Citation Nr: 1309486 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 02-08 656A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 40 percent for lumbosacral strain. 2. Entitlement to an effective date prior to May 25, 2010, for the assignment of a total evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from April 1971 to November 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Procedural History The Veteran's claim for an increased initial evaluation was previously denied by the Board in February 2009. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court) which, in January 2010, issued an order granting a Joint Motion for Remand (Joint Motion), vacating the February 2009 Board decision and remanding the Veteran's claim to the Board for additional consideration. The Board then remanded the Veteran's claim for additional development in April 2010 and December 2011. The Agency of Original Jurisdiction (AOJ) issued a rating decision in August 2011 awarding TDIU benefits, thus fully satisfying the appeal on the issue of entitlement to TDIU. In a September 2012 rating decision, the AOJ awarded an earlier effective date of May 25, 2010, for the award of TDIU; the Veteran properly appealed the effective date assigned. The issues as stated above have returned to the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is manifested by no more than subjective complaints of pain, difficulty standing and sitting, fatigability with objective evidence of severe limitation of motion; there is no evidence of ankylosis of the lumbar spine or of the entire spine, associated neurological manifestations or incapacitating episodes. 2. The Veteran's lumbar spine disability by itself does not result in marked interference with employment or frequent hospitalization; manifestations of the disability are contemplated by the applicable schedular rating criteria. 3. Prior to May 25, 2010, the Veteran was serviced-connected for lumbosacral strain, evaluated as 40 percent disabling, and anxiety with depressive symptoms, evaluated as 10 percent disabling. His total combined evaluation was no more than 50 percent. 4. The Veteran does not meet the schedular criteria for TDIU prior to May 25, 2010, and his service-connected disabilities are not shown during this period to render him unable to obtain and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 40 percent for lumbosacral strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.71a, Diagnostic Codes 5237 and 5243 (2012). 2. The criteria for the assignment of TDIU due to service-connected disabilities prior to May 25, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, 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 been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, VA's duty to notify was satisfied subsequent to the initial AOJ decision by way of September 2005 and March 2006 letters sent to the appellant that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate his increased rating claim, and of the appellant's and VA's respective duties for obtaining evidence. Although the notice letters were not sent before the initial AOJ decision on these matters, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case through the issuance of several supplemental statements of the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded multiple VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board finds these VA examinations adequate for the purposes of the instant claim, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate description of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was remanded by the Board in April 2010 and December 2011 for additional development. Specifically, in accordance with January 2010 Joint Motion, the Board instructed that the Veteran's claim be forwarded to the Director of VA's Compensation and Pension Service (C&P) for consideration of an extraschedular evaluation. This determination was rendered by the Director of C&P in August 2012. As such, the Board finds there has been substantial compliance with prior remands, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis I. Increased Evaluation Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Schedular Evaluation 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; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 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. The Veteran's lumbar spine disability has been evaluated as 40 percent disabling throughout the course of the appeal. Initially, the Board observes that the schedular criteria for evaluating disabilities of the spine have undergone revision during the pendency of this appeal. Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected low back disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g). Prior to September 26, 2003, disabilities manifested by limitation of motion in the lumbar spine were evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). A maximum evaluation of 40 percent was assigned for severe limitation of motion of the lumbar spine. Also prior to September 26, 2003, lumbosacral strain was evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.17a, Diagnostic Code 5295 (2003). The highest available schedular evaluation, 40 percent, was warranted where the condition was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint spaces, or with some of these characteristics with abnormal mobility on forced motion. Id. Intervertebral disc syndrome (either preoperatively or postoperatively), rated under Diagnostic Code 5293, is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The criteria contained in Diagnostic Code 5293 provides for a 40 percent evaluation where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (3). Effective from September 26, 2003, disabilities of the thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). The Formula provides the following ratings, in relevant part: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation contemplates unfavorable ankylosis of the entire thoracolumbar spine, whereas a maximum 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. Id. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension". See id., Note (5). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine". 68 Fed. Reg. at 51,455 (Supplementary Information). Having considered the evidence of record under both the former and new rating criteria, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent for his lower spine disability on a schedular basis. In this regard, the Board notes that the Veteran's thoracolumbar spine disorder was manifested during the appeal period by subjective complaints of pain, difficulty standing and sitting, fatigability and decreased range of motion. In addition, there is objective evidence of painful motion, tenderness and severe limitation of motion of the thoracolumbar spine. There is no evidence, however, of ankylosis of the thoracolumbar spine or the entire spine, nor is there evidence of compensable neurologic abnormalities or incapacitating episodes having a total duration of at least six weeks during a twelve-month period. The Board observes that the Veteran is currently assigned the highest possible evaluation for limitation of motion of the lumbar spine, under both the new and old criteria. As such, a discussion of range of motion testing, including any additional limitation due to the standards outlined in DeLuca, supra, is unnecessary. The Board also notes that a higher evaluation is not warranted under the General Rating Formula or former Diagnostic Codes 5286 and 5289, as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or entire spine. There is no evidence, nor assertion by the Veteran, included in the claims file that the Veteran has had incapacitating episodes at any time over the relevant appeals period, defined by regulation as doctor-prescribed bed rest. The September 2008 examiner noted that the Veteran had not been bedridden at any time over the previous year. Therefore, the Veteran's service-connected back disability would not warrant a higher rating based on incapacitating episodes under Diagnostic Code 5243-5293. The Board has also considered whether a separate evaluation for neurological disability is warranted. In this regard, the Board acknowledges the Veteran's occasional complaints of radiating pain from his back into his buttocks and legs. See, e.g., June 2005 Penn Pain Medicine Center treatment note. However, the Board observes that the evidence of record does not contain a diagnosis lumbar radiculopathy. All of the VA examinations of record have indicated that there are no neurological symptoms associated with the Veteran's service-connected back condition. In fact, the September 2008 VA examiner noted that the neurological examination was nonfocal, that deep tendon reflexes were symmetrical, preservation of the ankle reflexes was noted and there were no sensory or motor deficits. A May 2010 VA examination report specifically finds there are no radicular symptoms at this point. In addition, the June 2004 and October 2005 VA examinations as well as a December 2003 physical examination indicate the veteran has normal deep tendon reflexes of 2+. No other muscular reflex abnormalities or impairment of motor strength are indicated. Finally, there is no evidence of record that the Veteran suffers from bowel or bladder impairment. Thus, the Board finds that a separate evaluation for neurological disability is not warranted. Based on the discussion above, the Board finds that the competent medical evidence demonstrates that an evaluation in excess of 40 percent is not warranted on a schedular basis at any point during the appeal period. The Veteran is in receipt of the maximum evaluation available based on limitation of motion, and there is no competent evidence of ankylosis, incapacitating episodes or neurological manifestations. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation for the Veteran's lumbar spine disability on a schedular basis, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Extraschedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In accordance with the January 2010 Joint Motion, the Board instructed that the Veteran's claim be forwarded to the Director of C&P for consideration of an extraschedular evaluation. See April 2010 and December 2011 Board remands. In August 2012, following a review of the claims file, including the Veteran's pertinent medical history and July 1996, November 2000, January 2002, September 2008 and May 2010 VA examination reports, the Director of C&P determined that an extraschedular evaluation is not warranted. As such, the Board may now properly consider entitlement to an extraschedular evaluation on the merits. The Board must consider all of the pertinent medical evidence as well as the Veteran's individual circumstances in the determination of whether an extra-schedular rating is warranted. Significantly, as discussed in the January 2010 Joint Motion, the Veteran points out that both the September 2008 and May 2010 VA examination reports note that he is unable to perform the duties of a bus driver, his previous occupation, as he cannot sit for prolonged periods of time and is taking narcotics (Percocet) daily. However, the Board observes that, while the September 2008 and May 2010 VA examination reports note the Veteran is unemployable in the Veteran's chosen profession as a bus driver, neither suggests he is unable to perform any gainful occupation. To this point, the Board observes that while a SSA decision ultimately found the Veteran to be disabled for the purposes of SSA benefits, this decision was based not only on the Veteran's back disability, but also his advanced age and coronary impairment, both considerations not pertinent to the instant appeal. Furthermore, the Board again notes the VA examiners cited the Veteran's narcotics use as a basis for determining that he was unable to perform his previous duties as a bus driver. While he was prescribed narcotics at the time, the Board notes that, for a significant portion of the current appeal, the Veteran was taking narcotics not prescribed to him; either obtaining them from his girlfriend or buying them off the street. See, e.g., November 2005 VA treatment note (indicating the Veteran buys narcotics off the street), January 2006 VA urgent care note (indicating the Veteran was using his girlfriend's morphine). For the portion of the Veteran's appeal during which he was not prescribed narcotics for his back disability, but rather obtaining them illegitimately, the fact that such medication may have rendered him unable to perform the duties of a bus driver is not probative evidence regarding the assignment of an extraschedular evaluation. Ultimately, the Board must determine whether the Veteran's lumbar spine disability presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Based on the evidence in its entirety, the Board in its capacity as a finder of fact finds that the manifestations of the Veteran's lumbar spine disability are adequately contemplated by the applicable rating criteria. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("[f]act-finding in veterans cases is to be done by the expert BVA [Board]..."). The diagnostic criteria discussed above contemplate the Veteran's subjective complaints of pain, difficulty walking and sitting, prescribed medication, if any, and objective findings of severe limitation of motion without ankylosis of the spine. As such, the Board therefore has determined that an extra-schedular evaluation pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. II. Earlier Effective Date TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). In general, applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and 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 claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) ; 38 C.F.R. § 3.400(a) . An effective date for such an increased rating or TDIU claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe. See 38 U.S.C.A. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(2) ; see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Stated in other terms, the earliest date possible for a TDIU rating is one year prior to receipt of the claim. 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, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a) ; 38 C.F.R. § 3.151(a) . An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p) , 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) ; see also Rodriguez (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). 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). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (emphasis added). The law provides that 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 disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). In August 2000, the RO received the Veteran's claim for TDIU. In August 2001, the RO denied his claim. He appealed this decision to the Board. The Board remanded the matter several times. In August 2011, the RO granted TDIU effective May 15, 2011. Thereafter, in a September 2012 RO decision, it was determined that an error had been made with regard to the assigned effective date. Specifically, it was determined that May 15, 2011 did not represent the date of the VA examination which established that the criteria for an increased evaluation for anxiety were met but that the correct date of the VA examination was May 25, 2010. The assignment of an increased rating for anxiety to 30 percent as of May 25, 2010, resulted in the establishment of a combined rating as of 60 percent. Ultimately, the RO determined that the scheduler requirements of TDIU had been met as of May 25, 2010. It was determined that the Veteran's back disability caused severe pain which prevented him for sitting for long periods of time and that he had increased depression and anxiety because of his decreased mobility and pain. As a result, it was determined that he was unable to secure or follow a substantially gainful occupation as a result of impairment from service-connected disability. Prior to May 25, 2010, the Veteran was serviced-connected for lumbosacral strain, evaluated as 40 percent disabling, and anxiety with depressive symptoms, evaluated as 10 percent disabling. His total combined evaluation was no more than 50 percent disabling during this period. The Veteran did not meet the schedular criteria for TDIU at any time prior to May 25, 2010. 38 C.F.R. § 4.16(a). As such, the claim of entitlement to an effective date prior to May 25, 2010, for TDIU on a schedular basis must be denied. Where the schedular percentage requirements are not met, entitlement to TDIU benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities; consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has considered whether the Veteran's disability picture prior to May 25, 2010, warrants referral for consideration of an extraschedular evaluation for TDIU. However, the Board finds that a remand for referral of the Veteran's claim for consideration of TDIU prior to May 25, 2010, is not proper in this case. The Veteran has indicated he has one year of college education in the field of marketing. In 2010, he reported a history of losing his job driving a motor coach bus in 2005 and then entering into retirement. He related he left his job driving due to back pain not mental health issues. As previously discussed, such evidence does not indicate he is unable to perform any gainful occupation, but rather is unemployable in his chosen profession as a bus driver. Although he was awarded SSA benefits in 2005, such award was based on a combination of factors to include impairment stemming from non-service-connected disabilities (to include advanced age and heart impairment). Notably, in August 2012, the Director of Compensation and Pension determined that the assignment of an extraschedular rating was not warranted for the Veteran's service-connected back disability and that the assigned rating adequately compensated him for his impairment. Further, with respect to the Veteran's service-connected anxiety with depressive symptoms, the Board observes a May 2010 VA psychiatric examination specifically found that his mental disorder does not interfere with his employment functioning. Rather, it is the Veteran's difficulty maintaining employment that has resulted in his anxiety and depression. In summary, no medical evidence has been submitted to suggest that the Veteran's back and psychiatric disorder, when considered in conjunction with each other, rendered him unable to maintain employment prior to May 25, 2010. Although the Veteran believes that he could not secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the more persuasive medical evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as whether he can secure or follow a substantially gainful occupation as a result of service-connected disability. In any event, any probative value of the Veteran's own conclusions is far outweighed by that of the opinions provided by the medical professionals who examined the Veteran and found that his service-connected back and psychiatric disorders were productive of impairment that clearly did not rise to the level of unemployability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence shows that Veteran's service-connected back and psychiatric disorders impaired his earning capacity in civilian occupations prior to May 25, 2010. However, the 50 percent combined disability rating compensated him for this impairment. See 38 C.F.R. § 4.1 . The medical evidence of record reflects that the Veteran's service-connected disabilities did not preclude him from securing and following a substantially gainful occupation. Consequently, because the objective evidence did not indicate that the Veteran was unemployable by reason of service-connected disability, prior to May 25, 2010, referral of this case to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b) is not warranted. See 38 C.F.R. §§ 3.340 , 3.341, 4.15, 4.16; Bagwell, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1996). ORDER An evaluation in excess of 40 percent for lumbosacral strain is denied. An effective date prior to May 25, 2010, for the assignment of a TDIU evaluation is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs