Citation Nr: 1300145 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 10-27 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial evaluation higher than 50 percent for service-connected depressive disorder. 2. Entitlement to a higher initial evaluation for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion, rated as 40 percent disabling from May 24, 2000, 10 percent disabling from September 1, 2003, and 20 percent disabling from March 13, 2008. 3. Entitlement to an initial evaluation higher than 10 percent for service-connected left lower extremity radiculopathy. 4. Entitlement to an initial evaluation higher than 10 percent for service-connected right lower extremity radiculopathy. 5. Entitlement to an effective date earlier than May 24, 2000 for the grant of service connection for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion. 6. Entitlement to an effective date earlier than March 13, 2008 for the grant of service connection of left lower extremity radiculopathy. 7. Entitlement to an effective date earlier than November 3, 2008, for the grant of service connection of right lower extremity radiculopathy. 8. Entitlement to an effective date earlier than November 21, 2008 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009, August 2009, and May 2010 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a May 2010 DRO decision, the evaluation assigned for the Veteran's depressive disorder was increased from 30 percent to 50 percent effective November 21, 2008, the date of receipt of claim. Although the Veteran initially indicated on the June 2010 VA Form 9 that he wanted a video hearing before the Board, he later withdrew the request through his attorney in October 2011. An informal hearing conference at the local RO was subsequently held in November 2011, pursuant to the Veteran's request. A report of the conference is of record. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. Throughout the claim/appeal period, a preponderance of the evidence weighs against finding that the Veteran's psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to psychiatric symptomatology, or worse, so as to warrant an increased rating under the General Rating Formula for Rating Mental Disorders. 2. A preponderance of the evidence weighs against finding that the Veteran's back disability more closely approximates pronounced IVDS from May 24, 2000 to May 12, 2003. 3. A preponderance of the evidence weighs against finding that the Veteran's back disability more closely approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour from September 1, 2003 to March 12, 2008. There is no evidence of incapacitating episodes. 4. A preponderance of the evidence weighs against finding that the Veteran's back disability more closely approximates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine from March 13, 2008 forward. There is no evidence of incapacitating episodes. 5. A preponderance of the evidence weighs against finding that manifestations of the Veteran's right lower extremity radiculopathy amount to any more than mild incomplete paralysis of the sciatic nerve. 6. A preponderance of the evidence weighs against finding that manifestations of the Veteran's left lower extremity radiculopathy amount to any more than mild incomplete paralysis of the sciatic nerve. 7. The Veteran did not appeal the September 1998 rating decision rating decision that denied service connection for a back disability; that decision is now final. 8. The Veteran subsequently filed an application to reopen the previously denied claim for service connection of a back disability on May 24, 2000. There is no prior communication received after the September 1998 rating decision which established an informal or formal claim of service connection for back disability. 9. Following the Veteran's 2003 surgery and convalescence period, the earliest evidence of left lower extremity radiculopathy was the March 13, 2008 VA medical examination. 10. Following the Veteran's 2003 surgery and convalescence period, the earliest evidence of right lower extremity radiculopathy was the November 3, 2008 VA treatment record. 11. The Veteran does not meet the requirements for the grant of a TDIU prior to November 21, 2008 because he was not employable during the period. His assertion of marginal employment is not deemed credible. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation higher than 50 percent for the Veteran's service-connected depressive disorder have not been met or approximated for the entire claim/appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.126, 4.130, DC 9434 (2012). 2. Entitlement to a higher initial evaluation for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion, rated as 40 percent disabling from May 24, 2000, 10 percent disabling from September 1, 2003, and 20 percent disabling from March 13, 2008. 3. The criteria for a disability evaluation higher than 10 percent for the Veteran's service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion, have not been met from September 1, 2003 to March 12, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, DC 5243 (2012). 4. The criteria for a disability evaluation higher than 20 percent for the Veteran's service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion, have not been met from March 13, 2003, forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.71a, DC 5243 (2012). 5. The criteria for a disability evaluation higher than 10 percent for the Veteran's service-connected left lower extremity radiculopathy have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, DC 8520 (2012). 6. The criteria for a disability evaluation higher than 10 percent for the Veteran's service-connected right lower extremity radiculopathy have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, DC 8520 (2012). 7. The requirements for an effective date earlier than May 24, 2000 for the grant of service connection for low back strain with lumbar degenerative disc disease, status post lumbar laminectomy have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o) (2012). 8. The requirements for an effective date earlier than March 13, 2008 for the grant of service connection of left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400(o) (2012). 9. The requirements for an effective date earlier than November 3, 2008 for the grant of service connection of right lower extremity radiculopathy have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400(o) (2012). 