Citation Nr: 0818827 Decision Date: 06/06/08 Archive Date: 06/18/08 DOCKET NO. 99-04 177A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date prior to March 14, 1994 for the grant of service connection for fibromyalgia syndrome. 2. Entitlement to an effective date prior to November 23, 1992, for the grant of an increased, 20 percent rating for residuals of a low back injury with disc involvement and fibromyositis. 3 Entitlement to an effective date prior to March 14, 1994, for the grant of an increased, 40 percent rating for residuals of a low back injury with disc involvement and fibromyositis. 4. Entitlement to an effective date prior to March 14, 1994 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and C.B., M.D. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from October 1986 to October 1988. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2001 RO rating decision. In that decision, the RO: (1) granted an earlier effective date of March 14, 1994 for a 40 percent rating for residuals of low back injury with disc involvement and fibromyositis; (2) granted an earlier effective date of March 14, 1994 for the fibromyalgia syndrome; and (3) granted a TDIU effective March 14, 1994. The veteran filed a notice of disagreement (NOD) with all three assigned effective dates in August 2001. For reasons discussed below, the RO did not issue a statement of the case (SOC), but, rather, issued a supplemental SOC (SSOC) as to these issues in September 2001. The extensive procedural history of these claims prior to the February 2001 decision will be summarized in the decision below. In August 2002, the veteran testified during a hearing before the undersigned Veterans Law Judge in Washington, D.C.; a transcript of that hearing is of record. In November 2002, the Board remanded the claim for an effective date prior to March 14, 1994 for the grant of a TDIU to the RO, instructing the RO to issue a SOC as to this claim. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2003. In May 2003, the Board denied an effective date prior to March 14, 1994 for the grant of a TDIU. The veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In August 2004, counsel for the appellant and the VA Secretary filed a Joint Motion for Remand; later that month, the Court issued an Order granting the Joint Motion, vacating the Board's May 2003 decision and remanding the matter on appeal to the Board for proceedings consistent with the Joint Motion. In the Joint Motion, the parties also indicated that, in August 2001 the veteran filed a timely NOD as to, but the RO failed to issue an SOC as to "the issues of an earlier effective date for increased disability rating [sic] for appellant's service-connected low back disability, and for an earlier effective date for the grant of service connection for fibromyalgia." See Joint Motion, at 8. In April 2005, the Board remanded these matters to the RO for further action (although the claims for earlier effective dates for the grants of higher ratings for the service- connected back disability were then improperly characterized). In July 2005, the RO issued a SOC on the matters of entitlement to an effective date prior to March 14, 1994 for the grant of service connection for fibromyalgia syndrome, and the matters of earlier effective date for increased ratings for residuals of a low back injury with disc involvement and fibromyositis (although the latter issue were characterized as the Board had characterized them). The veteran's attorney filed a substantive appeal on those issues in August 2005. In July 2005, the RO also issued a Supplemental SOC (SSOC) reflecting the continued denial of an effective date prior to March 14, 1994 for the grant of a TDIU. In February 2006, the veteran and Dr. Craig Bash, a private physician, testified during a hearing before the undersigned VLJ in Washington, D.C.; a transcript of the hearing is of record. In June 2006, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), in Washington, D.C., for additional development. After completing the requested action, the AMC continued the denials of the claims (as reflected in an April 2007 SSOC), and returned these matters to the Board for further appellate consideration. The Board notes that, in proceedings before the Court, and throughout much of this appeal, the appellant was represented by a private attorney. However, in September 2007, the veteran executed a VA Form 21-22, authorizing The American Legion to represent him in this appeal. The Board recognizes the change in representation. In January 2008, the Board testified during a hearing before the undersigned in Washington, DC (with representation by The American Legion); a transcript of the hearing is of record. The Board has recharacterized the claims for earlier effective dates for the grants of higher ratings for service-connected back disability (as reflected on the title page) consistent with what the veteran has requested and the RO has adjudicated. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. The veteran's November 1992 statement in support of claim (via a VA Form 21-4138) constitutes an informal claim for both an increased rating for his service-connected residuals of a low back injury with disc involvement (later characterized to include fibromyositis), and for service connection for a separate disability later characterized as fibromyalgia syndrome. 3. The veteran's October 6, 1993 substantive appeal filed in connection with his November 1992 informal claims for earlier effective dates for the grants of increased ratings and for service connection also indicates his intent to seek a TDIU based on his service-connected back disabilities, and, hence, constitutes an informal claim for that benefit. 4. The ratings assigned for the veteran's service-connected disabilities did not meet the not percentage requirements of 38 C.F.R. § 4.16(a) for award if a TDIU prior to March 14, 1994, and the criteria for invoking the procedures for assignment of a TDIU on an extra-schedular basis were not met prior to that date. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the veteran's favor, the veteran, the criteria for an November 23, 1992 effective date for the grant of service connection of a 40 percent rating for fibromyalgia syndrome are met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.150(a), 3.151, 3.157, 3.159, 3.400 (2007). 2. The criteria for an effective date prior to November 23, 1992, for the grant of an increased, 20 percent rating for residuals of a low back injury with disc involvement and fibromyositis are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.150(a), 3.151, 3.157, 3.159, 3.400 (2007). 3. The criteria for an effective date prior to March 14, 1994, for the grant of an increased, 40 percent rating for residuals of a low back injury with disc involvement and fibromyositis are not met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.150(a), 3.151, 3.157, 3.159, 3.400 (2007). 4. The criteria for an effective date prior to March 14, 1994 for the grant of a TDIU are not met. 38 U.S.C.A. § 5107, 5103, 5103A, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.151, 3.157, 3.159 3.340, 3.341, 3.400, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a February 2007 letter provided notice to the veteran regarding what information and evidence was needed to substantiate the claims for earlier effective dates, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claims. This letter also informed the veteran how disability ratings and effective dates are assigned, as well as the type of evidence that impacts those determinations. After issuance of the February 2007 letter, and opportunity for the veteran to respond, the April 2007 SSOC reflects readjudication of the claims. Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent evidence associated with the claims file consists of the veteran's service medical records, post-service private medical records, as well VA outpatient treatment (VAOPT) records and reports of VA examinations. Also of record and considered in connection with the appeal are the transcripts of the veteran's Board hearings as well as various written statements submitted by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). Under the applicable criteria, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). If a claim is received within one year after separation from service, the effective date for the grant of service connection is the day following separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2) (2007). As regards claims for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.400(o)(2) (2007). 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. See 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.151(a) (2007). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 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 as filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155(a) (2007). Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will 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) (2007). As noted in the joint motion, every claim for an increase in service-connected disability includes a claim for a TDIU where there is evidence of unemployability or marginal employment in the claims file. See Joint Motion, at 9 (citing Norris v. West, 12 Vet. App. 413, 420 (1999). Moreover, a claim for an earlier effective date for a TDIU is governed by increased rating provisions of 38 C.F.R. § 3.400(o). See Hurd v. West, 13 Vet. App. 449 (2000) (in which the Court applied 38 U.S.C.A. § 5110(b)(2), which applies to increased rating claims, to a TDIU claim). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially-gainful occupation as a result of service- connected disability, provided that, if there is only 1 such disability, it shall be ratable at 60 percent or more, and that, if there are 2 or more disabilities, there shall be at least 1 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially-gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for 1 person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (2007). 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 (Robert) 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)]). Substantially gainful employment suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991); see also Moore, supra. The Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that a veteran can perform work that would produce sufficient income to be other than marginal. Beaty v. Brown, 6 Vet. App. 532 (1994). When a TDIU claim is presented, a VA examining physician should generally address the extent of functional and industrial impairment from the veteran's service- connected disabilities. Gary v. Brown, 7 Vet. App. 229 (1994); see Martin (Roy) v. Brown, 4 Vet. App. 136 (1993). The Board has a duty to supplement the record by obtaining an examination that includes an opinion on what effect a veteran's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1995). The ability to overcome the handicap of disability varies widely among individuals. However, a TDIU is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap that must be overcome and not from individual success in overcoming it. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially-gainful occupation, provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. §§ 3.340, 4.15 (2007). Age may not be considered as a factor in evaluating service- connected disability; and unemployability, in service- connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a TDIU. 38 C.F.R. § 4.19 (2007). If a TDIU is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.340(a) (2007). In this appeal, the veteran seeks earlier effective dates for the grant of service connection for fibromyalgia syndrome, for the grants of higher ratings for residuals of a low back injury with disc involvement and fibromyositis, and for the grant of a TDIU. For purposes of clarity, a brief recitation of portions of the factual and procedural history of these claims follows . The veteran filed a claim for service connection for residuals of a back injury on January 25, 1991. The RO granted service connection and assigned a 10 percent rating for residuals of a low back injury with probable L5-S1 disc degeneration, , effective January 25, 1991 (the date of claim). Although the veteran was apprised of his procedural and appellate rights, the veteran did not initiate an appeal as to any aspect of this determination. The next document in the claims file is a November 23, 1992 statement in support of claim (VA Form 21-4138), which the Board finds, for the reasons below, constitutes an informal claim for service connection for the separate back disability of fibromyalgia syndrome, in addition to a claim for an increased rating for the veteran's service-connected back injury residuals. In March 1993, the RO granted an increased, 20 percent rating for the veteran's service- connected back disability, which it recharacterized as residuals of a low back injury with disc involvement and fibromyositis. The veteran filed a NOD in April 1993, the RO issued a SOC in August 1993, and the veteran filed a substantive appeal which, for the reasons discussed below, the Board finds includes an informal claim for a TDIU. The claims continued in appellate status, with the RO, in October 1995, increasing the rating for residuals of low back injury with probable disc degeneration and fibromyositis to 40 percent, effective March 8, 1995. In December 1997, the RO granted service connection and assigned a 20 percent rating for fibromyalgia, effective March 14, 1994. In the February 2001 rating decision on appeal-which revised previous RO rating decisions based on "difference of opinion" pursuant to 38 C.F.R. § 3.105(b)-a Decision Review Officer (DRO) assigned a 20 percent rating for residuals of low back injury with disc involvement and fibromyositis, effective March 14, 1994; assigned a 40 percent rating for the low back disability, effective March 14, 1994; and granted a TDIU, effective March 14, 1994. The award of a TDIU was based, in part, on the fact that both service-connected back disabilities were considered to be of common etiology with a combined rating of 60 percent. See 38 C.F.R. § 4.16(a)(2) (2007). Thus, service connection is in effect for residuals of a low back injury with disc involvement and fibromyositis, evaluated as 10 percent disabling from January 25, 1991, as 20 percent disabling from November 23, 1992, and as 40 percent disabling from March 14, 1994; and for fibromyalgia syndrome, rated as 40 percent disabling from March 14, 1994. The combined disability rating has been 10 percent from January 25, 1991, 20 percent from November 23, 1992, and 60 percent from March 14, 1994. A TDIU has been in effect from March 14, 1994. Considering the evidence in light of the pertinent legal authority, the Board finds, initially, that the veteran is entitled to an earlier effective date for the grant of service connection for fibromyalgia syndrome, based on the statement in support of claim (VA Form 21-4138) received on November 23, 1992. In that statement, the veteran wrote, "Due to the increased pain and discomfort that I am in, I am requesting that my claim be re-opened for an upgrade in my service connected disability." Under the circumstances of this case, the Board finds that this sentence constitutes an informal claim for service connection for additional back disability. The veteran pursued his claim continuously, including submission of general medical information regarding fibromyalgia syndrome and an October 1992 VA hematology report indicating a diagnosis of possible fibromyalgia, until he was granted service connection for a separate back disability-which was characterized as fibromyalgia syndrome and for which a 20 percent rating was assigned-in December 1997. Resolving all reasonable doubt in the veteran's favor, the Board finds that the November 23, 1992 statement may be deemed an informal claim for service connection for fibromyalgia syndrome because it was a communication indicating an intent to apply for additional service connection benefits for his back condition, and the subsequent grant of service connection was based on the symptomatology that was present and identified by the veteran from the time of the informal claim. See 38 C.F.R. § 3.155(a) (2007). The veteran is therefore entitled to an effective date of November 23, 1992, for the grant of service connection (and assignment of an initial 40 percent rating) for fibromyalgia syndrome. See 38 C.F.R. § 3.400(b)(2)(i) (2007). The veteran is not, however, entitled to an effective date prior to November 23, 1992, for the award of the benefits noted above. The veteran has argued that he is entitled to an effective date for all benefits awarded of January 25, 1991, the date of his initial claim for service connection. However, as noted, when the RO granted service connection for residuals of a low back injury with probable L5-S1 disc degeneration, effective the date of claim, the veteran, although notified of his procedural and appellate rights, did not initiate an appeal as to any of these determinations. As such, that decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007). Therefore, the January 25, 1991 date of the initial claim for service connection cannot be the effective date for the benefits subsequently granted. As noted, the Board must also consider, pursuant to the Joint Motion, whether the veteran is entitled to an earlier effective dates for an increased ratings for his low back injury with disc involvement and fibromyositis-specifically, the increased rating from 10 to 20 percent granted from November 23, 1992, and increased rating from 20 to 40 percent rating granted from March 14, 1994. Joint Motion, at 9. Entitlement to such higher ratings prior to those dates could result in a combined rating for the two separate back disabilities high enough to warrant schedular consideration of a TDIU. Id. However, there was no pending claim for a rating in excess of 10 percent for this disability prior to November 23, 1992, or evidence that the service-connected residuals of a low back injury with disc involvement and fibromyositis had increased in severity so as to warrant a rating in excess of 10 percent for this disability within the one year period prior to the November 23, 1992 claim. Specifically, after the issuance of the March 1991 rating decision granting service connection for residuals of a low back disability, the next document in the claims file is the veteran's November 23, 1992 statement that the Board has found to be an informal claim for service connection for additional back disability, in addition to a claim for an increased rating for the veteran's service-connected residuals of a low back disability. Thus, there is no basis for assignment of an effective date prior to November 23, 1992, for the award of a rating in excess of 10 percent for residuals of a low back injury with disc involvement and fibromyositis. As indicated, in March 1993, the RO increased the rating for residuals of a low back injury with disc involvement and fibromyositis from 10 to 20 percent, effective the date of the November 23, 1992 claim. The veteran filed a NOD in April 1993, requesting an even higher rating (i.e., in excess of 20 percent), a hearing officer continued the 20 percent rating in a November 1993 rating decision, and the veteran continued to disagree, with the claim remaining in appellate status, until the RO, in a March 1994 rating decision, continued the 20 percent rating and denied service connection for fibromyalgia as a separate back disability. Thus, there is no basis for assignment of a effective date prior to March 14, 1994, for the award of rating greater than 20 percent for residuals of a low back injury with disc involvement and fibromyositis, because the claim for an increased rating for low back disability was in appellate status. Therefore, there could not have been any claim, informal or otherwise during this time period. Moreover, as noted above, there is no evidence of an increase within a year prior to the November 23, 1992 claim; thus, there is no basis for a rating in excess of 20 percent for residuals of a low back injury with disc involvement and fibromyositis. The Board notes the opinion of Dr. Bash, expressed in an April 2006 written statement and elsewhere, that the veteran's back disabilities should each have been rated at a higher level from an earlier date. However, the effective dates for the ratings for the veteran's back disabilities are determined under the applicable legal authority as described above; whether the disabilities were more severe than the ratings indicated is not relevant to this determination. Moreover, there has been no specific allegation of clear and unmistakable error (CUE) in any prior rating decision. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997) (a CUE claim requires some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error). Pursuant to the rating decisions noted above, at the time of the November 23, 1992 statement in support, service connection was in effect for fibromyalgia syndrome, rated 40 percent disabling, and residuals of a low back injury with disc involvement and fibromyositis, rated as 20 percent disabling. The combined rating for these two disabilities, 50 percent, is not sufficient to meet the minimal schedular standards for a TDIU, even if considered to be of common etiology. See 38 C.F.R. § 4.14(a) (2007). As noted, the veteran has asserted that he should be granted an earlier effective date for a TDIU back to January 25, 1991; however, there was no pending claim for a TDIU prior to October 6, 1993 pursuant to which that benefit could be granted. The record is devoid of any communication from or action on the part of the veteran that constitutes a claim for or indicates an intent to apply for a TDIU prior to October 6, 1993. The veteran's original claim for VA disability compensation received on January 25, 1991 was solely for service connection for residuals of a back injury, and nothing therein may be construed as a claim for a TDIU. On that claim form, the veteran left blank spaces provided for information requested of an applicant who claimed to be totally disabled, such as employment status, the date last worked, and time lost from work due to illness-evidence that he was not claiming that he was totally disabled. Neither VAOPT records dated from December 1990 to October 1992 nor a February 1991 VA examination report contain any references to any inability of the veteran to work. The latter examination report reflects that the veteran claimed no time lost from work in jobs he performed post service in 1988 and 1989. In November 1992, the RO received the veteran's claim for an increased rating for his service-connected low back disability. Although he then noted that his disability was causing him difficulty in obtaining employment and impaired his ability to ambulate, nothing in the claim may be construed as a claim for a TDIU, inasmuch as he did not state that he was totally disabled. On May 1992 and February 1993 VA application forms for medical benefits, the veteran reported $4,800 of income from employment in 1991 and $9,100 of income in 1992, respectively-evidence that he was gainfully employed in those years. The Board notes that the parties to the Joint Motion noted that another part of the February 1993 application indicated that the veteran was not employed; however, the reason for such unemployment was not indicated. See Joint Motion, at 2. A January 1993 VA examination report noted that the veteran indicated he had been unemployed since September 1992 when he was let go from his job because he was unable to perform the specific job requirements due to his medical condition. However, the VA examiner did not address the question of whether the veteran was unable to secure or follow all forms of substantially-gainful employment as a result of his service-connected low back disability. Similarly, a February 1993 VA outpatient assessment that the veteran's spinal disorder limited his occupational function and impaired his ability to secure and maintain employment contains no indication that he was then unable to secure or follow all forms of substantially-gainful employment as a result of his service-connected low back disability. Subsequent March and May 1993 outpatient records indicate that the veteran's condition had variously worsened and improved over the course of therapy. The veteran's March 1993 NOD with the earlier March 1993 rating action that increased the rating of his service- connected low back disability from 10 percent to 20 percent may not be construed as a TDIU claim, inasmuch as he did not state therein that he was totally disabled. An August 1993 VA behavioral medicine clinical report indicates that the veteran was currently unemployed, and last worked as a maintenance supervisor in late 1992 and early 1993. However, that report indicates that he had back, colonic, and headache disabilities, and nothing therein indicates that he was then unable to secure or follow all forms of substantially-gainful employment solely as a result of his service-connected low back disability. During a November 1993 RO hearing, the veteran testified that he last worked in August 1992, but that an employment counselor had determined that he could work in a less stressful job-evidence that he was not disabled from all forms of substantially-gainful employment. On October 6, 1993, the RO received the veteran's substantive appeal (VA Form 9) in his claim for an increased rating for his service-connected low back disability, wherein he also stated that he was unable to seek gainful employment due to that disorder. The Board construes this statement to be the first indication in the record of the veteran's intent to seek a TDIU based on his service-connected low back disability, sufficient to constitute an informal claim for that benefit. However, that informal claim alone is insufficient to award a TDIU from that date, inasmuch as the effective date of an evaluation and award of compensation based on a claim for increase must be the date of receipt of the claim or the date the entitlement arose, whichever is later (see 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1)). Although the veteran filed an informal claim for a TDIU in October 1993, he did not meet the disability percent requirements of 38 C.F.R. § 4.16(a) for a TDIU prior to March 14, 1994. Service connection was in effect for residuals of a low back injury, since recharacterized as residuals of a low back injury with disc involvement and fibromyositis, rated 20 percent disabling. In addition, pursuant to the Board's decision above, the effective date of the grant of service connection for the separate back disability of fibromyalgia syndrome, rated 40 percent, is November 23, 1992. Thus, the combined rating for these disabilities at the time of the October 1993 informal claim was 50 percent, which is insufficient to meet the minimum percentage requirements for a TDIU, even if the two disabilities are considered to result from a common etiology. See 38 C.F.R. § 4.16(a) (2007). The Board also notes that, in June 1994, the SSA found the veteran entitled to a period of disability and to disability insurance benefits from February 1992 based on consideration of both his service-connected and non-service-connected disabilities. The duty to assist a veteran includes obtaining SSA records and giving them appropriate weight and consideration in determining whether to award or deny a TDIU. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). While SSA records must be considered along with other evidence in determining whether a veteran is unfit for employment, they are not binding as to such determination. Washington v. Derwinski, 1 Vet. App. 459 (1991). The SSA criteria for establishing entitlement to disability insurance benefits and a period of disability differ from VA criteria for establishing entitlement to a TDIU. There is no statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims, and VA has not adopted certain SSA regulations that would generally be beneficial to a claimant. See Beaty, 6 Vet. App. at 538. For example, where an applicant for SSA disability benefits is unable to perform jobs previously held, the burden is on the SSA to establish that other jobs exist that the applicant could perform. 42 U.S.C. § 1382c(a)(3) (West 2002 & Supp. 2007); see also Williams v. Shalala, 997 F. 2d 1494 (D.C. Cir. 1993). That duty is specifically placed upon the SSA by statute. See 42 U.S.C. § 1382c(a)(3)(A)-(B) (West 2002 & Supp. 2007). However, there is no statute or regulation which requires VA to conduct a job market or employability survey to determine whether a claimant is unemployable as a result of one or more service-connected disabilities, or to use experts to resolve the issue of unemployability. See Gary. Although VA has a duty to assist a claimant in developing the facts pertinent to his claim, on the facts of this case-where the medical evidence addresses industrial impairment and the evidence does not suggest that the impairment with sole consideration of the service-connected disabilities is total-38 U.S.C.A. § 5107(a) does not require VA to demonstrate that there are specific employment opportunities available to the appellant in order to deny a TDIU. The Board also notes that the parties to the Joint Motion agreed that the Board's May 2003 decision contained inadequate reasons or bases because it failed to discuss or consider the applicability of extra-schedular consideration to the veteran's claim for a TDIU due to service-connected disabilities. See Joint Motion, at 10. A total rating, on an extra-schedular basis, may be granted in exceptional cases (and pursuant to specifically prescribed procedures), when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities (per 38 C.F.R. §§ 3.321(b) and 4.16(b)). The central inquiry is "whether the veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, 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 (2007); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Considering the pertinent evidence in light of the above- noted legal authority, the Board finds that there is no showing that, at the time the veteran filed his informal claim for a TDIU on October 6, 1993, or at any time prior to March 14, 1994, the veteran's service-connected disabilities reflect so exceptional or unusual a disability picture as to warrant the assignment of a TDIU an extra-schedular basis. See 38 C.F.R. §§ 3.321(b)(1); 4.16(b) (2007). As noted above, on the January 25, 1991 the veteran left blank spaces provided for information requested of an applicant who claimed to be totally disabled, such as employment status, the date last worked, and time lost from work due to illness. Moreover, VAOPT records from December 1990 to October 1992, as well as a February 1991 VA examination report, contain no references to any inability of the veteran to work. In addition, May 1992 and February 1993 VA application forms indicate that the veteran was gainfully employed in those years, with a single, ambiguous reference to the veteran's unemployment. Further, the January 1993 VA examiner did not address the question of whether the veteran was unable to secure or follow all forms of substantially- gainful employment as a result of his service-connected low back disability. Also, the February 1993 VA outpatient assessment contains no indication that the veteran was then unable to secure or follow all forms of substantially-gainful employment as a result of his service-connected low back disability. Moreover, nothing in the August 1993 VA behavioral medicine report indicates that the veteran was then unable to secure or follow all forms of substantially- gainful employment solely as a result of his service- connected low back disability. Finally in this regard, the veteran indicated during the November 1993 RO hearing that he was not disabled from all forms of substantially-gainful employment. Given the above, the Board finds that the criteria for invoking the procedures for assignment of a TDIU on an extra- schedular basis, set forth in 38 C.F.R. §§ 3.321(b)(1) and 4.16(b), were not met prior to March 14, 1994 effective of the grant of a TDIU. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board notes Dr. Bash's statement that the veteran "has not been able to maintain employment since 1989," and that the veteran's symptoms make him "unemployable." However, as noted, a TDIU may be granted where the veteran is unable to secure and follow a substantially gainful occupation. Dr. Bash did not indicate whether, and at what point in time, the veteran could perform work that would produce sufficient income to be other than marginal, and the evidence described above indicates otherwise. Therefore, the Board finds that Dr. Bash's conclusions do not warrant a finding that the veteran was entitled to a TDIU prior to March 14, 1994. For all the foregoing reasons, the Board finds that the veteran is entitled to an effective date of November 23, 1992 (but none earlier), for the grant of service connection for fibromyalgia syndrome, and that the claims for earlier effective dates for the grants of increased ratings for service-connected residuals of low back injury with disc involvement and fibromyositis, and for the grant of a TDIU, must be denied. In reaching these conclusions, the Board has applied the benefit-of-doubt doctrine in the award of an earlier effective date as noted above, but finds that the preponderance of the evidence is against each of the remaining matters. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An effective date of November 23, 1992, for the award of service connection for fibromyalgia syndrome is granted, subject to the legal authority governing the payment of compensation benefits. An effective date prior to November 23, 1992, for the grant of an increased, 20 percent rating for residuals of a low back injury with disc involvement and fibromyositis is denied. An effective date prior to March 14, 1994, for the grant of an increased, 40 percent rating for residuals of a low back injury with disc involvement and fibromyositis is denied. An effective date prior to March 14, 1994 for the grant of a TDIU is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs