination in June 2014. Hence, the Board infers the claim was in fact reopened and denied on the merits. Although the Board infers the claim was reopened, the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Thus, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The evidence added to the claims file since the March 2003 rating decision includes the Veteran's VA outpatient treatment records; two reports of VA examinations; and, his hearing testimony. The Veteran's hearing testimony included assertions of back pain that existed from his active service due, in his lay opinion, from the use of a spinal anesthetic for initial treatment of his second incident of SFWs. He also asserted that his back was injured from the force of the concussion from the land mind detonation that propelled him forward. In the interest of brevity, the Board will not conduct a detail analysis of the new evidence added to the record. Suffice it to say for now that it triggers additional assistance and relates to an unproved facet of the claim. Hence, the Board finds new and material evidence has been received. 38 C.F.R. § 3.156; see also Shade. Although the Board reopens the claim, it also finds that it is not sufficiently developed to render a decision on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); see also Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). A claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. As relevant to this claim, there must be at least one disability rated 40 percent disabling and additional service connected disability that combines for at least a 70 percent disabling. See 38 C.F.R. § 4.16(a). The Veteran has met the percentage requirements for TDIU since July 19, 2010. He has reported being unemployed since August 2007. In October 2015, a Vocational Expert provided a detailed opinion that the Veteran had become unemployable as the result of service connected disabilities beginning in 2007. There is essentially no opinion that weighs against that of the Vocational Expert. As such the evidence supports the grant of TDIU from at least July 19, 2010. ORDER The motion alleging CUE in the March 25, 2003 rating decision that denied entitlement to service connection for anxiety disorder/PTSD is denied. Entitlement to an effective date earlier than November 16, 2007 for grant of entitlement to service connection for PTSD is denied. New and material evidence has been received to reopen a claim for entitlement to service connection for lumbar spine spondylosis (originally claimed as back pain), and the claim is reopened. The appeal is granted solely to that extent. TDIU for the period beginning July 19, 2010, is granted. REMAND At a December 2007 fee-basis examination, opined that the Veteran's current back disability was not related to service. The examiner concluded that the lumbar spondylosis was due to the aging process. The examiner did not provide reasons for the opinion. As concerns the June 2014 examination, the attorney correctly notes that the examiner did not note the Veteran's records of complaints of back pain prior to 2000. The attorney also asserts that any impact of altered gait mechanics due to the SFWs to the lower extremities should have been considered by the examiner. The Veteran did not meet the percentage requirements for TDIU prior to July 19. 2010; but there is evidence that his service connected disabilities precluded employment prior to that date. The Board cannot grant TDIU in the first instance where a Veteran does not meet the percentage requirements; but is required to insure that the claim is forwarded to the Director of VA's compensation and pension service (C&P) for initial adjudication. Bowling v. Principi, 15 Vet App 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Send the claims file to the examiner who conducted the June 2014 VA spine examination. Instruct the examiner to again review the claims file and to specifically note pre-2000 entries that note the Veteran's complaints of either a back ache or low back pain on walking. Ask the examiner to advise in an addendum whether the additional review of the claims file changes in any way, the nexus opinion rendered in June 2014? A full explanation must be provided for the answer. Inform the examiner again as follows: the Veteran's lay reports must be considered in rendering the requested opinion; an opinion may not rely solely on the absence of documented medical treatment; if the absence of treatment is a significant matter for consideration, please explain why; and, please consider if there is at least a 50-percent probability that the Veteran's currently diagnosed lumbar spine spondylosis is due to the SFWs of the lower extremities, to include as due to altered gait mechanics, etc. If the examiner who conducted the June 2014 spine examination is no longer available, refer the claims file to an equally qualified examiner. Should the examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AOJ will arrange the examination. The claims file must be provided for review by the examiner as part of the examination. 2. Refer the issue of entitlement to TDIU prior to July 19, 2010 to the Director of C&P for adjudication in accordance with 38 C.F.R. § 4.16(b). 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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 2014). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs