Citation Nr: 1309804 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 07-36 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than April 25, 2000, for an award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from June 1959 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By way of procedural history, the Veteran's initial claim of entitlement to TDIU was filed in July 1992, as part and parcel to a claim for an increased disability rating for the Veteran's low back disability. TDIU was originally granted to the Veteran in a March 2002 rating decision issued by the Winston-Salem RO, with an effective date of August 27, 2001. In a March 2005 decision and remand, the Board granted an increased disability rating of 60 percent for the Veteran's low back disability. In the same decision and remand, the Board remanded the issue of entitlement to an effective date earlier than August 27, 2001 for TDIU. The Board reasoned that although its decision granted the Veteran a 60 percent disability rating for his low back disability, and hence, the Veteran met the basic eligibility requirements for TDIU under 38 C.F.R. § 4.16(a), an effective date had yet to be assigned by the RO for the higher rating. The Board reasoned further that the issue of the effective date for TDIU must be determined by the RO in the first instance, and hence, remanded that issue to the RO for its initial adjudication. The Board also noted that since the Veteran's initial claim for TDIU was determined to have been filed in July 1992, the Veteran could potentially be entitled to an effective date for TDIU as early as July 1992, depending upon the evidence. Hence, the Board identified that, depending upon the effective date determined for the Veteran's increased 60 percent disability rating, the RO must also consider referring the issue of TDIU, on an extraschedular basis, to the Director of the Compensation and Pension Service pursuant to 38 C.F.R. § 4.16(b) for any period in which the increased 60 percent disability rating was not in effect. As part of its remand, the Board also directed the RO to obtain additional VA treatment records from the facilities in Durham, Salisbury, and Winston-Salem, North Carolina, for any treatment provided since July 1991. In an April 2005 rating decision, the RO assigned an effective date of July 29, 1992 for the increased 60 percent disability rating provided in the Board's decision and remand. Following further development that was consistent with the Board's March 2005 remand, the RO issued a November 2006 rating decision that granted an earlier effective date for TDIU of April 25, 2000. This issue remains in appellate status before the Board because the Veteran contends that he has been unemployable due to his service-connected disabilities since some period in the early to mid 1990s. Thus, the current effective date, in April 2000, does not constitute a complete grant of the maximum benefit sought. Thus, the issue remains in appellate status. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also, e.g., See AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) (a Veteran may expressly "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law."). In July 2011, the Board issued a decision denying entitlement to an effective date prior to April 25, 2000 for an award of TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Memorandum Decision, the Court vacated the Board's July 2011 decision and remanded the claim to the Board for further proceedings consistent with the Memorandum Decision. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's claim for TDIU was received by the RO on July 29, 1992, as part and parcel to a claim for an increased disability rating for the Veteran's service-connected low back disability. 2. At all times relevant to this appeal, service connection has been in effect for the Veteran for chronic low back strain and sacroiliac arthritis with arachnoiditis, rated as 60 percent disabling effective July 29, 1992. Service connection is also in effect for the Veteran for depression, rated as 30 percent disabling effective August 27, 2001. 3. In a March 2002 rating decision, the RO granted entitlement to TDIU effective August 27, 2001. 4. Following further development as directed by the Board's March 2005 remand as to this issue, the RO granted an earlier effective date of April 25, 2000 for the award of TDIU. 5. The evidence does not show that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation before April 25, 2000. CONCLUSION OF LAW The criteria for an effective date earlier than April 25, 2000, for an award of TDIU have not been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(q), 3.31, 3.105(a), 3.151(a), 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with Fletcher in mind. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the 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 claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are 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). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). That said, the Veteran's earlier effective date claim for a TDIU is a "downstream" element of the RO's grant of entitlement to a TDIU in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Notwithstanding the same, the Board observes that a letter mailed to the Veteran in June 2005 provided him with full notice as to the information and evidence needed to substantiate his claim for an earlier effective date for TDIU, and what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Finally, if a disability rating cannot be awarded based on the available evidence, the Board must determine if a medical opinion is necessary to make a decision on the claim. See 38 U.S.C. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006); Wells v. Principi, 326 F.3d 1381, 1383-84 (Fed.Cir.2003). As directed by the Court's September 2012 Memorandum Decision, the Board has considered whether a retrospective medical opinion is necessary. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). In this case, the Board determines that a retrospective medical opinion is not necessary because the lay and medical evidence of record demonstrates that the Veteran's early retirement from his position with the United States Postal Service was due to a combination of his service-connected low back disability and residuals and a nonservice-connected left lower extremity fracture. Moreover, prior to the nonservice-connected injury the Veteran was able to perform his duties and had missed "very little time" from work due to his service-connected disabilities. As will be discussed in greater detail below, the evidence of record following his early retirement fails to suggest that prior to April 25, 2000 the Veteran was unable to maintain substantially gainful employment, including particularly at his prior position with the U.S. Postal Service or a position involving similar duties. In light of the foregoing, the Board concludes that a retrospective medical opinion is not necessary. Earlier Effective Date for TDIU A claim for a TDIU is a claim for an increased rating. See Hurd v. West, 13 Vet. App. 449 (2000) (holding that a claim for TDIU is a claim for increased compensation and the effective date rules for increased compensation apply to a TDIU claim); see also Norris v. West, 12 Vet. App. 413 (1999). A Veteran may be awarded a TDIU rating if the evidence shows that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable as 60 percent disabling or more, or, if there are two or more disabilities, there shall be at least one disability ratable as 40 percent disabling or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGC 75-91. The issue is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability; that is, whether the Veteran is unable to secure or follow any form of substantially gainful occupation consistent with his education and occupational experience. Hatlestad v. Brown, 5 Vet. App. 524 (1993). A claim for TDIU is a claim for increased compensation if, as in this case, the "disability upon which entitlement to TDIU is based has already been found to be service connected." Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Accordingly, the assignment of an effective date is controlled by the criteria for assigning the effective date for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2); see also 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. at 126; 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157. Once a formal claim for compensation has been allowed, receipt of a report of examination by VA, or evidence from a private physician, will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. As fully explained above and in the Board's March 2005 decision and remand, the Veteran's claim for TDIU is construed as having been received by VA on July 29, 1992. Through a May 2011 brief filed on the Veteran's behalf by his designated representative, the Veteran asserts that the proper effective date for his TDIU rating is July 29, 1992, the date on which his claim was first received by VA. In support of his claim, the Veteran asserts in a December 2006 Notice of Disagreement that he has not been gainfully employed since 1996. Based upon the legal principles discussed above, the proper effective date for the Veteran's TDIU is the later of the date of receipt of his TDIU claim, the date within one year prior to receipt of the claim when an increase in disability occurred such that the Veteran was unable to secure or maintain substantially gainful employment, or the date on which entitlement to TDIU first arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Since the Veteran's claim for TDIU is construed by the Board as having been received on July 29, 1992, the earliest possible effective date to which the Veteran may be entitled is July 29, 1991. Nonetheless, based upon a thorough review of the evidence in this case, the Board finds that the Veteran is not entitled to an effective date earlier than April 25, 2000 for TDIU. In this regard, the Board notes that the Veteran's post-service treatment records since 1966 document ongoing and persistent low back pain which was severe at times. Between 1968 and 1975, the Veteran was hospitalized on numerous occasions for complaints of severe low back pain with radicular symptoms in the left leg. On each occasion of hospitalization, the Veteran was treated with traction and injections of zylocaine and steroids before being discharged after the Veteran reported improvement of his symptoms. During the Veteran's hospitalization from April to June of 1974, the Veteran remarked to his physicians that he did not feel that he was able to maintain his job with the U.S. Postal Service. Nonetheless, the corresponding hospital records do not reflect any opinions from the Veteran's treating physicians that the Veteran was unfit to secure or follow a substantially gainful occupation. Moreover, as discussed below, subsequent records indicate that the Veteran was able to continue his employment in the U.S. Postal Service through 1993, although some measure of his continued employment was due to accommodation by his employer that included switching job positions and having assistance in activities such as lifting. VA treatment records beginning in 1991 document ongoing complaints of low back pain with numbness and weakness of the left leg. Records from August 1991 and January 1992 reflect that the Veteran reported that he remained employed by the U.S. Postal Service as a window clerk. At his January 1992 visit, the Veteran remarked that his work as a window clerk was better than working in duties in which he was required to lift. He also had a good friend at work who helped with the Veteran's duties on bad days. In July 1992, the Veteran fractured his left leg when his garden tractor started to turn over and he tried to use his left leg to keep it upright. The Veteran reported decreased symptomatology during August 1992 physical therapy for his back and left lower extremity. During a July 1993 6-month check-up for his back problems, the Veteran reported that he was ambulating well since fracturing his left knee, although he did have a limp and difficulty squatting as a result of his left lower extremity problems. A subsequent July 1993 record noted that the Veteran had been told not to lift with his back and also was having difficulty lifting due to post-operative residuals of a left knee fracture. An August 1993 private treatment record indicated that the Veteran's chronic back pain had been doing well until a few days previously and that at present he experienced lumbar pain with radiation down the left leg. On examination, there was tenderness to percussion and palpation. During an October 1993 RO hearing, the Veteran stated that prior to breaking his leg he had been able to lift 40 to 70 pounds because he had been able to use his knees to take pressure off his back. But he could no longer lift such weights because of his nonservice-connected residuals of left knee fracture. At a December 1993 VA neurological examination, the Veteran reported pain in the low back radiating into the left lower extremity that caused weakness, falls, and loss of motion. Prolonged standing or sitting was difficult and lifting caused significant pain. According to the Veteran, he had taken an early retirement from the U.S. Postal Service due to his low back and left leg symptoms. He also reported that currently he was employed with a realty company. That said, he also stated that he had been unable to work since July 1992, other than a few hours a day "when I feel like it." A neurological examination at that time confirmed the presence of diminished strength in the left leg. A sensory examination revealed the loss of pinprick, light touch, and vibratory sensitivity in the left leg. The VA examiner did not render an opinion that the Veteran's neurological symptoms prevented him from securing or maintaining gainful employment. Subsequent treatment records continued to reveal complaints of radiating low back pain. At a July 1994 treatment, the Veteran demonstrated diminished lumbosacral motion which included extension to 20 degrees, right lateral flexion to 35 degrees, left lateral flexion to 32 degrees, and forward flexion to 80 degrees. At a December 1994 treatment, however, the Veteran reported some improvement in his back symptoms, stating that his pain had gone away completely after taking a bath. According to the Veteran, he had not experienced any severe back pain since that time and had decided not to pursue any surgical options. Treatment records in 1996, however, show that the Veteran's symptoms returned. In February 1996, the Veteran reported that he was having episodes of very severe low back pain. During a September 1996 Board hearing, the Veteran reported that he had retired from the U.S. Post Office because of his back problems and that he had tried selling insurance, but had been unable to continue because getting out of the car and climbing onto porches had aggravated his back. He also was trying to work in real estate, but was having difficulty there as well. The Veteran had difficulty with physical activities, such as bending, and problems with extended sitting and rainy weather. The problems often were more bothersome at night. He had retired after 26 years with the U.S. Postal Service, but it was not a retirement based on physical disability. The Veteran conceded that no medical professional had recommended that he retire from the postal service. Instead, he asserted that he was offered early retirement and took it because he had a broken leg at the time and was afraid that he would miss more work. Prior to his retirement, he was losing "very little time" at the job because he had switched positions at work. The Veteran was afforded VA spine and neurological examinations in February 1997. At that time, the Veteran reported that he had not worked very much since May 1996 and also discussed overturning a garden tractor and suffering a fractured left tibia and restraining his back four years earlier. On examination, the Veteran was able to stand on his toes and heels, as well as squat. The Veteran also had forward flexion to 65 degrees, extension to 30 degrees, bilateral lateral flexion to 35 degrees, and bilateral rotation to 30 degrees. Although left lower extremity weakness was noted, the Veteran was able to stand on his heels and toes and was also able to squat. No fixed deformities of the spine or postural abnormalities were observed. Neurologically, diminution of vibration was present in the left knee and ankle and 4/5 weakness was detected in the left leg. The examiner noted that the Veteran reported that weather and riding affected his back pain; however, the examination occurred on a cold and rainy day and the Veteran had ridden to the examination. As such, the examiner concluded that the Veteran was felt to be at "maximum disability." The Veteran did not have any increased loss of motion due to weakened movement, excessive fatigability, or uncoordination. In essence, his pain did not significantly limit his functional ability. Once again, however, no opinion was given that the Veteran's symptoms prevented him from securing or maintaining gainful employment. In July 1997, the Veteran reported that he had been in a car accident in May, following which he experienced increasing pain and discomfort in the back. In July 1997 and September 1997 statements, the Veteran criticized the findings of the February 1997 VA examiner. The Veteran disputed that it was raining at the time of the examination and that he was at "maximum disability" at the time of the examination. In support of this assertion, the Veteran claimed the examination had taken only five minutes and that the examiner failed to consider his reports of pain during the examination and his difficulty sleeping during the night. The Veteran claimed that he experienced periods of unremitting pain, but that at the time of the February 1997 VA examination he was not experiencing that level of pain. The Veteran was afforded a VA orthopedic examination in April 1998. He reported constant lumbosacral pain radiating into the left lower extremity. The symptoms were aggravated by bending, lifting, sitting, and partially relieved by walking, hot tubs, and medication. The Veteran reported working as a postal employee until retiring in 1993 due to his back and had not worked since, except for a six month period as an insurance salesman in 1993. On examination, there was limitation of motion of the lumbosacral spine; however, straight leg raises were possible to 90 degrees bilaterally while sitting. There was no atrophy of the muscles of the lower extremities. There was no evidence of weakened movement, excessive fatigability, or incoordination of movement. During an April 1998 VA neurological examination, the Veteran reported pain and numbness that caused difficulty walking up stairs, raking, and sweeping. There was noted mild to moderate weakness in the quadriceps and anterior tibial muscles on the left, but preserved sensation and reflexes. In December 1998, the Veteran had low back pain down the left buttock and thigh to the knee. There was pain and tenderness on palpation. A January 1999 record noted that the Veteran had a low back condition with three falls in the previous week. X-rays taken in April 1999 revealed the presence of multilevel degenerative disc disease that was worse at L2-3 and L4-5. An MRI taken slightly earlier in February 1999 also showed degenerative changes, as well as the presence of a large right paracentral disc herniation at L3-4 with an extruded fragment which extended halfway up the L3 body. At that time, the Veteran also reported continued pain and stiffness that made it difficult to get up from a chair or the table. There was decreased range of motion with radiation of pain. In April 1999, the Veteran underwent an L3-5 lumbar decompression surgery. Hospital records indicate an uneventful recovery with reported relief of radicular pain. On discharge, the Veteran was instructed to stay out of work and to refrain from lifting objects weighing more than 40 pounds. In June 1999, the Veteran submitted information regarding his employment, claiming to have been employed in insurance sales 40 hours per week from October 1995 to May 1996, with four days missed due to illness; that he worked for the U.S. Post Office 40 hours per week until August 1991, with multiple months off due to illness; and that he worked in real estate from January 1992 to December 1992. The Veteran stated that his back condition was one factor that prevented employment, but also noted lack of experience, lack of teaching certification, and his age. An August 1999 follow-up evaluation revealed post-surgical improvement, but with residual symptoms of lower left extremity weakness, numbness, and paresthesia. The treating physician noted that the Veteran appeared to be doing well except for multiple nonspecific complaints that especially seemed to revolve around lifting, driving, and anything having to do with work. Nonetheless, the treating physician concluded that if x-rays came back okay, then the Veteran "should be completely able to return to work full time at this point." The pending x-rays of the lumbosacral spine revealed normal spine alignment. Based on the foregoing examination and x-ray results, the Veteran was released to return to work subject to lifting limitations of 50 pounds. The Board notes that the Veteran was granted a temporary total evaluation for convalescence, pursuant to 38 C.F.R. § 4.30, from April 28, 1999 to August 1, 1999. In September 1999, the Veteran described his post-operative condition as "Excellent" and he was fully ambulatory. In October 1999, the Veteran sought treatment for left hand problems and a "lump" on his neck. On examination, there was point tenderness and slight pain on forward bending of the spine, but good range of motion. The treatment provider noted the Veteran's prior lumbar decompression in April 1999, which had achieved "good results." Specifically, the Veteran reported much less pain and improved mobility. An April 25, 2000 treatment record noted the return of severe low back pain, with onset two months previously. At that time, the Veteran reported that he was using a wheelchair and a cane to move and was unable to walk long distances. In May 2000, the Veteran underwent secondary posterior lumbar laminectomy and decompression at L2-3, L3-4, and L4-5, and a L3-4 diskectomy and repair of durotomy. A discharge summary from the associated hospitalization indicated that the Veteran had improved following his April 1999 surgery, until he fell out of his truck in about March 2000. In April 2001, the Veteran reported that burning and unbearable pain in the right foot and both legs began in May 2000. In an August 2001 VA neurological examination, the Veteran reported that his current back problems were much worse than when the examiner saw the Veteran four years previously and that he had undergone a repeat surgery in May 2000. In a March 2002 application for TDIU form, the Veteran stated that he worked 40 hours per week until 1993 at the U.S. Post Office, with a lot of time lost from illness. He also reported working in real estate on a short time commission and 40 hours per week with an insurance company from 1995 or 1996 and until 1998 or 1999 when he left due to lumbar decompression with resulting complications. He also stated that in October 1999 he had met with a VA vocational rehabilitation specialist, where he was notified that no further action would be considered until the TDIU claim was resolved. In a May 2003 statement, the Veteran indicated that since the May 2000 surgery he had been forced to use a cane due to falling and dragging the left leg. As previously noted, TDIU was granted for the Veteran, effective April 25, 2000, in the RO's November 2006 rating decision. As a basis for the assigned effective date, the RO observed that records from that time frame showed severe pain which prevented the Veteran from substantially gainful employment. In view of the foregoing medical and treatment history, the Board finds that the evidence does not establish that the Veteran was unable to secure or maintain substantially gainful employment prior to April 25, 2000. In this regard, hospital records show that the Veteran was hospitalized repeatedly for low back pain in the 1970s. Nonetheless, the Veteran was able to maintain ongoing employment with the U.S. Postal Service until 1993. The Board finds it highly significant that the Veteran's more contemporaneous statements clearly indicate that, but for his nonservice-connected leg fracture and fears that this condition would require ongoing treatment, the Veteran would have remained employed at the U.S. Postal Service. In that regard, records documented well prior to his retirement that the Veteran was afforded an accommodation by his employer that switched him to less physically demanding job working in the window. For example, the Veteran reported in January 1992 that he felt much better working in his current position in the window because it did not involve lifting. Moreover, during his October 1993 RO hearing the Veteran stated that prior to his nonservice-connected left leg fracture he was able to lift 40 to 70 pounds by using his knees to take pressure off his back. In addition, during the September 1996 Board hearing the Veteran testified that his retirement was not based on physical disability and that no medical professional had recommended that he retire from the postal service. Instead, he asserted that he was offered early retirement and took it because of his nonservice-connected broken leg and that he was afraid he would miss more work. The Board finds it extremely significant that the Veteran conceded that prior to his retirement, he was losing "very little time" at the job because of the employer accommodation that had switched his job position to one that was less taxing on his back. Thus, the above evidence demonstrates that while the Veteran's early retirement may have been due in part to his service-connected low back disability and residuals, his own contemporaneous and near-contemporaneous statements clearly establish that his retirement from the U.S. Postal Service was due, at least in part, to his nonservice-connected broken leg. Thus, the evidence fails to show that prior to April 25, 2000 the Veteran was unable to work at his final job position at the U.S. Postal Service, or position with comparable physical requirements, due solely to his service-connected disabilities. Instead, the evidence of record demonstrates that a combination of a service-connected low back disability and residuals and a nonservice-connected left lower extremity fracture in combination were the basis for the Veteran's early retirement. As discussed above, multiple statements indicate that prior to the nonservice-connected fracture the Veteran was able to lift and otherwise perform the duties as necessary for his job position with the U.S. Postal Service. Of even greater significance, prior to his nonservice-connected left lower extremity fracture the Veteran reported that he had very little lost time at his job due to his service-connected low back disability and associated residuals. As directed by the Court's September 2012 Memorandum Decision, the Board has considered the Veteran's contentions that he was on "a light duty status" and "in a protective category" prior to his early retirement from the U.S. Postal Service. The Board recognizes that both such contentions as to the Veteran's job status may have been correct at the time of his early retirement. As discussed above, however, the Veteran has explicitly stated that prior to his nonservice-connected injury he missed little time from his job, that he was employed on a full time basis, and that his physical limitations as a result of his service-connected low back disability and residuals had been fully accommodated by switching job positions. These statements demonstrate that prior to his nonservice-connected left lower extremity fracture he was able to follow a substantially gainful occupation in his position with the U.S. Postal Service or another position with similar responsibilities and job duties. In reaching that conclusion, the Board has considered the definition of unemployability outlined in 38 C.F.R. § 4.18 (2012), but finds no evidence to suggest that the Veteran's job duties would fall under the category of a "special consideration" or otherwise fit the definition for unemployability. Instead, the Veteran merely was moved to a job position that would accommodate his lifting restrictions and other difficulties associated with his service-connected low back disability. Following the Veteran's early retirement from the U.S. Postal Service there is conflicting evidence of record as to the duration and extent of his employment activities. The Veteran consistently has reported employment for about one year in real estate, but such employment appears to have been significantly hampered by his service-connected low back disability and residuals. Less clear is the Veteran's employment as an insurance salesman, which the Veteran alternately has reported ranged from about seven months to multiple years. The Veteran's low back and associated problems appear to have affected his ability to perform all his job duties, but on multiple occasions the Veteran has reported working 40 hours per week at the insurance job. Thus, there is conflicting evidence from the Veteran that indicates at a minimum of about seven months of full time employment as an insurance salesman with about four days of missed work during the period, to as much as several years of full time employment in insurance sales. The Board also has considered, as directed by the Court's September 2012 Memorandum Decision, whether the Veteran's employment during the 1990s was marginal in nature. In that regard, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). As discussed above, the Veteran's employment with the U.S. Postal Service was full time and his earnings well exceeded the poverty threshold. Similarly, the Veteran earned $1400 to $1500 per month during his employment as an insurance salesman and earned $2000 per month in commissions as a real estate agent. In each case, the Veteran's earnings also exceeded the established poverty threshold for that time period. As such, the Veteran's employment during the 1990s cannot be considered marginal in nature. In addition, records pertinent to the Veteran's April 1999 lumbar decompression surgery and subsequent follow-up show that he was released to return to work in August 1999, subject to lifting limitations of 50 pounds. The Court's September 2012 Memorandum Decision directed that the Board consider the adequacy of this evidence. The ultimate August 1999 return to work notification was provided by a physician's assistant; however, this notification was provided following evaluation by a physician that took into account the Veteran's subjective complaints and the results of a physical examination. The physician indicated that the Veteran could be returned to work if ordered x-rays came back "ok." As the x-rays showed normal spinal alignment status post decompression laminectomy, the physician's assistant followed the physician's instructions and the Veteran was returned to work. As the return to work notification was provided following consideration of the Veteran's subjective complaints, physical examination, and x-ray evidence, the Board concludes that the evidence of record is adequate for the purpose of concluding that the Veteran was cleared to return to work with the sole limitation of no lifting over 50 pounds. As discussed above, the medical evidence of record between the August 1999 return to work notification and the Veteran's current effective date for the award of entitlement to TDIU, showed significantly improved symptomatology. For example, in an October 1999 treatment record the Veteran reported good results from the surgery, much less pain, and improved mobility as a result of the April 1999 lumbar spine surgery. As such, the Board finds no objective evidence to suggest that the Veteran was unable to maintain gainful employment between the end of his temporary total rating in August 1999 and the effective date of his award of entitlement to TDIU in April 2000. The Board recognizes that the August 1999 return to work notification would not implicate the Veteran's ability to maintain gainful employment prior to the April 1999 laminectomy. The Board also has considered the statements of record from the Veteran contending that he has been unable to secure or maintain substantially gainful employment since 1993 due solely to his service-connected back injury and residuals. The Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as ongoing back pain and problems, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In this case, however, given the complex and interrelated nature of the Veteran's service-connected low back disability and residuals and his nonservice-connected disabilities, including his left lower extremity fracture and residuals, the Board concludes that the lay assertions that prior to April 25, 2000 he was unable to secure or maintain substantially gainful employment falls outside the realm of common knowledge of a lay person and is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). That said, the Board has considered the Veteran's reports of low back problems that caused pain, weakness, falls, loss of motion, difficulties with extended sitting or standing, and problems lifting. While these certainly are serious symptoms, the record reflects that these are the type of symptoms experienced while the Veteran was adequately performing his job duties for the U.S. Postal Service prior to his nonservice-connected left lower extremity fracture. As such, there is no evidence of record that the Veteran's reported symptoms were non-conducive to his job responsibilities at the U.S. Postal Service prior to 1993 or to any job position with similar physical requirements and responsibilities that would permit the Veteran to stand and sit as necessary. The Board acknowledges the Veteran's contentions that information recorded in VA examination reports was wrong. For example, the Veteran contends that the February 1997 VA examination report included multiple incorrect facts. Specifically, the Veteran disputes the report's contention that he was at "maximum disability" at the time of examination because the Veteran reported that his back was aggravated by weather conditions and riding in automobiles and the day was rainy and he had ridden to the examination. The Veteran contended that there was no rain on the day of the examination and that his back symptoms often were worse than on the day of examination. As the Board does not find the VA examination reports to be the most probative evidence of record, in contrast to the Veteran's more contemporaneous lay statements and medical treatment records, and its decision does not substantively rely on the findings of the VA examinations of record, the Board concludes that any such errors in VA examination reports have no prejudicial effect on the decision reached herein. Finally, the Board observes that the provisions of 38 C.F.R. § 4.16(b), which provide for referral to the Director of the Compensation and Pension Service for consideration of TDIU on an extra-schedular basis, is inapplicable in this case. As noted previously, the RO's April 2005 rating decision effectuating the Board's prior grant of a 60 percent disability rating for the Veteran's low back disorder, provided for an effective date of July 29, 1992, which is the same day on which the Veteran's claims for an increased rating and for TDIU were filed. Accordingly, for all times relevant to the issue of the Veteran's claim for an earlier effective date for TDIU, the Veteran has met the regulatory criteria for TDIU consideration under 38 C.F.R. § 4.16(a). As such, the Veteran's claim may not be reviewed on an extra-schedular basis under 38 C.F.R. § 4.16(b). In view of the foregoing evidence and analysis, the Veteran is not entitled to an effective date earlier than April 25, 2000 for TDIU. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim for an earlier effective date for TDIU. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date earlier than April 25, 2000, for an award of TDIU is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs