Citation Nr: 1100882 Decision Date: 01/07/11 Archive Date: 01/14/11 DOCKET NO. 07-39 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include degenerative disc disease (DDD). 2. Entitlement to an effective date earlier than October 4, 2001, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The Veteran had active service from May 1973 to May 1976. This appeal is before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). The case originally was before the Board on appeal from February 2007 and June 2007 rating decisions of the San Diego, California Department of Veterans Affairs (VA) Regional Office (RO). In February 2007, the RO effectuated a January 2006 Board decision that granted an increased rating for DDD of the lumbosacral spine by assigning a 60 percent evaluation for the Veteran's residuals of a lumbar spine injury, to include DDD, effective October 4, 2001. The February 2007 rating decision also, in pertinent part, granted TDIU and basic eligibility to DEA under Chapter 35, Title 38, United States Code, both effective October 4, 2001, and granted service connection for the loss of use of a creative organ, effective February 20, 1992. In June 2007, the RO, in pertinent part, granted service connection for a cervical spine disability, paralysis (loss of use of bilateral lower extremities), bilateral upper weakness, and awarded SMC for the loss of use of both feet with additional disability of residuals of lumbar injury with DDD independently ratable at more than 50 percent, all effective January 5, 2004. In a decision issued in January 2010, the Board denied the Veteran's claims for an earlier effective date in all the aforementioned issues. He appealed that decision to the Court. In October 2010, the Court vacated the Board's January 2010 decision as to the matters of entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury to include DDD, and of entitlement to an effective date earlier than October 4, 2001, for the award of TDIU, and remanded such matters on appeal for readjudication consistent with instructions outlined in a September 2010 Joint Motion for Partial Remand (Joint Motion). FINDINGS OF FACT 1. On August 6, 1991, the RO received the Veteran's increased rating claim for service-connected residuals of a lumbar spine injury, to include DDD. 2. Prior to October 4, 2001, it was not factually ascertainable that the Veteran's residuals of a lumbar spine injury to include DDD warranted a rating in excess of 60 percent. 3. The Veteran did not meet the criteria for a TDIU prior to October 4, 2001, because the competent evidence does not show that his service-connected disabilities, alone, prevented him from performing substantially gainful work prior to that date. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include DDD, are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). 2. The criteria for an effective date prior to October 4, 2001, for the award of TDIU is not warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's earlier effective date claims for residuals of a lumbar spine injury, to include DDD, and for a TDIU are "downstream" elements of the RO's grant of service connection for this disability and the RO's grant of a TDIU in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In this case, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. The Veteran also was notified of the types of evidence he could submit in support of his claims. He further was informed of when and where to send the evidence. After consideration of the contents of this notice, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the February 2007 rating decision currently on appeal was fully favorable to the Veteran on the issues of an increased rating for residuals of a lumbar spine injury and for an award of TDIU, the Board finds that the statutory notice had served its purpose and additional notice was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A December 2007 statement of the case (SOC) provided notice on the "downstream" issue of an earlier effective date and readjudicated the matter after the appellant and his representative responded and further development was completed. Neither the Veteran nor his attorney has alleged any prejudice from any downstream notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). Thus, any failure to provide notice as to the disability rating under the VCAA cannot be considered prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). All evidence relevant to the Veteran's claims has been secured. It is noted that determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings. Generally, further development of the evidence is not necessary unless it is alleged that there is evidence constructively of record which has not yet been received. The Veteran has not identified any other pertinent evidence that remains outstanding. There also is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to the earlier effective date claims on appeal. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For claims of entitlement to service connection the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2009). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2009). The Board notes that it has reviewed all of the evidence in the Veteran's claims file with an emphasis on the evidence relevant to the currently appealed claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the currently appealed claims. Residuals of a lumbar spine injury to include degenerative disc disease A July 1981 rating decision granted service connection for residuals of a lumbar spine injury, rated 20 percent, effective July 31, 1980. A subsequent June 6, 1991 Board decision continued the 20 percent rating. The Veteran did not appeal this decision and it became final based on the evidence of record at the time. It is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A, 7104; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). CUE in the June 1991 Board decision is neither alleged nor raised by the record. The earliest documentation in the claims file received after the June 1991 Board decision that can be construed as a formal claim for an increased rating for residuals of a lumbar spine injury, to include DDD, is the Veteran's statement received on August 6, 1991, requesting re-evaluation of his "back condition" for an increased rating. Under the governing law and regulations outlined above, the Board generally reviews the evidence dating back to one year prior to the date of the claim to determine whether, within that one year period, an increase in a disability was factually ascertainable. As noted above, however, a June 6, 1991, Board decision denied a rating in excess of 20 percent for the Veteran's residuals of a lumbar spine injury disability to include DDD. As the Board's June 1991 decision is final based on the evidence then of record, the Board will consider the additional evidence received since August 6, 1991, to determine when the increase in disability was first factually ascertainable. Under the criteria in effect prior to September 26, 2003, lumbosacral strain was evaluated under DC 5295, limitation of motion of the lumbar spine was evaluated under DC 5292, and intervertebral disc syndrome was evaluated under DC 5293. A 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in standing position. A 40 percent (maximum) rating was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2003). Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warranted a 20 percent rating if moderate and a 40 percent (maximum) rating if severe. 38 C.F.R. § 4.71a, DC 5292 (2003). (The Board notes parenthetically that, because ankylosis or complete bony fixation of the spine is not shown by the evidence of record, DC's 5289 and 5286 do not apply.) Under the criteria in effect prior to September 23, 2002, intervertebral disc syndrome warranted a 20 percent rating for moderate disc disease with recurring attacks; a 40 percent rating for severe disc disease, with recurring attacks and intermittent relief; and a 60 percent rating for pronounced disease, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). The Veteran's treatment records reflect frequent complaints and treatment related to his lumbar spine. VA treatment records show that in January 1991, he complained that he was unable to move about due to the severe pain in his low back. It was noted that the last treatment record available for the Veteran was in 1987, although he claimed he had been seen at the VA clinic in 1989 and 1990. He was referred to the orthopedic clinic with the provisional diagnoses of DDD and arthritis in the right hip. In July 1991, the Veteran was evaluated by the orthopedic clinic. He complained of pain in his back and legs since 1974, when he was involved in a parachute accident. It was noted that two and a half years earlier, he had also sustained an "on the job" injury to his back. On physical examination, the Veteran's gait was hunched over, deep tendon reflexes were intact, and straight- leg raising was positive at 20 degrees bilaterally. He was given an assessment of low back pain without bowel/bladder complaints. In January 1992, the Veteran complained again of pain his low back with radiation of pain into his right leg. On physical examination, straight-leg raising was positive at 20 degrees, there were no motor deficiencies in the lower extremities, and there were no changes in his bowel habits. Degenerative joint disease in the L5-S1 and rule-out nerve root impingement along the S1 were assessed. In February 1992, it was noted that the Veteran had a history of chronic low back pain since a parachute injury in 1974, and was currently unemployed due to his back pain. He complained of impotence and of occasional urinary incontinence over many years. On physical examination, straight-leg raising was positive, deep tendon reflexes were symmetric, there was tenderness on palpation, and paraspinal muscle spasms were also present. It was the physician's impression that the Veteran had chronic low back pain with evidence of chronic cauda equina symptoms. In May 1993, the Veteran underwent an orthopedic consultation for the purpose of determining his qualified injured worker status (in association with a workers' compensation claim for a postservice February 1989 occupational injury). On examination of the lumbar spine, there was normal spinal alignment and palpable tenderness around the thoracolumbar spine region, sacroiliac joint bilaterally, and buttocks bilaterally. There was no allodynia or evidence of paravertebral muscle spasm. Lumbosacral spine ranges of motion were: 50 degrees forward flexion, 10 degrees backward extension, and 15-20 degrees bilateral rotation. The Veteran was able to walk on the heels and toes, perform a full squat, and sit up without difficulty. His straight leg testing was negative at 80 degrees bilaterally. Knee and ankle jerks were present and equal, bilaterally. On November 1996 VA examination, the Veteran complained of low back pain with multiple joint aches/pains, occasional right lower extremity numbness, and not being able to bend over well or lift. He had no bowel/bladder changes. On physical examination, he had no postural abnormalities or fixed deformities, and good musculature of the back. Lumbosacral spine ranges of motion were: 65 degrees forward flexion, 10 degrees backward extension, 25 degrees bilateral lateral flexion, and 20 degrees bilateral rotation. Neurologically, his motor strength was 5/5 for ankle plantar and dorsiflexion, knee flexion and extension, and hip flexion; a pinprick test was intact. L5-S1 DDD with spondylosis was diagnosed, and the examiner opined that while this disability had "significantly decreased [the Veteran's] ability to do manual labor . . . it should not necessarily prevent him from working at sedentary occupations." On March 1997 VA examination, the Veteran complained of constant low back pain with right lower extremity pain and occasional weakness/numbness. He also complained of being unable to bend over or lift well. He had no bowel or bladder incontinence. On physical examination, there were no postural abnormalities or fixed deformities. He was mild to moderately tender to palpation over the lumbosacral spine. Lumbosacral ranges of motion were: 65 degrees forward flexion, 20 degrees backward extension, and 30 degrees bilateral lateral flexion and bilateral rotation; there was some grimacing with difficulty straightening on motion. Neurologically, his motor strength was 5/5 for extensor hallucis longus, tibialis anterior, gastrosoleus, and knee flexion and extension. Light touch was intact from L4-S1 and reflexes were symmetrical for Achilles and patellar. Severe L5-S1 DDD was diagnosed. On March 1999 VA examination, the Veteran complained of constant and excruciating pain, weakness, fatigue, lack of endurance and stiffness in his low back. He also complained of radiating pain down to the right lower extremity, which caused some intermittent numbness in his right thigh area. He reported that he could brush his own teeth and bathe, but had difficulty dressing himself and could not shower. He was unable to perform household chores or participate in many daily activities, as he refrained from all activities that required prolonged sitting, standing, walking, bending, turning, or lifting. He also reported that he had not been employed since February 1, 1989. On physical examination, the examiner noted that the Veteran was uncooperative and would not comply with the range of motion testing of the lumbar spine. As such, the VA examiner was unable to comment on whether he had painful motion. The Veteran was able to sit up from a supine position though, suggesting a 90 degree lumbar flexion. It also appeared that the Veteran had muscular spasm in the lumbosacral spine in both paraspinal areas and tenderness in the midline and paraspinal areas of the lower lumbosacral region. The examiner could not comment on any weakness. The musculature of the back was otherwise normal, but posture was abnormal in that there was a mild loss of lumbar lordosis. Neurologically, the Veteran's motor function was within normal limits. Residuals of a lumbar injury/lumbosacral strain and DDD of L5-S1 were diagnosed. The examiner opined that the Veteran's condition mildly affected him in any activities that would require prolonged standing, walking, sitting, repetitive bending, or lifting. The examiner also noted that there was "equivocal objective neurological impairment due to disc disease, in that there [was] evidence of straight leg raising impairment at 30 degrees on bilateral lower extremities, but [that the] remainder of the neurologic examination [was] intact, without other signs of radiculopathy." On October 4, 2001 VA examination, the Veteran complained of sharp, throbbing, and burning pain in the upper and lower back. He did not use a cane, brace, walker, or any type of abdominal or cervical support. He reported difficulty walking, standing, sitting, bending, and lifting. He also stated that he could barely dress himself, and could not walk, drive, shop, push a lawn mower, or garden. He could brush his teeth, shower, and take out the trash. But, he stated that since the pain was constant, he was afraid "he might hurt himself or others if he [continued] to have pain and [suffering]." On physical examination on October 4, 2001, the Veteran walked with his head flexed and stood with a forward list. When asked to stand straight and walk in an upright manner, he was able to do so but complained of pain. There was no right or left paralumbar muscle spasm or evidence of scoliosis, but there was dorsal kyphosis and lumbar lordosis. Lumbosacral spine ranges of motion were: 60 degrees forward flexion, -20 degrees backward extension, 20 degrees bilateral lateral bending, and 20 degrees bilateral rotation. The examiner noted that he was "not convinced" that the Veteran was demonstrating full effort. Straight leg testing was negative on the left side at 90 degrees and positive on the right at 60 degrees. Patrick's test was positive, bilaterally, for low back pain. On neurological examination, there was no evidence of sensory or motor loss in the lower extremities. The examiner also noted that the Veteran was able to sit in an upright position, so he assumed that his extension was at least 0 degrees, even if he would not go through the full motion. All deep tendon reflexes were normal and equal; motor strength was within normal limits; and sensory examination was intact. Severe degenerative arthritis of the lumbar spine with right radiculopathy and DDD with L5 nerve root involvement were diagnosed. Regarding the Veteran's functional capacity, the examiner opined, that the Veteran could lift and carry 20-25 pounds occasionally and 15-20 pounds frequently, and he could sit, stand and walk for 4-6 hours in an 8-hour work day. He could not climb ladders, stoop, kneel, or crouch, and the examiner advised against walking on uneven terrain. He noted that these conclusions were "based purely on his orthopedic evaluation," and that he did not take into consideration motivation or any other issues that the Veteran might have. The Veteran and his representative have argued that he should be assigned a 60 percent rating for service-connected residuals of a lumbar spine injury, to include DDD, since the date of his increased rating claim in August 1991. In support of this argument, they submitted a November 2005 private independent medical evaluation from Dr. C.N.B. who reviewed the Veteran's claims file and opined, "[I]t is my opinion that [the Veteran] has been assigned an incorrect medical diagnostic code for his spine injuries since 1981 as he should have been assigned the medical diagnostic sub code of 60% under code 5293 category in 1981." The Board finds that the preponderance of the evidence is against the Veteran's claim for an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include DDD. The competent evidence of record does not show that prior to October 4, 2001, the Veteran's residuals of a lumbar spine injury with DDD was manifested by pronounced DDD with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. The April 1993 private orthopedic consultation revealed normal spine alignment, tenderness around the thoracolumbar spine region, no muscle spasm, moderate limitation of motion, and present knee and ankle jerks. The November 1996 VA examination revealed no postural abnormalities or fixed deformities, moderate limitation of motion, normal motor strength, and a pinprick test that showed sensation was intact. The March 1997 VA examination revealed mild to moderate tenderness over the lumbosacral spine, no postural abnormalities or fixed deformities and moderate limitation of motion. Severe DDD was diagnosed; however, the Veteran's neurological examination was normal. On March 1999 VA examination, the examiner was unable to evaluate properly the Veteran's range of motion but noted that he had some tenderness and muscular spasms in the lumbosacral spine and his posture was abnormal in that there was a mild loss of lumbar lordosis. The Veteran's motor function was normal. Noting that some neurological impairment was shown, in that impairment was shown during the Veteran's leg raising test, the examiner observed that the remainder of the neurologic examination was intact and there were no other signs of radiculopathy shown. The Board notes that the Veteran relies heavily on the September 2005 opinion from Dr. C.N.B. in support of his earlier effective date claim for service-connected residuals of a lumbar spine injury, to include DDD. As noted, in that opinion, this private physician concluded that the Veteran had been assigned the wrong diagnostic code in 1981 and was entitled to a 60 percent rating as of that date. Even assuming for the sake of argument that this private physician's opinion is entitled to probative value, the Board observes initially that the Veteran would not be entitled to a 60 percent rating in 1981 because there is a final Board decision dated in June 1991 which denied his claim for an increased rating greater than 20 percent for service-connected residuals of a lumbar spine injury, to include DDD. The private physician does not allege in his September 2005 opinion that there was CUE in the June 1991 Board decision nor is CUE raised by the record. The Board also observes that the issue in this case is not whether the Veteran was assigned the appropriate diagnostic code for his service-connected residuals of a lumbar spine injury, to include DDD. Instead, the pertinent issue on appeal is whether it is factually ascertainable that there was an increase in disability within 1 year of the date of receipt of the Veteran's increased rating claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. As noted above, the medical evidence does not indicate that it was factually ascertainable that the Veteran's service-connected residuals of a lumbar spine injury, to include DDD, had worsened within 1 year prior to the date of receipt of his increased rating claim. The medical evidence also shows that the Veteran was not entitled to a 60 percent rating for service- connected residuals of a lumbar spine injury, to include DDD, until October 4, 2001, the date of VA examination showing increased symptoms. Thus, the private physician's September 2005 opinion that the Veteran's disability had been rated under an incorrect diagnostic code is not probative on the earlier effective date claim at issue in this appeal. The September 2010 Joint Motion observed that the Board failed to "adequately address the February 1992 VA medical note of spasm and cauda equine [sic] and [did] not address the relevance of [the Veteran's] service-connected incontinence and impotence conditions as evidence of the severity of his lumbar spine condition prior to October 4, 2001." Contrary to the assertions made by both parties in the Joint Motion, the Board notes that paraspinal muscle spasms are contemplated by the 20 percent rating assigned for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD, prior to October 4, 2001. This period of time includes "the February 1992 VA medical note of spasm" which both parties highlighted in the Joint Motion. See also 38 C.F.R. § 4.71a, DC 5295. As for the cauda equine noted in February 1992, the Board observes that the Veteran actually was not diagnosed with this neurologic condition at that time. Rather, his VA physicians observed that he demonstrated symptoms of the syndrome, namely low back pain and urinary incontinence, in February 1992. The Board further observes that, in the February 2007 rating decision, the Veteran was awarded service connection for bladder incontinence, effective July 9, 1991, and for impotence, effective February 20, 1992 (the date of the VA treatment record which both parties highlighted in the Joint Motion). The Board finds that awarding a higher disability rating for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD, based upon these same neurological findings of bladder incontinence and impotence would violate the prohibition against pyramiding. See 38 C.F.R. § 4.14. Significantly, the Board notes the Veteran does not have a chronic incontinence problem. Although he reported in February 1992 that he had had urinary incontinence over many years, July 1991 and January 1992 VA treatment records specifically note that he did not have any urinary incontinence. Likewise, on November 1996 and March 1997 VA examinations, he also did not have any urinary incontinence. Based on the foregoing, the medical evidence of record for the period prior to October 4, 2001, does not show manifestations of service-connected lumbar spine injury, to include DDD, that meet the criteria for a higher 60 percent rating under DC's 5292 or 5293. 38 C.F.R. § 4.71a (2002). On October 4, 2001 VA examination, the Veteran walked with his head flexed and stood with a forward list. He was unable to stand straight and walk in an upright manner without pain. On range of motion testing, his backward extension was -20 degrees. Severe degenerative arthritis of the lumbar spine with right radiculopathy and DDD with L5 nerve root involvement were diagnosed. Such findings warrant, for the first time, a 60 percent rating under 38 C.F.R. § 4.71a, DC 5293 (2002). The Board acknowledges the Veteran's continuing complaints of low back pain with radiating pain down to his right lower extremity since the date of his claim in August 1991. These complaints merit less probative value than the objective medical evidence of record in this appeal which demonstrates that the Veteran's peripheral nerve functioning was, at most, mildly impaired by disc disease. TDIU In this case, the Veteran's formal claim to reopen a claim of entitlement to TDIU was received by the RO in October 1992. The RO granted a TDIU effective from October 4, 2001, because that was the earliest date at which the Veteran met the schedular criteria for assignment of a TDIU. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service- connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). 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). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In this case, the Veteran did not satisfy the schedular criteria for a TDIU prior to October 4, 2001, because, prior to that date, his only service-connected disability was rated 20 percent disabling. Accordingly, he did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) until October 4, 2001, the current effective date. 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 as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Services, 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). See 38 C.F.R. § 4.16(b). Hence, the Board has considered whether the Veteran is entitled to consideration for extraschedular rating under 38 C.F.R. § 4.16(b) prior to October 4, 2001. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court determined that the threshold factor for extraschedular consideration is a finding by the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. See also Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual pt. III, subpart iv, ch. 6, sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996). If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, however, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director, C&P Service, for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In various statements, including the Veteran's formal request to reopen a claim for entitlement to TDIU, he asserts he has not worked since February 1989 as a result of his service-connected back disability. VA treatment records also show that, in February 1992, the Veteran reported that he was unemployed because of his back pain. His physician did not provide any comments regarding this matter. The evidence of record shows that the Veteran was injured in a February 1989 postservice occupational accident in which he fell backwards onto his back and lost consciousness. He has not worked since that time. In October 1990, the Veteran was awarded Social Security Administration (SSA) disability compensation as a result of this injury. The primary diagnosis was chronic brain syndrome and the secondary diagnosis was sprains and strains. Service connection is not in effect for a chronic brain syndrome, so the award of SSA benefits does not, by itself, show unemployability due to service-connected disabilities. On November 1996 VA examination, the examiner opined that, while the Veteran's service-connected residuals of a lumbar spine injury with DDD significantly decreased his ability to do manual labor, it did not necessarily prevent him from working at sedentary occupations. On March 1999 VA examination, the Veteran reported that he had difficulty performing many household chores and participating in daily activities. The examiner opined that, based on an objective examination, the Veteran's disability only "mildly affected" him in activities that required prolonged standing, walking, sitting, repetitive bending, or lifting. The clinical findings in November 1996 and in March 1999 clearly were contemplated by the disability ratings then in effect for the Veteran's service-connected residuals of a lumbar spine injury, to include DDD. Accordingly, the Board concludes that these clinical findings do not suggest that referral for extraschedular consideration is necessary. See Thun, 22 Vet. App. at 111. On October 4, 2001, VA examination, the examiner opined that the Veteran's service-connected residuals of a lumbar spine injury with DDD did not prevent him from lifting and carrying 20-25 pounds occasionally and 15-20 pounds frequently, or from sitting, standing, and walking for 4-6 hours in an 8-hour work day. As discussed above, however, the Veteran met the schedular criteria for a 60 percent rating for service-connected residuals of a lumbar spine injury, to include DDD, as of the date of this examination. Therefore, an award of TDIU also was granted effective October 4, 2001. See 38 C.F.R. § 4.16(a). In support of his TDIU claim, the Veteran submitted a November 2005 private independent medical evaluation from Dr. C.N.B. in which this physician opined that the Veteran had been unemployable since 1987. As part of his rationale for this opinion, Dr. C.N.B. stated that, since 1987, "[the Veteran] had several unsuccessful visits to medical professional to treat his spine and he was unable to do manual work and he did not have educational abilities to do alternative work." The Board finds this opinion to be lacking in probative value as Dr. C.N.B. failed to consider the impact of the Veteran's post-service February 1989 injury on his employability. Dr. C.N.B. also did not discuss the findings of the November 1996 and March 1999 VA examiners who opined that the Veteran's service-connected residuals of a lumbar spine injury with DDD did not render him unable to perform all types of work. These gaps in the September 2005 opinion from Dr. C.N.B. suggest that, although he stated that he had reviewed the claims file, he did not, in fact, have access to or review the complete claims file prior to offering his opinion concerning the Veteran's employability. In any event, it appears that Dr. C.N.B. was not "informed of the relevant facts" concerning the impact of the Veteran's service- connected disabilities on his employability prior to offering his opinion in November 2005. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (finding that, while claims file review is not required for a medical opinion to have probative value, it must be clear from the record that the opinion provider "was informed of the relevant facts" in rendering a medical opinion); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). In summary, the Board finds that the preponderance of the evidence is against assigning an effective date earlier than October 4, 2001, for the award of TDIU. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than October 4, 2001, for a 60 percent rating for residuals of a lumbar spine injury, to include DDD, is denied. Entitlement to an effective date earlier than October 4, 2001, for the award of TDIU is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs