Citation Nr: 1754955 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-15 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for hepatitis. 2. Entitlement to an initial disability rating in excess of 30 percent for depression. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to September 18, 2009, on an extraschedular basis. 4. Entitlement to Dependents' Educational Assistance (DEA) prior to September 18, 2009. 5. Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome of the lumbar spine. 6. Entitlement to a disability rating in excess of 10 percent for cervical intervertebral disc syndrome. 7. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right upper extremity. 8. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left upper extremity. 9. Entitlement to a temporary rating for convalescence for intervertebral disc syndrome of the cervical spine beyond December 31, 2009. 10. Entitlement to special monthly compensation based on housebound status beyond January 1, 2010. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1979 to June 1988. He was discharged under honorable conditions. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina The issues of entitlement to a TDIU and DEA for the period prior to September 18, 2009, on an extraschedular basis, were previously characterized as entitlement to an effective date earlier than November 9, 2012, for the grant of TDIU and DEA. However, as the claim for entitlement to TDIU and DEA remains on appeal, there is no need to characterize the claim as one for an earlier effective date. The issues of entitlement to increased ratings for a lumbar spine disorder, cervical spine disorder, bilateral upper and lower extremity radiculopathy; service connection for hepatitis; entitlement to a temporary total rating for convalescence for intervertebral disc syndrome of the cervical spine beyond December 31, 2009; and entitlement to special monthly compensation based on housebound status beyond January 1, 2010 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. February 2006 and July 2006 rating decisions denied the claim of entitlement to service connection for hepatitis; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period and it is now final. 2. Evidence received subsequent to the expiration of the appeal period is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for hepatitis. 3. The Veteran's depression has been manifested by social and occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. 4. Resolving all doubt in the Veteran's favor, prior to September 18, 2009, the Veteran was precluded, by reason of his service-connected lumbar spine disorder, from securing or following a substantially gainful occupation consistent with his education and occupational experience. 5. As TDIU is granted prior to September 18 2009, the Veteran is entitled to DEA benefits prior to September 18, 2009 as well. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for hepatitis. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The criteria for a disability rating in excess of 30 percent for depression have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). 3. Prior to September 18, 2012, the criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). 4. Prior to September 18, 2009, the criteria for a grant of DEA benefits are met. 38 U.S.C.A. §§ 3500, 3501, 3510; 38 C.F.R. § 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361(Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014). "New" evidence is defined as existing evidence not previously submitted to agency decision-makers. "Material" evidence means evidence that, 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Factual Background and Analysis: New and Material Evidence The RO initially denied service connection for hepatitis in February 2006. The RO continued a denial in a July 2006 rating decision. The RO determined that the Veteran did not have a confirmed clinical diagnosis of hepatitis. He did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, that decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2017). In November 2012, the Veteran filed a claim of entitlement to service connection for hepatitis. Evidence received since the rating decisions in February 2006 and July 2006 includes the Veteran's statements and private treatment records. November 2009 and September 2010 private treatment records from Pitts Memorial Hospital documented the Veteran's history of hepatitis B. The private treatment records from Pitts Memorial Hospital constitute new and material evidence. This follows because the evidence relates to previously unestablished elements that are necessary to grant entitlement to service connection for hepatitis; namely, a history of hepatitis. Accordingly, reopening of the claim for service connection for hepatitis is warranted. Legal Criteria: Disability Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § § 3.321 (a), 4.1(2017). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2016). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service-connected depression was rated 30 percent disabling, pursuant to the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434, which is included under the General Rating Formula for Rating Mental Disorders. 38 C.F.R. § 4.130. According to the General Rating Formula for Rating Mental Disorders, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, and recent events. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The symptoms listed in Diagnostic Code 9434 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9434 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's depression that affect the level of occupational and social impairment, including, if applicable, those identified in Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) or the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). In evaluating the evidence, the Board also considers the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally reflects that a person is functioning pretty well, and has some meaningful interpersonal relationships. DSM-IV, at 46. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. A GAF score of 41-50 is assigned where there are serious symptoms, for example, suicidal ideation, severe obsessional rituals, or any serious impairment in social, occupational, or school functioning, for example, no friends, inability to keep a job. Id. Although GAF scores are important in evaluating mental disorders, the Board must consider all of the pertinent evidence of record for this time period and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the percentage VA disability rating to be assigned. The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126 (2017); VAOPGCREC 10-95, 60 Fed. Reg. 43186 (1995). The Veteran was provided a VA psychiatric examination in March 2010. His symptoms included depressed mood, suspiciousness, sleepless nights, panic attacks, and mild memory loss. He reported difficulty sleeping because of his pain. He described his marriage as shaky because of his illnesses and irritability. He often stayed home alone and did not like to be around people. He last worked in 2005 due to his back disorder. A mental status examination revealed appropriate hygiene, appropriate behavior, good eye contact, depressed mood, some impaired impulse control, normal speech, difficulty with concentration, normal thought processes, no impairment in judgment, mildly abnormal memory, and difficulty maintaining attention and focus. He reported some passive suicidal thoughts. The VA examiner diagnosed depression secondary to his lumbar spine and left shoulder disorder. The VA examiner found that the Veteran was unable to establish and maintain effective work and social relationships. He was unable to manage his benefits because of difficulty concentrating. The VA examiner concluded that his psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and normal conversations. A GAF score of 55 was assigned. VA treatment records from October 2010 to July 2013 noted the Veteran's increased stress, poor sleep, anxiety, occasional crying spells, poor motivation/concentration, and irritability. Mental status examinations showed that the Veteran presented casually dressed, pleasant, cooperative, and fully oriented. His eye contact was good; speech was fluent and nonpressured; mood was euthymic, anxious, or depressed; affect was congruent; thought processes were coherent, linear, and logical; insight and judgment were fair; and impulse control was intact. He no longer engaged in hobbies that he used to enjoy and had to adjust to being disabled/unable to work. He reported good family relationships and a good marital relationship. He expressed frustration related to providing childcare for his grandchildren. March 2011 VA treatment records documented the Veteran's increased anxiety and marital problems. In March 2012, his wife reported that the Veteran frequently yelled at the children. He requested stronger medication. He reported spending time with his grandchildren, doing a little computer repair, and caring for his grandchildren. There was no evidence of hallucinations, paranoia, or delusions. He reported some suicidal thoughts in January 2011 and February 2012, but denied suicidal/homicidal thoughts during other mental health visits. GAF scores ranged from 45 to 60. The Veteran was provided a VA examination in November 2013. His symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner found that the Veteran's depression symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, A GAF score of 68 was assigned. Sometimes, he spent time with his friends around the house. He spent most of his time with his seven grandchildren. He reported ongoing problems with his daughter. The Veteran had not worked since 2005. He stated that sometimes he felt like dying. VA Treatment records from October 2015 to October 2016 indicated that his psychiatric disorder was manifested by poor sleep, anxious mood, and sadness. Mental status examinations revealed that the Veteran was neatly dressed, groomed, verbal, and responsive. He displayed fluent speech, coherent and linear thought processes, anxious or euthymic moods, congruent affect, fair to good insight and judgment, and grossly intact cognition. He denied suicidal or homicidal ideations, hallucinations, and delusions. He slept two to four hours at night, secondary to his pain. In October 2015, the Veteran reported less anxiety. In April 2016, the Veteran reported a bad episode with Zoloft. He reported that his wife told him that he attempted to kill himself by jumping out of a second story window. His grandchildren saw him talking to people who were not there. The wife clarified that the Veteran was feverish because he missed a dose of is Zoloft, but did not think he was attempting suicide. In May 2016 and October 2016, he expressed increased anxiety related to his back surgery. As mentioned above, the Veteran's depression was assigned a 30 percent disability rating. Therefore, for entitlement for the next higher rating to be established, the evidence must demonstrate that the Veteran's depression symptoms caused or most nearly approximated occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § § 4.7, 4.130, Diagnostic Code 9431 (2017). The Board finds that the competent, credible, and probative evidence establishes that he is not entitled to a disability rating in excess of 30 percent for his depression. The Veteran's depression did not manifest with occupational and social impairment, with reduced reliability and productivity. The VA examiners noted that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and normal conversations. The Board finds that the Veteran's symptomatology, to include depressed mood, suspiciousness, panic attacks, mild memory loss, increased stress, poor sleep, anxiety, occasional crying spells, poor motivation/concentration, irritability, disturbances of motivation and mood, sadness, and some difficulty establishing and maintaining work and social relationships, is contemplated in the 30 percent rating. In March 2010, he described a shaky relationship with his wife, but otherwise did not report any marital issues. He described increased stress involving his daughter and grandchildren. The medical evidence showed poor concentration; however, he last worked in 2005 and stopped due to his back disorder. He exhibited no flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impaired judgment, or impaired abstract thinking. The March 2010 VA examiner noted mild memory loss and difficulty establishing and maintaining effective work and social relationships, but the medical evidence does not suggest that such symptoms manifested persistently or consistently. Specifically, subsequent VA treatment records and the November 2013 VA examination report did not document memory loss or difficulty establishing and maintaining work and social relationships. He reported some passive suicidal thoughts in March 2010, January 2011, February 2012, and November 2013, however, there was no plan or intent. Therefore, while suicidal ideation, memory impairment, difficulty in establishing and maintaining effective work and social relationships, and irritability, are considered in the rating criteria for higher evaluations, the Board finds that such symptoms as noted during the period under consideration are not of such a severity or frequency so as to more nearly approximate a higher rating as they do not result in occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that, in the absence of more severe symptomatology more nearly approximating such ratings, the Veteran is not entitled to a rating in excess of 30 percent. The Board has also considered that the symptoms listed in Diagnostic Code 9434 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of his depression. These include, but are not limited to crying spells. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, or suspiciousness. See Mauerhan, 16 Vet. App. 436. In reaching the above conclusion, the Board has also considered the Veteran's assigned GAF scores. During the pendency of this claim, the Veteran's GAF scores have ranged from 45 (illustrating serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning) to 68 (illustrating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships). While the lower scores do suggest serious impairment in social and occupational functioning, the objective symptoms and findings of the competent medical providers of record do not support such a degree of occupational and social impairment. As such, the notation of a GAF score as low as 45 does not in and of itself demonstrate that a higher disability evaluation is warranted. The Board recognizes that the Veteran believes that he is entitled to an evaluation in excess of 30 percent for his service-connected psychiatric disability. However, the record fails to contain any evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as determining the degree of occupational and social impairment stemming from reported symptomatology. The competent medical examiners of record have examiner the Veteran and objectively determined the degree of impairment stemming from this case. In their opinion, the Veteran's symptomatology did not result in occupational and social impairment of such severity as to warrant a schedular evaluation in excess of 30 percent for a psychiatric disability at any time during the pendency of this appeal. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to an evaluation in excess of 30 percent for depression must be denied. TDIU and DEA 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. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "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. §§ 3.340 (a)(1), 4.15 (2017). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16 (b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension Service. Id. Where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director of Compensation and Pension Service. Id. The Board does not have jurisdiction to assign an extraschedular rating in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Prior to September 18, 2012, service connection was in effect for a lumbar spine disorder, rated as 40 percent disabling from March 7, 2000; depression, rated as 30 percent disabling from September 18, 2009; residuals of left shoulder injury, rated as noncompensable from June 14, 1988, and 20 percent disabling from January 28, 2008; radiculopathy of the left and right upper extremities, rated as 10 percent disabling for each extremity from September 18, 2009; cervical intervertebral disc syndrome, rated as 10 percent disabling from September 18, 2009; and radiculopathy of the right and left lower extremities, rated as noncompensable from September 18, 2009. The Veteran's combined disability rating was 40 percent from March 7, 2000, 50 percent from January 28, 2008; and 80 percent from September 18, 2009. In this regard, the case was referred to the Director, Compensation Service who, in July 2013, denied entitlement to an extraschedular TDIU. The Director opined that the record presented no evidence that the Veteran was unable to secure and follow any substantially gainful occupation by reason of his service-connected disabilities prior to September 18, 2009. A March 2000 VA examination report indicated that the Veteran's lumbar spine disorder was manifested by severe low back pain when bending, lifting, or sitting for long periods of time. He reported that his usual occupation was an auto mechanic, but that he was unemployed since October 1999. The Veteran submitted a TDIU application in May 2000. He indicated that he was previously employed in a manufacturing type job, but stopped working in October 1999 due to his lumbar spine disorder. In May 2000, he was attending community college fulltime for electronic servicing technology. During a January 2004 VA examination, the Veteran reported that his severe back pain was elicited by physical activity, sitting, and standing. He reported that he took eight to ten Vicodin per day for his pain symptoms. He last worked in 1999 and missed a minimal of 4 days of work per week due to his lumbar spine disorder. An August 2004 TDIU application indicated that the Veteran obtained an associate's degree in electronics in 2004. A June 2005 VA examination report indicated that the Veteran experienced severe back pain which was relieved by medication. He stated that he lost about three years of work due to his lumbar spine disorder. The VA examiner determined that the Veteran was unable to perform any heavy lifting or prolonged single position maneuvers at work. December 2005 VA treatment records noted that the Veteran's low back pain increased in the past month due to his new job as a forklift operator. The job required a lot of lifting and his symptoms responded poorly to the use of over-the-counter medications. In a March 2006 letter, his private treatment provider stated that the Veteran's heavy work activities aggravated his chronic back pain problem. It was suggested that the Veteran engage in less physically demanding work. A June 2007 Social Security Administration (SSA) decision found that the Veteran was disabled since August 2, 2002 due to his lumbar spine disorder. It was noted that the Veteran worked from December 2005 to January 2007 in substantial gainful activity. The SSA considered this period a trial work period. SSA records noted that the Veteran previously worked as a manufacturing technician. He worked as a material handler from December 2005 to January 2007. Hearing testimony from the Veteran's coworker explained that the Veteran required assistance to perform his work duties during such period. SSA medical records noted that the Veteran was restricted in standing and sitting without breaks at will, and that he was able to work four hours per day three to four days per week. He was able to lift less than 10 pounds. In December 2008, the Veteran reported that he medicated daily and was in too much pain to attempt to work. He also reported that he worked in a manufacturing type job from October 2005 to December 2006, but lost three months of employment during that time due to his lumbar spine disorder. Based on the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that TDIU is warranted prior to September 18, 2012. During the relevant period, the Veteran was unable to secure or maintain any form of substantially gainful employment consistent with his education and occupational background due to his service-connected lumbar spine disorder. The evidence indicated that the Veteran stopped working in October 1999. He worked again from December 2005 to January 2007, but missed about three months of work for his lumbar spine disability. SSA records also showed that he received assistance from his coworker to complete his work duties during that period. There is no evidence that the Veteran worked from October 1999 to December 2005, however, the Veteran reported that he attended college fulltime from May 2000 to 2004. The Board notes that the Veteran obtained an associate's degree in electronics, however his work experience included jobs in manufacturing, auto mechanics, and material handling. In 2004, the Veteran reportedly took eight to ten Vicodins per day for his back pain. In January 2004, he reported that he last worked in 1999 and missed a minimum of 4 days of work per week due to his lumbar spine disorder. Resolving reasonable doubt in the Veteran's favor, the Board finds that he is unable to secure and maintain any form of substantially gainful employment consistent with his education and occupational background due to his service-connected lumbar spine disorder. Accordingly, entitlement to a total disability rating based on individual unemployability on an extra-schedular basis is warranted for the period prior to September 18, 2009. For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510; 38 C.F.R. §§ 3.807 (a), 21.3021. The Veteran's grant of DEA benefits was provided in connection with his grant of entitlement to TDIU. As TDIU has been granted for the period prior to September 18, 2009, the claim for DEA benefits is also granted for the period prior to September 18, 2009. ORDER New and material evidence having been received, entitlement to service connection for hepatitis is reopened. Entitlement to a disability rating in excess of 30 percent for depression is denied. Entitlement to a TDIU on an extraschedular basis for the period of the claim prior to September 18, 2009, is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to DEA benefits for the period of the claim prior to September 18, 2009, is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND Lumbar Spine, Cervical Spine, Radiculopathy, and SMC The Veteran's last VA examination for his lumbar spine disorder and associated lower extremity radiculopathy was conducted in October 2013. The Veteran underwent a L3-5 secondary laminectomy and a L4-5 transforaminal lumbar interbody fusion in June 2016. The subsequent medical records are insufficient to evaluate the current severity of the Veteran's lumbar spine disorder. Therefore, in light of the Veteran's June 2016 lumbar spine surgery, a remand is necessary to afford the Veteran a VA examination to determine the current severity of his lumbar spine disorder. See Green v. Derwinski, 1, Vet. App. 212, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Additionally, the Veteran was most recently afforded VA examination for his cervical spine disorder and associated radiculopathy in March 2010. In a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. It does not appear that the previous VA examiners conducted Correia compliant testing. Based on the foregoing insufficiencies, a remand is required in order to obtain adequate orthopedic examinations addressing the cervical and lumbar spine disorders. With respect to the ratings for the bilateral upper and lower extremity radiculopathy associated with the lumbar spine and cervical spine disorders on appeal, the disability benefits questionnaire (DBQ) utilized by VA examiners for examinations of the spine includes the collection of information related to associated neurological impairment. The Board finds that a remand is warranted for the matters of whether the Veteran is entitled to increased ratings for radiculopathy of the bilateral upper and lower extremities, because the evidentiary development related to the lumbar spine will likely also pertain to the radiculopathy. With respect the Veteran's claims that he is entitled to extensions for temporary rating for convalescence for intervertebral disc syndrome of the cervical spine and for special monthly compensation based on housebound status, the Board finds that such issues are also inextricably intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Hepatitis October 1984 service treatment records showed that the Veteran was hospitalized eight days due to hepatitis B. He denied drug use, sexual exposure, blood transfusions, or recent tattoo. It was noted that the Veteran's son died earlier that year due to leukemia and that his son had a bout of hepatitis when the disease was in the terminal stages. The condition improved at discharge. Post-service private treatment records from Pitts Memorial Hospital documented a history of hepatitis B. In a November 2015 statement, the Veteran suggested that his hepatitis was related to the vaccinations he received before going to Germany. He believed his hepatitis was related to exposure to non-sterile needles from vaccinations or contaminated food or water in Germany. The Veteran listed direct percutaneous exposure to blood as a risk factor. The Veteran has not been afforded a VA examination to address the etiology of his hepatitis. The Board finds that the low threshold necessary to provide an examination has been established in this case. McLendon v. Nicholson, 20 Vet. App. 79. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine and cervical spine disorders. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's lumbar spine and cervical spine disorders conducted during the course of the appeal. With regard to each examination, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. 3. Thereafter, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his hepatitis. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran's pertinent history, lay statements, and the examination results, the examiner should provide a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's hepatitis is etiologically related to service, to include the in-service diagnosis of hepatitis B. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. 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 2014). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs