Citation Nr: 1715897 Decision Date: 05/11/17 Archive Date: 05/22/17 DOCKET NO. 15-34 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to an effective date earlier than December 10, 1989, for the grant of service connection for tinnitus. 2. Entitlement to an effective date earlier than July 10, 2009, for the award of a 40 percent rating for service-connected left facial fracture with traumatic brain injury (TBI). 3. Whether new and material evidence has been received to reopen the previously denied claims for service connection for a lumbar spine disorder and a cervical spine disorder and, if so, whether service connection is warranted. 4. Entitlement to a rating in excess of 10 percent for service-connected tinnitus, to include on an extraschedular basis. 5. Entitlement to a rating in excess of 40 percent for service-connected TBI. 6. Entitlement to a rating in excess of 30 percent for service-connected mixed organic personality disorder with depression. 7. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Vanessa G. Ellerman, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1961 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. Jurisdiction over the Veteran's claims is currently with the RO in Cheyenne, Wyoming. In August 2016, the Veteran and his spouse testified before the undersigned Veterans Law Judge during a video conference hearing; a transcript of the hearing is of record. Although the Veteran did not perfect an appeal as to the issue of entitlement to an effective date earlier than December 10, 1989, for the award of service connection for tinnitus, during the August 2016 Board hearing, the undersigned Veterans Law Judge recognized that as being on appeal. Therefore, the requirement that there be a substantive appeal of that issue is deemed waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curiam order). Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Although the Veteran filed a formal claim for a TDIU in November 2016, during the August 2016 Board hearing, the Board recognized that entitlement to a TDIU had been raised in connection with his claims for increased ratings. Therefore, the Board has jurisdiction over this issue as part and parcel of his increased rating claims and has listed such on the title page. With regard to the Veteran's claims to reopen, the Board notes that, regardless of any RO determination, the Board must address the question of whether new and material evidence to reopen the claims has been received because the matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claims can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly, the Board has characterized the appeal as encompassing both matters set forth on the title page. Following the June 2015 statement of the case, additional evidence, including VA treatment records, were added to the record, and the Veteran has not waived agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304 (2016). However, with regard to the claims denied herein, the additional evidence is not pertinent to those claims. Furthermore, as the Board's decision concerning his petition to reopen his claims for service connection for a lumbar spine disorder and a cervical spine disorder, as well as entitlement to a TDIU from July 10, 2009, is completely favorable, the Veteran will not be prejudiced by the Board considering this evidence in the first instance. Finally, insofar as the additional evidence pertains to his claims for service connection and increased ratings, as the Board is remanding those claims, the AOJ will have an opportunity to review the evidence. The issues of entitlement to a compensable rating for service-connected left wrist fracture, and entitlement to service connection for posttraumatic stress disorder, osteoarthritis, joint disease, thumb hand, dental disorder, endocrinopathy, and epilepsy have been raised by the record in a November 2016 claim statement, but have not been adjudicated by the AOJ. Additionally, during his August 2016 hearing, the issue of whether there was clear and unmistakable error in the 1992 rating decision that granted service connection for tinnitus, effective December 10, 1989, was raised but it also has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to increased ratings for service-connected tinnitus, TBI, and mixed personality disorder; entitlement to service connection for a lumbar spine disorder and a cervical spine disorder; and entitlement to a TDIU prior to July 10, 2009, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a final January 1992 rating decision, service connection for tinnitus was granted, effective December 10, 1989. 2. The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for tinnitus prior to December 10, 1989. 3. In a February 2002 rating decision, the AOJ granted service connection for mixed organic personality syndrome with depression and assigned a 30 percent disability rating effective October 11, 1984, under Diagnostic Code 8045-9304 (exclusive of the period from May 8, 1993, to June 10, 1993 for which a temporary total rating was assigned under 38 C.F.R. § 4.29). 4. After the Veteran was notified of the decision and his appellate rights in June 2002, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case. 5. Following the July 2005 statement of the case, VA received the Veteran's claim seeking an increased rating for his service-connected TBI on July 10, 2009. 6. In a September 2010 rating decision, the AOJ awarded a 40 percent rating for the Veteran's service-connected TBI, effective July 10, 2009, the date his claim was received; it is not factually ascertainable that an increase in disability took place prior to that time. 7. A final February 2002 rating decision declined to reopen the Veteran's claims for service connection for a lumbar spine disorder and a cervical spine disorder, finding that new and material evidence had not been received. After he was notified of the decision and his appellate rights, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case. 8. Evidence received since the final February 2002 rating decision, is not cumulative and/or redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating his claim for service connection for a lumbar spine disorder and a cervical spine disorder. 9. The competent and credible evidence of record demonstrates that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities since July 10, 2009. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to December 10, 1989, for the award of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2016). 2. The criteria for an effective date prior to July 10, 2009, for the grant of a 40 percent rating for service-connected TBI have not been met. 38 U.S.C.A. §§ 5110; 38 C.F.R. § 3.155, 3.157, 3.400. 3. The February 2002 rating decision that denied service connection for a lumbar spine disorder and a cervical spine disorder is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 4. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 5. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met as of July 10, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). As the Board's decision with regard to his petition to reopen the claims for service connection for a lumbar spine disorder and a cervical spine disorder, as well as the claim for a TDIU from July 10, 2009, is completely favorable, no further action is required to comply with the VCAA and implementing regulations. With regard to the Veteran's claim for an earlier effective date for the award of service connection for tinnitus claims, he and his attorney have been notified of the reasons for the denial of the claim, and have been afforded opportunity to present evidence and argument. The Board finds that these actions are sufficient to satisfy any fundamental due process owed the Veteran. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claims, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Relevant to his claim for earlier effective date for a 40 percent rating for service-connected TBI, VA's duty to notify was accomplished in a September 2009 letter. Moreover, the Board notes that his claim is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issue. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (the Court held that as to the notice requirements for downstream earlier effective date claims following the grant of service connection, "that where a claim has been substantiated after enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). In this case, the Veteran's increased rating claim was granted and an effective date was assigned in the September 2010 rating decision on appeal. As such, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran has not alleged that VA has not fulfilled its duty notify or assist in the development of his claims, and review of the record fails to reveal any deficiency with respect to either the duty to notify or assist. Therefore, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Effective Dates A. Effective date prior to December 10, 1989, for the award of Service Connection for Tinnitus Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a 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). If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopen) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A claim is defined by regulation as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefit sought. Id. At the time the Veteran filed his claim in July 2009, under 38 C.F.R. § 3.157(a), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b). With respect to the phrase "the date entitlement arose," the Court has stressed what that phrase does not mean. In McGrath v. Gober, 14 Vet. App. 28, 35 (2000), the Board had found the earliest date that a VA examiner had diagnosed posttraumatic stress disorder as "the date entitlement arose" and used that date, rather than a much earlier date of receipt of claim, as the effective date. The Court soundly rejected that rationale. The Court stressed that the date of the medical evidence itself is irrelevant where an initial service connection claim is pending, even if it was submitted over twenty years after the time period in question. The Court offered, under the circumstances of an original claim for service connection, the date that the veteran submitted the claim or the date the veteran was released from active service, whichever applies, ultimately controls the effective date for benefits. Id. This conclusion is borne out in Lalonde v. West, 12 Vet. App. 377 (1999), where the Court stressed that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. The Veteran contends that an effective date earlier than December 10, 1989, for the award of service connection for tinnitus. During the August 2016 Board hearing, the Veteran argued that the appropriate effective date for the award of service connection was July 20, 1974, the day after he was discharged from active duty. He recognized that, although he never filed a claim for service connection, since the award was based upon a review of the record, and the medical evidence demonstrated tinnitus since service, the appropriate effective date was the day after he was discharged. The Veteran separated from active service in July 1974. That same month, he filed a formal claim for service connection for hearing loss. He did not submit a claim of entitlement to service connection for tinnitus within one year of service discharge. Therefore, assignment of an effective date back to the day following his service discharge is not possible. The Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss on December 10, 1990; however, there is no indication in the December 1990 claim that he intended to seek service connection for tinnitus. On August 21, 1991, the Veteran underwent a VA audiology examination during which he reported that he suffered from periodic bilateral tinnitus. An inferred claim for service connection for tinnitus was granted in a January 1992 rating decision, effective date December 10, 1989, based upon the day his claim for an increased rating for bilateral hearing loss was received. The Board notes that the AOJ misidentified the year in which the Veteran's claim for an increase was received, and granted service connection for an extra year. The Board has considered whether any evidence of record prior to December 10, 1989, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran indicates an attempt to apply for service connection for tinnitus. However, no document submitted prior to December 10, 1989, indicates intent to pursue a claim of entitlement to service connection for this condition. It is further noted that 38 C.F.R. § 3.157 is not applicable. Although some of the Veteran's service and post-service treatment records, including VA examination reports, document complaints of tinnitus, such medical records cannot constitute an initial claim for service connection as no intent to file a claim was noted. See Criswell v. Nicholson, 20 Vet App 501 (2006); Brannon, supra (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). Although the Veteran has generally argued that he never filed a claim for service connection and, since the January 1992 rating decision was based upon a review of his symptoms in the record to service connection, a claim, rather than a medical record, must be filed in order for any type of benefit to be paid and, here, is was the Veteran's claim for an increased rating for his bilateral hearing loss. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). As it is the "unequivocal command" of 38 U.S.C.A. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore, Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999), the RO granted the earliest effective date for a grant of service connection for tinnitus that the law allows. The exact date on which entitlement arose need not be ascertained in order to conclude that the December 10, 1989, date selected by the RO, is the earliest possible effective date here. If entitlement arose prior to December 10, 1989, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Moreover, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, supra; Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). There is simply no legal entitlement to an earlier effective date for the award of service connection for tinnitus. While the Veteran's tinnitus may have been present for many years prior to December 10, 1989, the regulations provide that the appropriate effective date is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Importantly, the pertinent regulations specifically states that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (emphasis added). In the instant case, given the governing legal authority, based on these regulations, the effective date has been appropriately assigned as the date of claim. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to December 10, 1989, for the grant of service connection for tinnitus. As there is no evidence of VA receipt of a claim, formal or informal, for service connection for tinnitus prior to December 10, 1989, the award of service connection for such disability may be no earlier than that date claim. Therefore, the Veteran's claim for an earlier effective date for the award of service connection for tinnitus must be denied. B. Effective Date prior to July 10, 2009, for the grant of a 40 percent rating for Service-Connected TBI The Veteran argues that he is entitled to a 40 percent rating prior to July 10, 2009, for his service-connected TBI. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. This claim is subject to the more specific criteria under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim." 38 C.F.R. § 3.400(o)(2). The Court has indicated that it is axiomatic that the facts that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service- connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Any communication or action, indicating an intent to apply for a VA benefit, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Also, with regard to the terms "application" or "claim," the Board notes that, once a formal claim for compensation has been allowed, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, provided such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1) (in effect when his July 2009 claim was received); see also 38 C.F.R. § 3.155(a). Evidence received from a private physician or layperson will also be accepted as a claim for an increase or to reopen when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In a February 2002 rating decision, the AOJ granted service connection for mixed organic personality syndrome with depression and assigned a 30 percent disability rating effective October 11, 1984, under Diagnostic Code 8045-9304 (exclusive of the period from May 8, 1993, to June 10, 1993 for which a temporary total rating was assigned under 38 C.F.R. § 4.29). The Board notes that Diagnostic Code 8045 addresses brain disease due to trauma, and Diagnostic Code 9304 addresses dementia due to head trauma. After he was notified of the decision and his appellate rights in June 2002, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case. Therefore, the February 2002 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, no additional evidence was received prior to the expiration of the appeal period. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board also notes that VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In the instant case, no additional service records were received. Therefore, the provisions of 38 C.F.R. § 3.156(c) are inapplicable to the present claim. Following the final February 2002 rating decision, the Veteran's claim for increased rating for service-connected TBI was received on July 10, 2009. In making such determination, the Board has considered whether any communication or treatment record dated prior to July 10, 2009, may be considered an informal claim. In this regard, the Board observes that no communication prior to the July 10, 2009, claim referenced his TBI. The Board has also reviewed the evidence of record within the one year period prior to the receipt of such claim in July 10, 2009, so as to determine the earliest date it is factually ascertainable that the Veteran's TBI met the criteria for a 40 percent rating. In this regard, the Veteran's TBI is evaluated under Diagnostic Code 8045. Under this criteria, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. The rater is instructed to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, the rater is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Further, the rater is to evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms should be evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Physical (including neurological) dysfunction is to be evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, such should be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Additionally, the rater is to consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Id. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Id. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Id. Pertinent evidence includes the Veteran's private treatment records. A November 2008 private treatment record noted that he was suffering from depression. In a January 2009 mini-mental state examination, the Veteran scored 29 out of 30. The only question that he answered incorrectly was repeating three words the examination provider recited earlier. There are no other objective findings prior to July 10, 2009, demonstrating that entitlement to a 40 percent rating for his service-connected TBI was factually ascertainable. The Board further observes that the evidence upon which the Veteran's 40 percent disability rating was based was obtained after his July 2009 claim was received, including the January 2010 examination report. The Board has considered the Veteran's lay statements that his disability has been consistent over time prior to the submission of his July 2009 claim. In this regard, he is competent to report on factual matters of which he had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board further finds that the Veteran's statements are credible. The Board notes, however, the evidence fails to demonstrate that it was factually ascertainable that the Veteran met the criteria for a 40 percent rating Diagnostic Code 8045 within one year from when he filed his claim. Therefore, in the absence of findings demonstrating symptomatology approximating the criteria for a 40 percent rating pursuant to Diagnostic Code 8045, the Board finds that the evidence fails to show that it is factually ascertainable that his TBI increased in severity so as to warrant a compensable rating earlier than the assigned July 10, 2009, date. Therefore, based on the foregoing, the Board finds that, after the final February 2002 rating decision, VA received the Veteran's claim for an increased rating for his TBI on July 10, 2009. Moreover, the Board concludes that it is not factually ascertainable that the Veteran's disability more nearly approximated the criteria required for a 40 percent rating under the applicable Codes prior to the July 10, 2009, date. As such, the Board concludes that an effective date prior to July 10, 2009, for the assignment of the 40 percent rating for TBI is not warranted. III. New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from the notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2016). However, if new and material evidence is presented or secured, VA shall reopen and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). "New and material evidence" is defined as evidence not previously submitted to the agency decision makers which is neither cumulative or redundant, which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the Veteran's original claim for service connection for lumbar spine disorder and a cervical spine disorder denied by a July 1992 rating decision that found that there was no evidence of complaints related to his lumbar and cervical spine in the accident reports following a September 1990 accident. The Veteran alleged that his service-connected TBI led to a seizure which caused him to lose control of his car. After he was notified of the decision and his appellate rights, he expressed timely disagreement with that decision in March 1993; however, he did not file a timely substantive appeal following the issuance of the May 1994 statement of the case. Therefore, the July 1992 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. In April 1998, the Veteran filed a petition to reopen his claims. A February 2002 rating decision declined to reopen the Veteran's claim, finding that new and material evidence had not been received. After he was notified of the decision and his appellate rights, he expressed timely disagreement with that decision in April 2003; however, he did not file a timely substantive appeal following the issuance of the July 2005 statement of the case. Therefore, the February 2002 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, with regard to the Veteran's claims for a lumbar spine disorder and a cervical spine disorder, such regulation is inapplicable as no new and material evidence was received prior to the expiration of the appeal period. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Board also notes that VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In the instant case, no additional service records were received. Therefore, the provisions of 38 C.F.R. § 3.156(c) are inapplicable to the present claim. In his July 2009 claim, the Veteran reiterated his argument that his spine disorder were the result of an accident sustained in September 1990 secondary to his service-connected TBI. In a January 2010 statement, the Veteran argued that his in-service motor vehicle accident in 1969 was also the cause of his cervical spine problems. Evidence added to the record since the February 2002 rating decision includes the Veteran's lay statements, VA treatment records, private treatment records, Social Security Administration (SSA) records, and a June 2015 VA examination report. A June 1991 SSA evaluation notes a history of "passing out" with altered stated of consciousness, rule out complex-partial seizure. Additionally, there is a September 1990 VA treatment record that noted the Veteran's complaint of back pain following a motor vehicle accident. The Board finds that such evidence is new because it was not before the RO at the time of the February 2002 rating decision. Furthermore, this evidence is material because, when considered with the previous evidence of record, it relates to an unestablished facts necessary to substantiate the claims of entitlement to service connection for a lumbar spine disorder and a cervical spine disorder. The evidence indicates that he experienced episodes of passing out which may have led to the September 1990 accident, and that he complained of back pain following the September 1990 accident. While this evidence insufficient by itself to support the award of service connection, the Board finds that the evidence submitted is both new and material, and that the claims are reopened. IV. TDIU The Veteran generally contends that his service-connected disabilities prevent him from maintaining gainful employment. In November 2016, he submitted a formal application for a TDIU, alleging that his service-connected TBI, in part, rendered him unemployable. During the August 2016 hearing, the Board determined that the issue of whether the Veteran's service-connected disabilities renders him unemployable had been raised in connection with his claims for increased ratings. However, review of the record demonstrates that he filed an informal claim for a TDIU in June 1987. Specifically, in a June 24, 1987 statement, the Veteran requested consideration for additional compensation benefits based on his employability situation which prevented him from substantially gainful employment. The AOJ never acknowledged his claim, and entitlement to a TDIU was not adjudicated until a June 2015 rating decision denied the claim. As such the Board finds his claim for a TDIU stems from the June 1987 informal claim. In order to establish entitlement to TDIU due to service-connected disability (ies), there must be impairment so severe that an average person is unable to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria provide for a total rating when there is a single disability or a combination of disabilities that result in a 100 percent schedular evaluation. Subjective criteria provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for the following disabilities: left facial fracture with traumatic brain injury, rated as noncompensable prior to July 10, 2009, and as 40 percent disabling thereafter; mixed organic personality syndrome with depression, rated as 30 percent disabling (exclusive of the period from May 8, 1993, to June 10, 1993, for which a temporary total rating was assigned under 38 C.F.R. § 4.29); bilateral hearing loss, rated as 20 percent disabling, effective October 11, 1984; fracture, left wrist, rated as noncompensable; fracture right ankle, rated as noncompensable; and tonsillectomy, rated as noncompensable. His combined disability rating was 40 percent prior to December 10, 1989; 50 percent prior to July 10, 2009 (exclusive of the period from No May 8, 1993, to June 10, 1993, for which a temporary total rating was assigned under 38 C.F.R. § 4.29); and 70 percent from July 10, 2009. Therefore, from July 10, 2009, he meets the schedular threshold criteria for a TDIU as defined in 38 C.F.R. § 4.16(a). Therefore, the remaining inquiry is whether he is unable to secure or follow substantially gainful employment due solely to his service-connected disabilities. The period prior to July 10, 2009, is addressed in the remand below. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The United States Court of Appeals for Veterans Claims (Court) further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). Initially, the Board acknowledges that the Veteran was awarded SSA disability benefits since September 1990 due to his back and cerebral trauma. However, the mere fact that the SSA has deemed him unemployable does not dictate the outcome in this matter; although they are relevant and to be considered, Social Security Disability determinations are not binding on VA. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). A June 1991 SSA neurological evaluation noted the diagnosis of a possible organic brain syndrome, a history of passing out with altered state of consciousness, and history of chronic intractable low back pain syndrome with possible herniated disc at L4, L%, and S1. In a January 2010 statement, the Veteran stated that he worked part-time with a certified professional accountant. He stated that he was only able to work 20 hours because his work performance had greatly slowed and had become erratic. He stated that his boss allowed him to work on a part-time basis because his children were autistic and he understood the limitations caused by a cognitive disability. He stated that, by 1990, his limitations were placing too great a load on the full time employees. Because of this, and the loss his driver's license, he had to stop working. In January 2010, the Veteran submitted a TBI Disability Benefits Questionnaire completed by his private physician. His symptoms included dizziness a couple of times during the year due to stress; left upper extremity insufficient paralysis; sleep disturbances four times a week; a medium degree of fatigue; a medium degree of nausea; difficulty going up and down the stairs; memory problems, such as forgetting schedules; aprosexia and executive dysfunction, such as foggy brain, speed of processing information, setting goals, planning, organizing, prioritizing, self-control, problem solving, decision making, self-motivation, and flexibility. The examiner also noted pain and depression. The examiner opined that he was unemployable due to depression, and that he was unemployed since 1990. The examiner noted that the Veteran's depression was affecting his daily life, including his ability to organize his personal surroundings and belongings. A June 2015 VA examiner noted that the Veteran's psychiatric symptoms included depression, irritability, and anger. Also, he reported problems with short term memory, remembering directions, multitasking, executive functioning, and lapses in awareness. The examiner noted that the Veteran had some deficits in memory and high level intellectual abilities, as well as mood and personality changes. During a June 2015 VA TBI examination, the examiner determined that the Veteran's TBI symptoms did not affect his ability work. In his August 2016 formal claim for a TDIU. He indicated that he last worked in September 1990 as a part time book keeper. He also indicated that he had a bachelor's degree in business administration with a minor in accounting that he completed in May 1976. Based on the foregoing, the Board finds the Veteran's service-connected TBI and mixed organic personality syndrome with depression rendered him unemployable since July 10, 2009, the day he met the schedular criteria. For example, the January 2010 examiner noted that he was unemployable due to depression, and that his depression affected his ability to organize his personal surrounding and belongings. Moreover, the June 2015 VA examiner noted that he had some deficits in memory and high level intellectual abilities, as well as mood and personality changes. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Moreover, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Therefore, based on the foregoing, and after resolving all reasonable doubt in his favor, the Board finds that the Veteran's service-connected TBI and mixed organic personality syndrome with depression rendered him unable to secure and follow a substantially gainful occupation consistent with his education background and employment history as of July 10, 2009, the day he met the schedular criteria. Therefore, entitlement to a TDIU is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than December 10, 1989, for the award of service connection for tinnitus is denied. Entitlement to an effective date earlier than July 10, 2009, for the assignment of the 40 percent rating for TBI is denied. New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for a cervical spine disorder is reopened. Entitlement to a TDIU is granted as of July 10, 2009, subject to the laws and regulations governing the payment of monetary benefits. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Increased Ratings With regard to the Veteran's claims for increased ratings, the Board notes that he was not afforded a VA examination to address the nature and severity of his service-connected tinnitus, and the most recent VA examinations to address the current nature and severity of his TBI and mixed organic personality syndrome with depression were performed in June 2015. Since that time, he has claimed that his condition is worse than that reflected in the June 2015 VA examination. Specifically, during the August 2016 hearing, his attorney argued that the June 2015 VA examination reports are inadequate to adjudicate his claims for increased ratings. In reviewing the June 2015 VA TBI examination, the Board notes that the examiner indicated that there are no subjective symptoms. With regard to the Facets of Cognitive Impairment, the examiner noted that the June 2015 VA mental health examiner would address those problems. The June 2015 VA mental health examination indicated that the Veteran had never been diagnosed with a mental health disorder. The examiner indicated that there was no occupational/social impairment with a mental health condition caused by his TBI. The examiner noted that he "completed neuropsychological testing at Post and Associates" June 19, 2015, four days after the examination report was signed. In an addendum opinion, the VA mental health examiner noted that the Veteran was diagnosed with a mental health disorder, but indicated that he previous diagnosis had been changed to "depressive disorder due to another medical condition-TBI," and that such did not cause an impairment severe enough to interfere with occupational and social functioning or require continuous medication. Given the foregoing, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for his tinnitus, TBI, and mixed organic personality syndrome with depression. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Furthermore, the Board notes that the June 2015 neuropsychological testing at Post and Associates, including the eight examinations/tests and the clinical interview cited by the June 2015 VA examiner are not associated with the record. Because the June 2015 neuropsychological testing, if procured, could bear on the outcome of his claims for increased ratings, efforts must be made to obtain them, as well as any outstanding VA treatment records dated after May 9, 2016. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Entitlement to a TDIU on an Extraschedular Basis With regard to the claim for a TDIU prior to July 10, 2009, as noted in the Introduction, the Board has assumed jurisdiction of the Veteran's claim for a TDIU pursuant to the Court's holding in Rice, supra. Moreover, as noted in the decision above, the Veteran filed a claim for a TDIU in June 1987 that was never adjudicated by the AOJ. In the decision above, the Board granted entitlement to a TDIU, effective July 10, 2009, the date the Veteran met the schedular criteria. A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). 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 Service, for extraschedular 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). However, the Board does have the authority to decide whether a claim should be referred to the Director, Compensation Service. See Barringer v. Peake, 22 Vet. App. 242 (2008). With respect to the assignment of a TDIU 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, Compensation Service, for a determination as to whether a TDIU should be awarded on an extraschedular rating basis prior to July 10, 2009. The Board finds that the medical and lay evidence of record, including the Veteran's SSA records, provides plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected TBI and mixed organic personality syndrome with depression. Accordingly, the Board finds that the claim should be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). Service Connection for a Lumbar Spine Disorder and a Cervical Spine Disorder The Veteran argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted due to his military service. See May 2010 Notice of Disagreement. Alternatively, he argues that service connection for a lumbar spine disorder and a cervical spine disorder is warranted as secondary to his service-connected TBI. Specifically, he alleges that his lumbar and cervical spine disorder are secondary to a September 1990 motor vehicle accident that was caused by what he calls a seizure, absence, or attention deficit, associated with his service-connected TBI. See, e.g., January 2010 Statement. In connection with his petition to reopen, the Veteran underwent a VA examination in June 2015. He was diagnosed with degenerative arthritis of the lumbar spine and cervical spine. The examiner opined that his spinal disorders were less likely than not related to his military service, to include motor vehicle accidents that occurred in 1969 and 1971. The examiner reasoned that there was no evidence of a low back or neck condition in his service treatment record, including his discharge examination. The examiner noted that the Veteran reported that his problems with his back and neck started after the September 1990 motor vehicle accident. The Board finds that the June 2015 examination is inadequate for two reasons. First, the examiner merely relied upon the lack of any complaints of back or neck pain in the service treatment records to support the opinion. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied on the lack of evidence in service treatment records, and does not account for competent lay testimony, to provide a negative opinion). Furthermore, the examiner failed to address the Veteran's primary contention that his lumbar and cervical spine disorders are secondary to his service-connected TBI, to include the symptoms of a seizure, absence, or attention deficit that led to the September 1990 motor vehicle accident. Once VA provides a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of these deficiencies, and to ensure that the Veteran's lay statements concerning his military service and the circumstances of the September 1990 motor vehicle accident are adequately considered, the Board finds that a new VA examination is necessary. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records relevant to his claims on appeal, including the June 2015 neuropsychological testing from Post and Associates that were addressed by the June 2015 VA examiner, as well as any records dated after May 9, 2016. 2. Contact the Veteran and request authorization to obtain any outstanding private medical records pertinent to his claims on appeal. Make at least two (2) attempts to obtain records from any identified source. 3. 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 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, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded a VA audiological examination in order to determine the current nature and severity of his service-connected tinnitus. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examination report should include discussion of the Veteran's documented medical history and lay statements. Any additional evaluations, studies, and tests deemed necessary should be conducted. The examiner is specifically requested to describe the functional effects caused by the Veteran's tinnitus. The examiner should also describe the impact that the Veteran's tinnitus has on his daily life, as well as whether his tinnitus causes marked interference with employment and/or frequent periods of hospitalization. The examiner should list all symptoms associated with tinnitus and distinguish those that may be associated with TBI and reasons for each distinction should be provided. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 5. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA TBI examination with an appropriate examiner (such as a specialist in neurology, neurosurgery, and/or psychiatry, who has training and experience with TBI) to determine the current nature and severity of his service-connected TBI. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examination report should include discussion of the Veteran's documented medical history and lay statements. Any indicated evaluations, studies, and tests, such as neurological testing, must be conducted. This examiner must also list all symptoms associated with tinnitus and distinguish those that may be associated with TBI and reasons for each distinction should be provided. To ensure that the all medical findings are expressed in terms conforming to the amended schedular criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect as of October 23, 2008, the Board requests that the examination be completed in accordance with the Review Evaluation of Residuals of TBI Disability Benefits Questionnaire (DBQ). Based on the examination results, the examiner should provide an assessment of the current nature and severity of the service-connected TBI consistent with the revised schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The examiner is asked to specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. In making his or her assessment, the examiner should identify all comorbid physical, neurological, or mental disorder(s), and state whether each is shown to be caused by the Veteran's TBI. If not, then, with respect to each comorbid disorder identified, the examiner should attempt to distinguish any symptoms and impairment attributable to such disability from identified residuals of a head injury. If the manifestations cannot clearly be distinguished, the examiner should clearly so state. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 6. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA mental health examination to determine the current nature and severity of his service-connected mixed organic personality disorder with depression. The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examination report should include discussion of the Veteran's documented medical history and lay statements. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of his service-connected mixed organic personality disorder with depression. The examiner should also specifically address the impact that such has on his social and occupational functioning. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 7. After the above development has been completed and all obtainable records have been associated with the claims file, afford the Veteran a VA examination to determine whether his lumbar spine disorder and cervical spine disorder are related to his military service or his service-connected TBI. The claims file must be provided to the examiner, to include a copy of this Remand. The examiner must review the claims file in conjunction with the examination and discuss in the report the relevant contents of the claims file as well as any relevant statements by the Veteran. The examiner shall note in the examination report that the record (i.e., the electronic claims file) and this Remand have been reviewed. After examining the Veteran and taking a complete and thorough medical history, the examiner should offer an opinion as to the following questions: a) Whether it is as least as likely as not (a 50 percent or higher probability) that the Veteran's a lumbar spine disorder and cervical spine disorder developed as a result of his military service, to include his in-service motor vehicle accidents in 1969 and 1971; b) Whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's lumbar spine disorder and cervical spine disorder were caused by his service-connected TBI, to include whether symptoms of seizures, absences, or attention deficit, are associated with his service-connected TBI, whether such led to the September 1990 motor vehicle accident; and whether his lumbar spine disorder and cervical spine disorder are related to that accident. c) Whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran's lumbar spine disorder and cervical spine disorder were aggravated by his service-connected TBI, to include whether symptoms of seizures, absences, or attention deficit, are associated with his service-connected TBI, whether such led to the September 1990 motor vehicle accident; and whether his lumbar spine disorder and cervical spine disorder were aggravated by that accident. If the examiner determines that there is aggravation, the examiner should state, to the best of their ability, the baseline symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. With regard to the questions above, the Board emphasizes that each must be answered. The examiner should take into consideration all of the evidence of record, to include in- and post-service medical records, as well as the Veteran's lay statements concerning in-service incurrence and post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale. 8. Refer this case to the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU prior to July 10, 2009, under the provisions of 38 C.F.R. § 4.16(b). 9. After completing the above, and 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 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 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 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs