Citation Nr: 1647004 Decision Date: 12/15/16 Archive Date: 12/30/16 DOCKET NO. 16-14 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than February 3, 1997 for the grant of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine. 2. Entitlement to an effective date earlier than February 3, 1997 for the grant of service connection for right lower extremity sciatica. 3. Entitlement to an effective date earlier than February 3, 1997 for the grant of service connection for left lower extremity sciatica. 4. Entitlement to an initial disability rating greater than 20 percent prior to August 1, 2009 and a disability rating greater than 40 percent beginning August 1, 2009 for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine. 5. Entitlement to an initial disability rating greater than 10 percent prior to February 26, 2013 and a disability rating greater than 40 percent beginning February 26, 2013 for right lower extremity sciatica. 6. Entitlement to an initial disability rating greater than 10 percent prior to February 26, 2013 and a disability rating greater than 40 percent beginning February 26, 2013 for left lower extremity sciatica. 7. Entitlement to an effective date earlier than February 26, 2013 for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from August 1956 to January 1958. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which effectuated a March 2012 award of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine, assigning a 20 percent disability rating effective November 28, 1997 and a 40 percent disability rating effective August 1, 2009. This decision also granted service connection for bilateral lower extremity sciatica, assigning separate 10 percent disability ratings effective November 28, 1997. The Veteran disagreed with both the effective dates and disability ratings assigned in the March 2012 rating decision and perfected this appeal. In a February 2016 rating decision, the RO granted an earlier effective date of February 3, 1997 for service connection for the lumbar spine disability and associated bilateral sciatica. An increased initial rating of 20 percent (effective February 3, 1997) was granted for the Veteran's lumbar spine disability and increased ratings of 40 percent were granted for his bilateral lower extremity sciatica effective February 26, 2013. Because the earlier effective dates for both the back and lower extremities and higher ratings for the lower extremities did not constitute a full grant of the benefits sought, since an even earlier effective dates and higher ratings are possible and the Veteran has not indicated he is satisfied or content with the effective dates/ratings assigned, the granting of the earlier effective dates and higher ratings did not abrogate his pending appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Also in the February 2016 rating decision, the RO granted a TDIU effective February 26, 2013. The Veteran's representative submitted a notice of disagreement as to the effective date assigned for the TDIU in May 2016 and no statement of the case has been issued. While the Veteran did not submit a formal claim for a TDIU until April 2012, the record shows that the Veteran has been unemployed since 1969 and, during the course of his appeal for service connection for a low back disability stemming as far back as 1995, the Veteran has alleged that his low back disability prevented him from working. As such, the claim for a TDIU prior to February 26, 2013 is inferred with the claim for a higher initial rating and evidence that the Veteran was unemployed prior to February 26, 2013. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to higher initial ratings for the lumbar spine and bilateral lower extremity disabilities as well as the issue concerning entitlement to an effective date earlier than February 26, 2013 for the assignment of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran first initiated a claim for service connection for a back disability in December 1971. This claim was denied on several occasions but, in pertinent part, in a September 1995 decision, the Board found that the Veteran had failed to submit new and material evidence to reopen his previously denied claim for service connection for a back disorder. 2. In a letter dated December 20, 1995 (date stamped January 16, 1996 and received by the Board on February 13, 1996) the Veteran wrote that he wished to appeal the September 1995 decision. He also wrote that he was requesting additional time so that he could hire another attorney to represent him. 3. In a March 1996 letter, the Board informed the Veteran that his December 20, 1996 letter which was "received by the Board on January 16, 1996" was being forwarded to the RO as there was no appeal pending at the Board. 4. In a letter received by the Board on February 3, 1997 the Veteran wrote that he had not re-appealed earlier because he was looking for an attorney willing to take his case but continued to express disagreement with the September 1995 Board decision. 5. In a March 1997 rating decision, the RO found that the Veteran had failed to submit new and material evidence to reopen his claim for a back disability. 6. In a letter received by VA on November 28, 1997, the Veteran reiterated that he had not re-appealed earlier because he was looking for an attorney willing to take his case but continued to express disagreement with the September 1995 Board decision. 7. In an April 1998 rating decision, the RO again found that the Veteran had failed to submit new and material evidence to reopen his claim for a back disability. 8. In a March 2012 decision, the Board granted service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine. 9. In a March 2012 rating decision, the RO effectuated the Board's March 2012 award of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine, assigning a 20 percent disability rating effective November 28, 1997 and a 40 percent disability rating effective August 1, 2009. This RO also granted service connection for bilateral lower extremity sciatica, assigning separate 10 percent disability ratings effective November 28, 1997. The Veteran disagreed with both the effective dates and disability ratings assigned in the March 2012 rating decision and perfected this appeal. 10. The letter dated December 20, 1995 (date stamped January 16, 1996 and received by the Board on February 13, 1996) can be construed as a claim to reopen the Veteran's claim for service connection for a back disorder and has remained pending until service connection for a back disability was granted in the March 2012 Board decision. CONCLUSIONS OF LAW 1. The September 1995 Board decision is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2015). 2. The criteria for an effective date of January 16, 1996, for the grant of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 3. The criteria for an effective date of January 16, 1996, for the grant of service connection for right lower extremity sciatica associated with degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine have been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an earlier effective date of January 16, 1996, for the grant of service connection for left lower extremity sciatica associated with degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine have been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's representative argues that the Veteran is entitled to an effective date earlier than February 3, 1997 for the grant of service connection of a low back disability and resulting bilateral lower sciatica. He notes that, following a September 1995 Board decision which found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for a back disorder, the Veteran submitted an application to reopen his previously denied claim in December 1995 (received by VA on January 16, 1996) and that the Veteran had continually prosecuted his claim since that date. I. Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for back and bilateral lower extremity disabilities. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, it appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file and the Veteran has not contended otherwise. II. Analysis Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)(West 2014); 38 C.F.R. §§ 3.400, 3.401 (2014). The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). The pending claims doctrine provides that a claim remains pending in the adjudication process, even for years, if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). The Veteran first initiated a claim for service connection for a back disability in December 1971. This claim was denied on several occasions but, in pertinent part, in a September 1995 decision, the Board found that the Veteran had failed to submit new and material evidence to reopen his previously denied claim for service connection for a back disorder. In a letter dated December 20, 1995 (date stamped January 16, 1996 and received by the Board on February 13, 1996) the Veteran wrote that he wished to appeal the September 1995 decision. He also wrote that he was requesting additional time so that he may hire another attorney to represent him in his case. In a March 1996 letter, the Board informed the Veteran that his December 20, 1996 letter which was "received by the Board on January 16, 1996" was being forwarded to the RO as there was no appeal pending at the Board. In a letter received by the Board on February 3, 1997 the Veteran wrote that he had not re-appealed earlier because he was looking for an attorney willing to take his case but continued to express disagreement with the September 1995 Board decision. In a March 1997 rating decision, the RO found that the Veteran had failed to submit new and material evidence to reopen his claim for a back disability. In a letter received by VA on November 28, 1997, the Veteran reiterated that he had not re-appealed earlier because he was looking for an attorney willing to take his case but continued to express disagreement with the September 1995 Board decision. In an April 1998 rating decision, the RO again found that the Veteran had failed to submit new and material evidence to reopen his claim for a back disability. In a March 2012 decision, the Board granted service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine. In a March 2012 rating decision, the RO effectuated the Board's March 2012 award of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine, assigning a 20 percent disability rating effective November 28, 1997 and a 40 percent disability rating effective August 1, 2009. This RO also granted service connection for bilateral lower extremity sciatica, assigning separate 10 percent disability ratings effective November 28, 1997. The Veteran disagreed with both the effective dates and disability ratings assigned in the March 2012 rating decision and perfected this appeal. The Board agrees with the Veteran's representative, that the letter dated December 20, 1995 (date stamped January 16, 1996 and received by the Board on February 13, 1996) constituted a claim to reopen the Veteran's claim for service connection for a back disorder and has remained pending until service connection for a back disability was granted in the March 2012 Board decision. As above, the effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). In this case, the December 20, 1995 letter was not received until January 16, 1996. As such, January 16, 1996 is the date of claim. With a date of claim of January 16, 1996, established, the Board will next turn to the question of whether the Veteran is entitled to an earlier effective date than February 3, 1997, for the award of service connection for his service-connected back disability and associated sciatica of the lower extremities. 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 shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and 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 the later. 38 C.F.R. § 3.400. The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Id; Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). Since the January 16, 1996 claim remained pending until service connection was ultimately granted in March 2012, and entitlement existed at the time of that claim; the Veteran is entitled to an effective date of January 16, 1996, for service connection. As for the possibility of an even earlier effective date, the Board notes that, while the Veteran first filed a claim for service connection for a back disability in December 1971, the September 1995 Board decision found that the Veteran failed to submit new and material evidence to reopen his previously denied claim. The Veteran did not appeal this decision and it became final based on the evidence of record at the time. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. The September 1995 Board decision is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A, 7104; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). CUE in the September 1995 Board decision is neither alleged nor raised by the record. Furthermore, there is no correspondence from the Veteran received between September 1995 and January 16, 1996 that can be construed as a claim to reopen. In sum, the Veteran is entitled to an earlier effective date of January 16, 1996, but no earlier, for the grant of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine and associated bilateral lower extremity sciatica. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An earlier effective date of January 16, 1996, for the grant of service connection for degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine is granted. An effective date of January 16, 1996, for the grant of service connection for right lower extremity sciatica is granted. Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of January 16, 1996, for the grant of service connection for left lower extremity sciatica is granted. REMAND With regard to a higher initial rating for the Veteran's back disability, in September 2016 correspondence the Veteran's representative wrote that VA had failed to consider evidence warranting a rating greater than 20 percent for the period prior to August 1, 2009. Specifically, the representative noted that the Veteran's back disability has required the use of a back brace since at least 1978 and the Veteran had been found to be totally disabled due to his back disability by numerous treating physicians since the 1970s. More recently, in a February 2005 opinion, Dr. C.N.B. wrote that the Veteran had been totally disabled due to the severity of his back disability: "his clinical symptoms of back pain radiating down his left leg, his left leg weakness which requires the use of a cane, his inability to sit/stand/carry objects or bend down have all been well documented over the years and moreover these clinical findings are consistent with secondary medical sequealla of his 1957 service injury and in my medical opinion his clinical signs and symptoms make it impossible for him to work." With regard to the period prior to August 1, 2009, while the Veteran reportedly had flexion to 45 degrees during a May 2006 VA examination which warrants only a 20 percent disability rating under the general spine formula, the Board notes that the Veteran appeared to have greater loss of motion prior to May 2006. Specifically, a March 1972 private treatment record shows that the Veteran has severe limitation of range of motion of the lumbar spine at 20 percent of normal in lateral and forward bending (which translates to just 18 degrees of forward flexion). A November 1992 VA examinations shows that the Veteran had forward flexion to 31 degrees. More recently, a May 2001 VA treatment record shows that the Veteran's lower back was extremely rigid with no flexibility on ROM (range of motion) testing. In view of the disparity of flexion findings for the lumbar spine prior to August 1, 2009, a retrospective opinion regarding the severity of the Veteran's lumbar spine disorder prior to August 1, 2009, would be helpful in resolving the initial rating claim on appeal. Specifically, the examiner should comment on the level of severity of the Veteran's lumbar spine disorder prior to August 1, 2009. With regard to the period beginning August 1, 2009, while the August 2009 VA examination noted flexion to 20 degrees which warrants only a 40 percent disability rating under the general spine formula, the Board notes that the Veteran appears to have greater loss of motion following the August 2009 VA examination. Significantly, the February 2013 VA examination report shows that the Veteran refused range of motion testing due to safety concerns. Pursuant to the general spine formula, a higher 50 percent disability rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine and a higher 100 percent disability rating is warranted when there is unfavorable ankylosis of the entire spine. Unfortunately, the February 2013 VA examiner did not comment as to whether the Veteran demonstrated unfavorable ankylosis of the entire thoracolumbar or whole spine. As such, a new examination and opinion as to whether the Veteran has demonstrated unfavorable ankylosis of the entire thoracolumbar or whole spine at any point during the appeal is necessary to decide the claim. With regard to higher initial ratings for the Veteran's bilateral lower extremity disabilities, in September 2016 correspondence the Veteran's representative wrote that VA's determination that the Veteran's bilateral lower extremity disabilities were characterized by only "mild incomplete paralysis" prior to February 26, 213 was not based on any actual medical evidence. The Veteran's representative noted that the Veteran was never provided with any nerve conduction studies, or other objective testing sufficient to find that the disability was characterized as "mild." Rather, the overwhelming evidence, to include the Veteran's many statements, indicated a disability far worse than mild and one which was characterized by severe numbness, tingling, and loss of sensation. In fact, since the Veteran's initial application for service connection for a back disability in December 1971, the Veteran had consistently reported that his symptoms included "radiating pain going down into legs." Several examiners for the period prior to 1997 noted that the Veteran necessitated the use of a cane in order to walk and had a significant limp on his left side. Further, the very fact that the Veteran was granted an increased rating of 40 percent in February 2013 is a clear indication of the significance of his disability. According to the representative, the Veteran clearly suffered a disability more severe than simply "mild" for the period from February 1997 to February 2013. Private treatment records show abnormal sensory findings as early as March 1972. Specifically, a March 1972 private examination report shows that sensory evaluation was inaccurate because the Veteran tended to discount pin-prick testing as "nothing." He reportedly seemed to have obtundation of pinprick testing throughout the perianal region bilaterally and throughout both lower extremities. While a May 1985 private electromyography was reportedly within normal limits (W.N.L.) with no evidence of axonal degeneration, in a November 1992 VA examination it was noted that the Veteran walked with a cane with a slightly anteriorly flexed trunk and appeared to be in pain with each step. A May 2001 VA treatment record shows decreased fine touch below knee level and weak left hallux elevation. It also showed that the Veteran walked with a cane with left drop foot. The assessment was left lower extremity sciatica. Significantly, it was noted that the Veteran underwent EMG/NCS (electromyography/nerve conduction studies) in 1996 at the Ponce VA Hospital. An August 2009 VA spine examination showed no muscle atrophy, however, on VA spine examination in January 2011 there was muscle atrophy. Initially, the Board notes that the 1996 EMG/NCS findings noted in the May 2001 VA treatment record are not yet associated with the claims file. As such findings are pertinent to rating the Veteran's bilateral lower extremity sciatica they should be obtained. Furthermore, in view of the abnormal neurological findings dating back to March 1972, a retrospective opinion regarding the severity of the Veteran's lower extremity sciatica would be helpful in resolving the remaining increased rating claim on appeal. Specifically, the examiner should comment on the level of severity of the Veteran's bilateral lower extremity sciatica both prior to and beginning February 26, 2013. With regard to the issue concerning an effective date earlier than February 26, 2013 for the assignment of a TDIU, the Board notes that while the Veteran did not submit a formal claim for a TDIU until April 2012, the record shows that the Veteran has been unemployed and in receipt of disability benefits from the Social Security Administration since June 1969. During the course of his appeal for service connection for a low back disability stemming as far back as 1995, the Veteran has alleged that his low back disability has prevented him from working. Significantly, a March 1975 statement from Dr. U.V. shows that he had treated the Veteran since April 1973 and it was his opinion that the Veteran was permanently and totally disabled to work due to his discogenic disease. A TDIU may be assigned where the combined rating for the veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran's service-connected disabilities presently include degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine (rated as 20 percent disabling beginning February 3, 1997 and rated as 40 percent disabling beginning August 1, 2009); right lower extremity sciatica (rated as 10 percent disabling beginning February 3, 1997 and rated 40 percent disabling beginning February 26, 2013); and left lower extremity sciatica (rated as 10 percent disabling beginning February 3, 1997 and rated 40 percent disabling beginning February 26, 2013). A combined disability evaluation of 40 percent is in effect beginning February 3, 1997, 50 percent beginning August 1, 2009, and 80 percent beginning February 26, 2013. Therefore, the Veteran did not meet the minimum schedular criteria for a TDIU prior to February 26, 2013 but does meet such criteria beginning February 26, 2013. 38 C.F.R. § 4.16(a). In Correia v. McDonald, 28 Vet. App. 158 (2016) the Court held that the last sentence of 38 C.F.R. 4.59 (2014) requires examiners to report pain on weight bearing and non-weight bearing ranges of motion; or say why such measurements aren't feasible. The remanded issues concerning a higher rating for the Veteran's back and lower extremity disabilities are inextricably intertwined with the Veteran's claim for an earlier effective date for a TDIU and must first be addressed by the AOJ. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, while the Veteran does not currently qualify for a TDIU pursuant to 38 C.F.R. § 4.16(a) prior to February 26, 2013, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). With respect to assignment of a TDIU prior to February 26, 2013 under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director of Compensation and Pension for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds the medical opinions discussed above are plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected back and lower extremity disabilities. Accordingly, the Board finds that the claim should be submitted to the Director of Compensation and Pension for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). Finally, there appears to be a significant gap in treatment records from April 1991 to May 2001 (including the missing 1996 EMG/NCS report). Given the need to remand for additional development, any outstanding VA medical records dated from April 1991 to May 2001 and after December 2015 should be obtained for consideration in the Veteran's appeal. The Veteran should also be given an opportunity to identify any non-VA healthcare provider who has treated him for his claimed disorders. Thereafter, all identified records should be obtained for consideration in his appeal. 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). Expedited handling is requested.) 1. Provide the Veteran an opportunity to identify any outstanding VA or non-VA treatment records for his service-connected lumbar spine and bilateral lower extremity disabilities. Thereafter, all identified records, to include a 1996 EMG/NCS from the Ponce VA Hospital referred to in a May 2001 VA treatment record as well as VA records dated from April 1991 to May 2001 and December 2015 to the present, should be obtained. For private records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. After all available records are associated with the claims file, arrange for the Veteran to undergo VA examination for evaluation of his service-connected back and associated bilateral lower extremity disabilities. The contents of the entire electronic file, to include a complete copy of the REMAND, must be reviewed by the examiner. All appropriate tests and studies should be accomplished and considered by the examiner. The examiner should provide all examination findings, along with the complete rationale for the comments and opinions expressed. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees). The examiner should render specific findings as to whether there is objective evidence should report whether there is functional loss due to pain, weakness, excess fatigability, incoordination or flare-ups. The examiner should express such additional functional loss in terms of additional degrees of limited motion. The examiner should also report pain on weight bearing and non-weight bearing ranges of motion and in passive and active ranges of motion; or say why the measurements aren't feasible. The examiner should record the Veteran's reports of limitation during flare-ups; and opine whether these reports are consistent with the disability demonstrated on examination. The examiner should also indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, when the ankylosis began, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The examiner should opine as to the severity of the lumbar spine limitation of motion since 1996 and whether there is listing of the entire spine, or a positive Goldthwaite's sign. These findings are needed to rate the disability under criteria that were in effect prior to September 23, 2002. The examiner should record any neurological manifestation(s) of lumbar spine disability, to include radiculopathy of the right or left lower extremity. The examiner should assess the severity of such disability as mild, moderate, moderately severe, or severe. The examiner should report the frequency of any incapacitating episodes (i. e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. The physician should also indicate whether there has been any change in severity of the low back and bilateral lower extremity disabilities since January 16, 1996. Specifically, the examiner should address: (a) a March 1972 private treatment record showing that the Veteran had severe limitation of motion of the lumbar spine at 20 percent of normal in lateral and forward bending (which translates to just 18 degrees of forward flexion) as well as noting that the sensory evaluation was inaccurate because the Veteran tended to discount pin-prick testing as "nothing." The Veteran reportedly seemed to have obtundation of pinprick testing throughout the perianal region bilaterally and throughout both lower extremities. (b) a March 1975 statement from Dr. U.V. showing that he had treated the Veteran since April 1973 and that the Veteran was permanently and totally disabled to work due to his discogenic disease. (c) a May 1985 private electromyography which was reportedly within normal limits (W.N.L.) with no evidence of axonal degeneration. (d) a November 1992 VA spine examination report showing that the Veteran had forward flexion to 31 degrees and that the Veteran walked with a cane with a slightly anteriorly flexed trunk and appeared to be in pain with each step. (e) a May 2001 VA treatment record showing that the Veteran's lower back was extremely rigid with no flexibility on ROM testing. The record also shows decreased fine touch below knee level and weak left hallux elevation. It also shows that the Veteran walked with a cane with left drop foot. The assessment was left lower extremity sciatica. Significantly, it was noted that the Veteran underwent EMG/NCS in 1996 at the Ponce VA Hospital. (f) a February 2005 statement wherein Dr. C.N.B. wrote that the Veteran had been totally disabled due to the severity of his back disability: "his clinical symptoms of back pain radiating down his left leg, his left leg weakness which requires the use of a cane, his inability to sit/stand/carry objects or bend down have all been well documented over the years and moreover these clinical findings are consistent with secondary medical sequealla of his 1957 service injury and in my medical opinion his clinical signs and symptoms make it impossible for him to work." (g) a May 2006 VA spine examination report showing forward flexion to 45 degrees. (h) an August 2009 VA spine examination noting forward flexion to 20 degrees and no muscle atrophy. (i) A January 2011 VA spine examination noting forward flexion to 15 degrees and that there was muscle atrophy. (j) the February 2013 VA examination report showing that the Veteran refused range of motion testing due to safety concerns (k) September 2016 correspondence from the Veteran's representative noting that the Veteran's back disability has required the use of a back brace since at least 1978 and the Veteran had been found to be totally disabled due to his back disability by numerous treating physicians since the 1970s; that the Veteran's bilateral lower extremity sciatica was far worse than mild prior to February 26, 2013 and one which was characterized by severe numbness, tingling, and loss of sensation. In fact, since the Veteran's initial application for service connection for a back disability in December 1971, the Veteran had consistently reported that his symptoms included "radiating pain going down into legs." Several examiners for the period prior to 1997 noted that the Veteran necessitated the use of a cane in order to walk and had a significant limp on his left side. Further, the very fact that the Veteran was granted an increased rating of 40 percent in February 2013 is a clear indication of the significance of his disability. According to the representative, the Veteran clearly suffered a disability more severe than simply "mild" for the period from February 1997 to February 2013. In so doing, the examiner should identify the approximate date of the change(s), and provide an assessment of the severity of the disabilities on each date. Additionally, the examiner should describe the functional effects of the Veteran's service-connected disabilities has on the Veteran's ability to perform the activities of daily living, to include the physical acts required for employment since the grant of service connection effective January 16, 1996. The examiner should also discuss the combined effects of the Veteran's service-connected disabilities (i.e., degenerative disc disease, L4-L5 with chronic lumbar strain and degenerative joint disease of the lumbosacral spine, right lower extremity sciatica, and left lower extremity sciatica ) have on the Veteran's activities of daily living, to include the mental and physical acts required for employment. The examiner should set forth the complete rationale for the conclusions reached in a printed (typewritten) report. 3. If the Veteran's disability ratings do not qualify him for a TDIU pursuant to 38 C.F.R. § 4.16(a) during any period beginning January 16, 1996, refer this case to the Under Secretary for Benefits of the Director, Compensation and Pension Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran, and his representative, should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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