10. The requirements for an effective date earlier than November 21, 2008 for the grant of TDIU have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400(o) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Increased rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding the Veteran's increased evaluation claims, the Board has considered the determination in Fenderson v. West, 12 Vet. App. 119 (1999) regarding whether the Veteran is entitled to a staged rating. Depressive Disorder As stated above, service connection for depressive disorder NOS was established with a 30 percent disability rating effective November 21, 2008, in an August 2009 rating decision. The Veteran appealed the initial rating assigned and a 50 percent rating was later granted for the entire period (i.e., from November 21, 2008). The Veteran's psychiatric disorder is evaluated under the criteria found at 38 C.F.R § 4.130, DC 9434. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. Upon review, we find no other appropriate diagnostic code and/or rating schedule under which it would be appropriate to evaluate the Veteran's psychiatric disability. See Schafrath, supra. Under the General Rating Formula for Mental Disorders, a 50 percent rating is prescribed when there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2012). A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed. 1994)). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the rating schedule. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). As a preliminary matter, the Board notes that the Veteran presents with a psychiatric picture complicated by a long-standing history of cocaine abuse and polysubstance dependence with short periods of remission/sobriety; concurrent Axis I diagnoses of nonservice-connected Impulse Control Disorder not otherwise specified (NOS) vs. Intermittent Explosive Disorder, and PTSD (due to an industrial accident with mortality); chronic pain associated with physical disability; and a personality disorder. See, e.g., July 2010 VA mental health medication management note; February 2011 VA cardiology inpatient H&P note. The Court has held that when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In consideration of the foregoing, the Board has considered all of the Veteran's psychiatric symptoms and diagnoses as being attributable to the service-connected depressive disorder in reaching its decision regarding entitlement to a higher initial rating when not easily distinguishable in the record in order to avoid any prejudice to the Veteran. After review of the evidentiary record, we find that the preponderance of the evidence weighs against the assignment of a higher initial rating for the Veteran's service-connected psychiatric disorder for reasons explained below. Regarding occupational impairment, the Board notes that the Veteran told the May 2009 mental disorders examiner that he had not worked since 1998 when he was then doing "tree work" and could not physically work anymore. After considering the Veteran's psychiatric symptomatology and documentation in the claims file, the examiner found that the signs and symptoms of the Veteran's mental disorder were merely transient or mild and only decreased work efficiency and ability to perform occupational tasks during periods of significant distress. The examiner further described the Veteran's depression as "moderate" with only mild vocational limitations. As the Veteran himself attributed his inability to work to physical disability and the VA mental disorders examiner concluded that the Veteran's psychiatric disorder resulted in only mild vocational limitation, such evidence clearly weighs against the assignment of a disability rating higher than the currently assigned 50 percent for the Veteran's service-connected psychiatric disability. Additionally, regarding the Veteran's assertion that he no longer works, the Board notes that the statement is somewhat misleading and is not wholly consistent with the evidentiary record. While the Veteran may no longer perform any physical labor or does so only on a limited basis due to physical disability, the record clearly shows that he conducts a landscaping business and has for a number of years. Notably, in September 2008, the Veteran told his VA counseling group that he was receiving pressure from his brother to end his mental health treatment and get back to his landscaping business. Also, while the Veteran told the March 2010 VA mental disorders examiner that he had had no jobs since the prior examination, he also reported having a tree-cutting business at that time. Although the March 2010 mental disorders examiner wrote that the Veteran appeared to be having difficulty maintaining his tree-cutting business, such difficulty was attributed to legal procedures resulting from the death of an employee and financial difficulties, which were noted to have contributed to the Veteran's depressive symptoms. Notably, treating mental health providers have noted that the Veteran had limited stress coping skills. See, e.g., April 2010 VA mental health medication management note. The March 2010 VA mental disorders examiner also noted, however, that the Veteran's irritability, suspiciousness, inability to remain on track with conversations, and occasional drifting off into daydreams made it difficult for him to work with others. The examiner noted that the Veteran presented in a very negativistic, complaining, fatalistic, and entitled manner which would make normal employment relationship interactions challenging for others. The examiner further noted that the Veteran's depressive disorder was a "contributing factor" in his inability to maintain employment, social functioning, and mood stability at that time. Nonetheless, the Veteran is not shown to have any significant deficiency in work performance solely due to psychiatric symptomatology. Although the Veteran has had some difficulty with his business, such difficulty is primarily due to legal and financial problems. The Veteran, for the most part, appears to have been able to participate in running his landscaping business to some degree throughout the period. See, e.g., May 2010 physical therapy note (noting the Veteran's occupation/activity as working standing in a bucket truck cutting limbs and relating that he still worked intermittently). Additionally, as stated above, the mental disorders examiner has only found that the Veteran's depressive disorder was a contributing factor in his inability to maintain employment. Such is already contemplated in the award of a TDIU. Furthermore, the Veteran has repeatedly stated at various times during the course of his appeal that his physical problems, typically his back, have kept him from being able to maintain employment. Thus, upon review, the evidence does not indicate a degree of occupational impairment (i.e., deficiency in the area of work) due to service-connected psychiatric disability beyond what is already contemplated in the currently assigned 50 percent rating. Regarding social impairment, the Board notes that the Veteran has frequently reported having family conflict or tension to mental health professionals. See, e.g., VA mental health notes dated July 27, 2010 (identifying conflicting relationship with family members as a stressor) and April 10, 2010 (showing the Veteran feeling overwhelmed and frustrated with ongoing family tension). The Veteran has further stated that he has very little social interaction with people. See March 2010 VA mental disorders examination report. Nonetheless, he is not shown to have an outright inability to maintain effective social relationships. For example, at the May 2009 examination, the Veteran reportedly had five to ten good friends. He also stated that he had a good relationship with the woman with whom he lived at that time and had periods of remission in experiencing psychiatric symptomatology when he was around his family, which improved his capacity for adjustment. He additionally referenced his "girlfriend" when seeking medical treatment for back pain in February 2010. Furthermore, at the March 2010 VA mental disorders examination, the Veteran stated that he occasionally visited his mother. Thus, the evidence during the period shows that the Veteran has had some difficulty in maintaining his social relationships but does not demonstrate an outright inability to do so. In fact, he has been able to maintain a relationship with both his brother and mother to some degree and has even stated that being around his family improved his ability to manage his psychiatric symptomatology. He also has enjoyed a good relationship with a roommate, reportedly has several good friends, and even told a VA psychologist in July 2008 that he had lived with friends before his domiciliary admission. This evidence further weighs against the assignment of a 70 percent disability rating. The degree of social impairment demonstrated is already contemplated in the 50 percent disability rating. Regarding the area of judgment and thinking, the Board notes that the Veteran has frequently reported being depressed and/or experiencing anxiety and has even occasionally acknowledged having passive suicidal ideation during the period relevant to the appeal. The Veteran also demonstrated speech that is intermittently illogical or irrelevant. For example, the March 2010 VA mental disorders examiner noted the Veteran appeared very suspicious and paranoid and needed to be redirected several times during the clinical interview. The examiner later stated that the Veteran was unable to remain "on track" with conversations. However, at the May 2009 VA mental disorders examination, the Veteran acknowledged that his moods were short-lived and correlated with external stressors. He also told a mental health provider in May 2009 that his mood was only depressed at times. We find the Veteran's statements as to his experience of depressed and/or anxious mood to be of great probative value. There is no indication of near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Also, while the Veteran has occasionally endorsed passive suicidal ideation and demonstrated some tangential speech, he has more typically denied having any suicidal ideation and more typically showed no abnormalities with speech when seeking mental health treatment during the period. While the Veteran is shown to have impaired impulse control with irritability as evidenced by treatment records showing that the Veteran is diagnosed with impulse control disorder NOS versus intermittent explosive disorder on Axis I, there is no evidence of related periods of violence during the period despite prior incidents of physical violence toward his ex-wife or girlfriend and notations that the Veteran was volatile and a violence risk at various times during the period relevant to the current appeal. See, e.g., June 2008 mental health admission evaluation note (showing that the Veteran hesitantly admitted to a few periods of physical violence towards either his ex-wife or girlfriend) and July 2010 VA medication management note (noting that the Veteran has not had any episodes in 21 months). Moreover, while the Veteran was assigned a GAF score of 45 in May 2008 and July 2008 (months before filing the current claim), which would indicate serious symptoms or impairment due to psychiatric disability, such score does not best characterize the overall disability picture as shown by the evidence for the following reasons. First, such scores appear to be related primarily to the Veteran's alcohol and cocaine dependence rather than his service-connected depressive disorder. Second, mental health professionals have consistently and repeatedly assigned a GAF score of 55 during the claim/appeal period. A GAF score of 55 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers). Upon review, the Board finds that the overall disability picture as shown by the record is most consistent with moderate symptoms and impairment and is adequately compensated by the currently assigned 50 percent rating. Indeed, as stated above, although the Veteran has reportedly been unable to engage in manual labor for many years due to physical disability, he has been participating in running a landscaping business during for much of the time related to the current claim/appeal period despite having difficulty dealing with the stress and depressive symptoms caused by legal and financial problems resulting from an employee's unfortunate death. He has also been able to maintain a relationship with his mother and brother to some degree, as well as sustain friendships with others. There is even some evidence to suggest that the Veteran was able to have a romantic relationship. Thus, the Board finds that the overall evidence shows that the Veteran's psychiatric disability picture is more consistent with the schedular criteria for the currently assigned 50 percent rating, no higher. The best evidence in this case does not support the current evaluation, let alone a higher evaluation. In consideration of the foregoing, we find that the preponderance of the evidence weighs against finding that a higher initial rating is warranted for any portion of the appeal period. Thus, no staged rating is warranted. The Board has further considered whether this claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. However, after comparing the manifestations and reported impairment of function of the Veteran's psychiatric disability to the rating and schedular criteria now assigned, the Board does not find any symptoms or functional impairment that are not already encompassed by the currently assigned rating. There is no unusual or exceptional disability picture shown. Therefore, the schedular criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). Back disability and lower extremity radiculopathy The Veteran also seeks entitlement to higher initial ratings for his back disability and associated lower extremity radiculopathy. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Ankylosis, favorable or unfavorable, is the immobility and consolidation of a joint due to disease, injury, or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). During the course of this appeal, the criteria for rating spine disabilities were amended in August 2003, effective September 26, 2003. Amendment to Part 4, Schedule for Rating Disabilities, 68 Fed. Reg. 51,454 -51,458 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243 (2004)). Prior to that, the rating criteria for evaluating intervertebral disc syndrome were changed, effective September 23, 2002. Amendment to Part 4, Schedule for Rating Disabilities, 67 Fed. Reg. 54,345 -54,349 (Aug. 22, 2002) (38 C.F.R. § 4.71a, DC 5293 (2003)). The amended rating criteria for intervertebral disc syndrome were subsumed in the aforementioned amended rating schedule for spine disabilities. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran is entitled to resolution of his or her claim under the criteria that are more to his or her advantage. The prior criteria may be applied for the full period of the appeal. The new rating criteria, however, may be applied only to the period after their effective date. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Service connection for low back strain with lumbar degenerative disease, status post lumbar laminectomy and fusion, has been established with a staged 40 percent rating effective May 24, 2000 (the date of the claim), 10 percent rating from September 1, 2003, and 20 percent rating from March 13, 2008. See February 2009 rating decision. Because he filed his claim before the change in regulations, his service-connected back disability has appropriately been considered under both the former and amended schedule for rating spine disabilities. Back disability For the portion of the appeal period from May 24, 2000 to May 12, 2003 (which excludes the temporary 100 percent rating for the Veteran's period of convalescence following surgery from May 13, 2003 to August 31, 2003), the Veteran's back disability is rated as 40 percent disabling under the former diagnostic code for rating intervertebral disc syndrome (IVDS). He seeks entitlement to the next higher rating of 60 percent for IVDS. Under DC 5243, a 60 percent rating is prescribed when there is evidence of pronounced IVDS 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, with little intermittent relief. However, upon review of the evidentiary record, no such disability picture is shown. While the Veteran did present for medical treatment with complaints of low back pain, as well as pain and/or paresthesias involving the left and/or right lower extremity on numerous occasions during this portion of the appeal period, there was no demonstrable muscle spasm or ankle jerk shown. Additionally, and significantly, an August 2002 electromyography (EMG) study showed no evidence of lower extremity radiculopathy despite the Veteran's complaints of paresthesias and/or pain involving the lower extremities. Furthermore, in February and April of 2003, while an assessment of severe chronic low back pain and right lower extremity radiculopathy was noted and decreased light touch and pinprick in the right L4 distribution was demonstrated, the Veteran denied any left lower extremity symptoms, demonstrated muscle strength of 5/5 in all the lower extremities extremities, and had a negative straight leg test. Therefore, the overall disability picture as shown by the evidence does not more closely approximate pronounced IVDS as contemplated by the schedular criteria for 60 percent rating for this portion of the appeal period. While the Veteran has had frequent complaints of back pain together with complaints involving the lower extremities, the symptoms are not shown to be persistent; there is no muscle spasm; no absent ankle jerk; and no neurological findings appropriate to the site other than some sensory loss and occasional complaint of bowel incontinence. Furthermore, as stated above, the 2002 EMG study found no evidence of radiculopathy. Thus, the degree of disability is adequately contemplated in the currently assigned 40 percent rating and a higher rating is not warranted. Moreover, a rating in excess of 40 percent is not warranted under any other potentially applicable DC. There is no evidence of fractured vertebrae residuals associated with the Veteran's back disability so as to warrant an increased rating under DC 5285. Furthermore, ankylosis of the spine is not shown to be at an unfavorable angle at any time during the appeal period so as to warrant an increased rating under DC 5286. See generally 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. There are no other diagnostic codes that would provide a higher rating under the former rating criteria. Therefore, a preponderance of the evidence weighs against the Veteran's claim for a higher initial rating for this period under the former rating criteria for rating spine disabilities. September 1, 2003 to March 12, 2008 For the period from September 1, 2003 to March 12, 2008 (post-convalescence), the Veteran is assigned a 10 percent rating under the amended rating schedule. Under the amended schedule, the Veteran's IVDS (preoperatively or postoperatively) is to be evaluated either under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The term "chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so." 38 C.F.R. § 4.71a, DC 5243, Note (1). Upon review of the evidentiary record, the Board finds that a rating in excess of 10 percent is not warranted under either method. Regarding the first method, the Board recognizes that there is no evidence to suggest that the Veteran has had physician prescribed bed rest during the period. Therefore, an increased evaluation on this method of evaluation is clearly not warranted. With respect to evaluation under the second method (i.e., the General Rating Formula for Diseases and Injuries of the Spine), the Board similarly finds that an initial rating higher than 10 percent is not warranted. Under this method, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). In order for the Veteran to receive the next higher rating of 20 percent, there must be a disability picture that more closely approximates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, again, the evidence does not depict such a disability picture. Notably, an August 2003 treatment record is informative, although it is dated shortly before this portion of the appeal period. Indeed, at an August 2003 post-operative visit, the Veteran reported that his overall symptoms of back pain and leg pain had improved. He stated that he had no new complaint of any back pain or paresthesias in the legs. While he had some occasional pain in the right hip, it was slowly getting better as time went by. The treating medical provider noted that the Veteran was "doing very well" after his posterior lumbosacral instrumentation and fusion three months earlier. However, subsequent VA treatment records show complaints of back pain approximately a year later. For example, in June 2004, the Veteran presented for treatment of chronic joint pain, to include the back, and reportedly had pain localized to his back without radiation. In September 2005, the Veteran sought treatment for back pain with intermittent soreness of the right leg since the 2003 surgery, which was assessed an acute flare of low back pain without specific radicular distribution. In July 2006, the Veteran reported worsened back pain after having moved a fallen tree recently. Straight leg raise induced nonradicular back pain. In March 2007, the Veteran telephoned a VA medical facility with complaint of back pain. Nonetheless, a preponderance of the evidence weighs against the assignment of a higher initial rating for this period. While the available evidence for this period documents the Veteran's complaints of back pain, there is absolutely no evidence of incapacitating episodes or any indication that forward flexion of the thoracolumbar spine was greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour so as to warrant a 20 percent rating. Therefore, the Board finds that the Veteran's pain and any demonstrated functional loss is adequately contemplated by the currently assigned 10 percent rating under the amended schedule. No higher rating is warranted for the period. From March 13, 2008 forward For the period from March 13, 2008 forward, the Veteran is assigned a 20 percent rating under the amended rating schedule. The RO assigned the 20 percent rating based on pain, tenderness, limitation of flexion to 65 degrees, and the Veteran's wide-based gait due to low back pain. Upon review of the evidentiary record, the Board finds that a rating in excess of 20 percent is not warranted under the current rating criteria for rating spine disabilities. Regarding the first method, the Board recognizes that the Veteran told the March 2008 VA examiner that his back pain decreased with lying down. However, he did not indicate that he has ever been prescribed to treat his back pain by a treating medical provider at any time relevant to the period. Additionally, the examiner wrote that there had been no evidence of doctor-ordered bed rest in the past 12 months. As there is absolutely no evidence of incapacitating episodes due to the Veteran's service-connected back disability during the period, it is clear that the criteria for even a compensable rating, much less schedular rating higher than 20 percent, has not been met or approximated. Therefore, a higher rating on the basis of the total duration of incapacitating episodes for the appeal period is not warranted. With respect to second method (i.e., evaluation under the General Rating Formula for Diseases and Injuries of the Spine), the Board similarly finds that an initial rating higher than 20 percent is not warranted. Under this method, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). In order for the Veteran to receive the next higher rating of 40 percent, there must be a disability picture that more closely approximates forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. However, no such disability picture is shown. At the March 2008 VA medical examination, the Veteran demonstrated forward flexion to 65 degrees, with no evidence of loss of range of motion, fatigability, weakness, or instability with repetitive testing. He also noted that it would require speculation how a flare would affect the Veteran's function as there was no objective evidence of a flare shown at the examination. Similarly, at the March 2010 VA medical examination, the Veteran demonstrated forward flexion to 55 degrees with no change on repetitions of motion despite his complaint of morning stiffness, pain with increased activity, and flare-ups at least once or twice a day. Thus, even after considering Deluca factors, the Veteran's back disability does not result in any functional loss to the degree required for a higher initial rating - i.e., he is not shown to be limited to forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire spine. This evidence clearly weighs against finding the claim for this period. While treatment records show that the Veteran has had pain and stiffening of the back at various times, he is not shown to have forward flexion limited to 30 degrees or less during this period. Additionally, there is no indication of favorable ankylosis of the entire thoracolumbar spine so as to warrant an increased rating on that basis at any time relevant to this portion of the claim/appeal period. Thus, the evidence for this period indicates that manifestations of the Veteran's service-connected back disability more closely approximate the criteria for the currently assigned 20 percent rating. No higher rating is warranted. Furthermore, no compensable residuals are shown related to the surgical scar on the Veteran's back for the above periods which followed his 2003 surgery. The scar is consistently described as "well-healed" and is not shown to be of the characteristics (e.g., size or location) or result in any functional impairment as required for a separate compensable rating. Right and left lower extremity radiculopathy The Veteran is currently assigned separate 10 percent ratings for right and left lower extremity radiculopathy associated with his back disability under 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. Upon review of the evidentiary record, the Board finds the Veteran is appropriately assigned 10 percent ratings for his left and right lower extremity radiculopathy and a preponderance of the evidence weighs against a higher rating for either extremity. Regarding the right lower extremity, the Board notes that the Veteran complained of constant pain with radiation to his right leg, right groin area, and right calf at the March 2010 VA spine examination. He also demonstrated somewhat diminished reflexes of the right knee and right ankle. Sensory examination was intact and motor examination showed myotomes to be 4/5 (i.e., active movement against gravity and some resistance). However, the description of right lower extremity pain is inconsistent with a statement made by the Veteran the prior month while seeking medical treatment. In February 2010, the Veteran described his right lower extremity pain as "episodic" and even stated that his right lower extremity pain had been better recently. In May 2010, the Veteran similarly complained of "intermittent" intense pain in the right buttock. As the Veteran is likely to have accurately reported his symptomatology when seeking medical treatment, the Board finds his descriptions to medical providers to be far more credible and affords them greater probative value than the statement made by the Veteran at the medical examination conducted in connection with his VA disability claim. Additionally, in August 2009, the Veteran was evaluated for tingling and numbness of both lower extremities. After conducting a thorough evaluation of the Veteran, it was noted that the Veteran's right lower extremity EMG did not reveal any active changes - only very mild chronic MUAP changes were seen. It was also noted that there was no evidence of peripheral polyneuropathy as the clinical examination was normal with no deficits in sensation, reflexes, or muscle strength. This evidence weighs heavily against the assignment of a higher rating. Furthermore, the Veteran showed no abnormalities in deep tendon reflex testing, no weakness in manual muscle testing, and no loss of sensation below the knees at the March 2008 medical examination, which further weighs against the claim. Thus, although the Veteran showed somewhat diminished reflexes of the right knee and ankle and some diminished motor strength at the March 2010 medical examination, the credible and probative evidence shows that his right lower extremity pain was only episodic and was not shown to be more than mild on the most recent EMG. Furthermore, in June 2010, the Veteran's treating VA physician commented that the Veteran's symptoms in the right lower extremity were not consistent with the pattern of right L2 radiculopathy. She additionally noted that the Veteran's gait was normal, and there was no weakness noted in his bilateral lower extremities. He also had no muscle atrophy or fasciculation in the bilateral lower extremities. This evidence further weighs against the assignment of a higher rating. Therefore, in consideration of the above, the Board finds that a higher rating is not warranted for right lower extremity radiculopathy. Regarding the left lower extremity, the Veteran made no specific complaints pertaining to the left leg at either the March 2008 or March 2010 spine examinations. Although the Veteran did demonstrate a decreased sensation along the left proximal thigh at the March 2008 medical examination, he also demonstrated no weakness in manual muscle testing, and no loss of sensation below the knees. He was also shown to have normal knee and ankle reflexes at the March 2010 spine examination. While treatment records show that the Veteran has had complaints of pain and tingling in his left lower extremity at various times, there is no indication of any deficit other than sensory, which is adequately compensated by the 10 percent disability rating currently assigned. In consideration of the above, the Board finds that a preponderance of the evidence weighs the claim and a higher rating for the left lower extremity is also not warranted for the entire period. Although the Board has considered the argument advanced by the Veteran's attorney that he should be assigned a 40 percent or 60 percent rating under the former rating criteria throughout the appeal period, the overall disability picture does not more closely approximate the rating criteria for severe or pronounced IVDS at any time following the 2003 surgery. The Veteran was able to continue to work following the surgery with no evidence of radiculopathy until 2008. The Veteran himself even stated that he had no back pain or radicular symptoms after the surgery until approximately 2009. Subsequently, the radiculopathy is shown to be mild and the Veteran's back pain is not shown to be characterized by severe or pronounced IVDS. This evidence weighs heavily against the assignment of a higher schedular rating under the former rating criteria for IVDS for any time after the rating criteria were amended. In this regard, it is important for the Veteran to understand that there is significant evidence in this case against the Veteran's current evaluations, let alone higher evaluations. It is only with giving the Veteran all benefit of the doubt that the RO has awarded the current evaluations. Moreover, upon review of the evidence, the Board also notes that no other diagnostic code provides a basis to grant a higher schedular rating under the former rating criteria. There is no evidence of muscle spasm on extreme forward bending, moderate lumbar spine limitation of motion for the period from September 1, 2003 to March 12, 2008, severe limitation of lumbar motion from March 13, 2008 forward, ankylosis, or fractured vertebra residuals so as to warrant a higher rating under any potentially applicable diagnostic code under the former criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285 through 5295. The Board has further considered whether these claims warrant referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. However, after comparing the manifestations and reported impairment of function of the Veteran's back disability to the rating and schedular criteria now assigned, the Board does not find any symptoms or functional impairment that are not already encompassed by the currently assigned rating. There is no unusual or exceptional disability picture shown. While, at the March 2010 VA mental disorders examination, the Veteran told the examiner that he had last worked full time in 2000 when he was working for a moving company and he had lost significant amounts of work time due to his back condition (i.e., five to six days a month he was unable to go to work), the VA examiner concluded that the Veteran was able to do light duty work. Moreover, despite difficulty in performing physical labor, the Veteran's back disability is not shown to be the reason why he has had difficulty running his landscaping business. Therefore, the schedular criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). Earlier Effective Date The assignment of effective dates for awards of disability compensation is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. As pertinent here, where a claim has not been filed within one year after separation from service, the law provides that the effective date of an award of service-connected disability compensation based on an original claim or a claim reopened after final adjudication "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); 38 C.F.R. § 3.400(b)(2). Generally, except as otherwise provided, the effective date of a compensation award 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 later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Actual payment of such monetary benefits commences on the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is 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); 3.155. Any communication indicating an intent to apply for a benefit under the laws administered by 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 which may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Roper v. Nicholson, 20 Vet. App. 173 (2006), the Court held that effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date the Veteran applied for benefits. Earlier effective date for the grant of service connection for back disability The Veteran seeks an effective date earlier than May 24, 2000 for the grant of service connection for his back disability. The Veteran believes that he should be awarded service connection effective the day following his discharge. However, the Veteran first filed a formal claim for a back disability in August 1995, approximately fifteen years after separating from service. The Board denied the claim in September 1997 and that decision is final. After the Veteran filed an application to reopen the previously denied claim, the RO again the claim in September 1998. That decision is also final. The next communication from the Veteran expressing an intent to reopen his previously denied claim was received by VA on May 24, 2000. This is the effective date currently assigned for service connection of a back disability. If there is prior final denial of benefit sought, effective date cannot be earlier than subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332 (1995). Therefore, in consideration of the foregoing, entitlement to an earlier effective date for the grant of service connection for the Veteran's back disability is not warranted. Earlier effective date for service connection of lower extremity radiculopathy The Veteran also seeks an effective date earlier than March 13, 2008 for the grant of service connection (more specifically, a separate rating) for left lower extremity radiculopathy. He similarly seeks an effective date earlier than November 3, 2008 for the grant of a separate rating for left lower extremity radiculopathy. The Veteran seeks an effective date of August 1995, the date he filed his original claim for a back disability. From May 24, 2000 to May 12, 2003 (prior to the Veteran's back surgery), the Veteran's complaints pertaining to the lower extremities due to his back disability were encompassed in the 40 percent disability rating for IVDS (and the subsequent 100 percent convalescence rating). The former rating criteria for IVDS under which the Veteran is assigned the 40 percent rating and was in effect during that period specifically contemplates symptoms of sciatic neuropathy. Therefore, the assignment of separate ratings for lower extremity radiculopathy would constitute pyramiding and, therefore, is not permitted. 38 C.F.R. § 4.14. However, it is notable that a 2002 EMG study showed no evidence of lower extremity radiculopathy. In reviewing the evidence following the Veteran's back surgery and period of convalescence when the amended criteria is in effect, the Board notes that the Veteran complained of pain involving one or both of the lower extremities at various times. However, his complaints were first definitively clinically attributed to a diagnosis of radiculopathy associated with his service-connected back disability on March 13, 2008 for the left lower extremity and on November 3, 2008 for the right lower extremity. Prior complaints during this period had been attributed to other diagnoses such as Baker's cyst of the left knee and bilateral degenerative joint disease of the knees, as opposed to radiculopathy. It is also notable that, in June 2004, the Veteran presented for treatment of chronic joint pain, to include the back, and reportedly had pain localized to his back without radiation. In September 2005, the Veteran sought treatment for back pain and reportedly had experienced intermittent soreness of the right leg since the 2003 surgery. However, the primary care physician specifically assessed an acute flare of low back pain without specific radicular distribution. In July 2006, the Veteran reported worsened back pain after having moved a fallen tree recently, and straight leg raise induced nonradicular back pain. Moreover, in February 2010, when seeking treatment for chronic right low back pain, the Veteran specifically stated that his pain significantly improved after his 2003 back surgery and he did not have any significant low back pain or leg pain until the spring 2009. Thus, because entitlement to separate ratings for radiculopathy of the lower extremities did not arise until March 13, 2008 for the left lower extremity and on November 3, 2008 for the right lower extremity, an earlier effective date is not warranted for either extremity. Earlier effective date for TDIU The Veteran seeks entitlement to an effective date for a TDIU prior to November 21, 2008. He believes that he should be awarded an effective date of May 24, 2000. Prior to November 21, 2008, the Veteran is not shown to meet the threshold percentage requirements for the award of a TDIU under the provisions of 38 C.F.R. § 4.16(a). Nonetheless, a TDIU may be awarded under the provisions of 38 C.F.R. § 4.16(b) when the evidence shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, upon review of the evidentiary record in this case, we note that the Veteran is shown to have been working at his tree-trimming business prior to November 21, 2008 despite his assertion that he stopped working in 2000. For example, when the Veteran sought treatment for left shoulder pain in September 2004, the Veteran reported that he had been doing a lot of work with pull-saws and his tree-trimming business had gotten busy during the past month. When the Veteran subsequently sought treatment for back pain in October 2005, he reportedly continued to experience pain when doing heavy lifting at work. In July 2006, the Veteran was noted to be continuing work in tree trimming and removal. In September 2008, approximately two months before the currently assigned effective date, the Veteran even admitted to a VA mental health provider that he worked eight to ten hours a day at his business. Such evidence is considered highly probative and weighs heavily against the claim. The evidence does not in any way indicate that the Veteran is rendered unemployable due to his service-connected disabilities, undermining his statements to the VA. Additionally, the Board notes that records from the Social Security Administration (SSA) provide further evidence against the claim. Indeed, in March 2007, the SSA denied the Veteran's claim for disability benefits after having found that the Veteran was not disabled. In reviewing the records, it is notable that the SSA found inconsistencies in the evidence regarding the Veteran's work history and, in January 2007, asked him to clarify. He had stated on his SSA application that he had not worked since 2000 but a treatment record dated in July 2006 indicated that he continued work. In response, the Veteran stated that he did some odd jobs just to survive and earned under $400 per month. He further stated that he has been unable to perform any tree work since July 2006 and, when he had worked, it was only for three hours a week or less. This statement suggests that the Veteran may be marginally employed. However, after consideration of the above, we do not find the Veteran's assertion to be credible. As stated above, the Veteran told a VA mental health provider in September 2008 that he worked eight to ten hours a day at his business. This statement is in stark contradiction his prior report that he only did "odd jobs" for three hours a week or less. For that reason, we find the allegation of marginal employment to be without merit. As the Veteran did not meet threshold percentage requirements for a TDIU and was not otherwise shown to be unemployable prior to November 21, 2008, an earlier effective date is not warranted. Duty to Notify and Assist Finally, the Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Prejudicial error in VCAA notice has neither been alleged nor shown in this case, as will be explained below. The Veteran is challenging the initial ratings and effective dates assigned following the grant or implementation of service connection for a low back disability, radiculopathy of the lower extremities, depressive disorder, and a TDIU in the February 2009, August 2009, and May 2010 rating decisions. The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra, at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed under the VCAA with regard to the claims. Moreover, under 38 C.F.R. § 3.159(b)(3)(i), there was no duty to provide the Veteran with VCAA notice upon receipt of a NOD. Notwithstanding the above, the Veteran was advised how VA determines the disability rating and effective date once service connection has been established in the April 2009 notice letter, which included the current criteria for rating spine disabilities and associated radiculopathy. The claims for service connection of the Veteran's back disability and lower extremity disabilities were subsequently readjudicated. Regarding the Veteran's depression, he was advised in the June 2009 notice letter provided in connection with the Veteran's original service connection claim of how VA determines the disability rating and effective date once service connection has been established. Moreover, the Veteran has been provided with copies of the above rating decisions, as well as the SOCs and SSOCs, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered to reach the decisions. The Veteran through his attorney has demonstrated ample understanding of the evidence needed to substantiate his claims through correspondence submitted during the course of this appeal. He has been represented by his current attorney throughout the course of this appeal. He has further been provided with ample opportunity to submit evidence and argument in support of his claims and to participate effectively in the processing of his claims during the course of this appeal. Furthermore, the Veteran and his attorney have been provided with a copy of the above rating decisions, and the multiple SOCs and SSOCs issued during the course of his appeal, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered to reach the decisions. Thus, in consideration of the foregoing, the Board finds that the RO sufficiently satisfied the notice requirements with respect to the issues on appeal. Regarding VA's statutory duty to assist in claims development, treatment records adequately identified as relevant to the Veteran's claims have been obtained to the extent possible, or otherwise submitted, and are associated with the record. There are no additional treatment records found in the Veteran's Virtual VA folder. Records from the Social Security Administration (SSA) have also been obtained. Additionally, the Veteran has been afforded with medical examinations in connection with his initial rating claims. The examination reports include all relevant findings for a fair adjudication of the Veteran's claims and the medical opinions are based on adequate data and supported by adequate rationale. There is no medical evidence, or argument from the Veteran, of a material change in symptomatology since last examined. See 38 C.F.R. § 3.327(a). Therefore, the examination reports are deemed adequate for the purposes of this adjudication. Neither the Veteran nor his attorney has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. ORDER An initial rating higher than 50 percent for service-connected depressive disorder NOS is denied. An initial rating higher than 40 percent disabling from May 24, 2000 to May 12, 2003 for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion is denied. An initial rating higher than 10 percent disabling from September 1, 2003 to March 12, 2008, for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion is denied. An initial rating higher than 20 percent disabling from March 13, 2008 forward, for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion is denied. An initial evaluation higher than 10 percent for service-connected left lower extremity radiculopathy is denied. An initial evaluation higher than 10 percent for service-connected right lower extremity radiculopathy is denied. An effective date earlier than May 24, 2000 for the grant of service connection for service-connected low back strain with lumbar degenerative disc disease, status post lumbar laminectomy and fusion is denied. An effective date earlier than March 13, 2008 for the grant of service connection of left lower extremity radiculopathy is denied. An effective date earlier than November 3, 2008, for the grant of service connection of right lower extremity radiculopathy is denied. An effective date earlier than November 21, 2008 for the grant of a TDIU is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs