Citation Nr: 1322991 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 06-21 479A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to September 23, 2002, for an award of a total rating based on individual unemployability (TDIU), to include consideration on an extra-schedular basis. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from December 1957 to November 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in November 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that effectuated the Board's granted of a TDIU. The award was made effective from December 22, 2004. The Veteran disagreed with the assigned effective date. In January 2008, the RO issued a supplemental rating decision that established an effective date of September 23, 2002. The Veteran continued to express disagreement with this date and perfected his appeal with the timely submission of his substantive appeal in March 2008. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to September 23, 2002, the Veteran's combined disability evaluation was 50 percent, with all disabilities arising from a common etiology. 2. Prior to September 23, 2002, the Veteran's service-connected disabilities were not sufficient by themselves to preclude all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for an effective date prior to September 23, 2002, for the award of TDIU have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.341, 3.400(o), 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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). The Veteran has appealed the effective date assigned following the grant of TDIU. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted (i.e., TDIU), further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Moreover, the Veteran's communications clearly convey that he is cognizant of the type of evidence needed to establish his claim as well as what is required of him and of VA. The Veteran has been represented by an attorney in this matter. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) [holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"]. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The outcome of the Veteran's earlier effective date claim rests with evidence which is already in the claims folder, which will be discussed below. There is no suggestion in the record or in communications from the Veteran or his attorney that any additional relevant evidence exists. General due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded ample opportunity to present evidence and argument on this matter. His failure to appear for a scheduled video teleconference with a Veterans Law Judge, and his subsequent failure to reschedule, is being treated as a withdrawal. See 38 C.F.R. § 20.704(d) (2012). In short, the Board believes that the issue on appeal was properly developed for appellate purposes. Further development would be a useless exercise. The Board will proceed to a decision on the merits. II. Factual Background Service connection for compression fracture of fourth thoracic vertebra with residuals of lumbar strain was granted in February 1960. A percent disability rating was assigned under Diagnostic Code 5285, residuals of a fractured vertebra. A January 1980 hearing transcript notes that the Veteran was employed full time as a surveyor. The Veteran described an incident when he was baling hay and had to crawl under his tractor to make an adjustment. He had sudden onset of back pain, but managed to crawl out from under the tractor and finish baling the hay. He needed help to get off the tractor at the end of the day, and it took three weeks for his back pain to resolve. The Veteran also reported that carrying his 20 pound surveying instruments, as well as bending to see through the instruments, sometimes caused back strain. On VA examination in March 1980, the Veteran complained of back pain, especially when lifting, and some left leg numbness. The Veteran was able to reach to within 10 inches of the floor and walk without difficulty. There were no spasms or tenderness. Range of motion of the thoracic spine was full and free without any signs of pain. The Veteran was able to walk on his toes and heels and could easily fully squat. Straight leg raising was normal. In a March 1980 rating decision, the Veteran was awarded a 20 percent rating for his service-connected residuals of a compression fracture of fourth thoracic vertebra, effective May 21, 1979. The increase was based on the Veteran experiencing limitation of motion of the dorsal spine along with there being a deformity of the vertebral body. In a January 1981 decision, the Board denied entitlement to an increased rating for that disability. Private hospital records dated in June 1989 detailed that the Veteran suffered from a herniated left L4-5 disc and underwent a hemilaminectomy of L4-5 as well as laminotomy of right L5-S1 with negative exploration. Additional records dated in July 1989 detailed that the Veteran underwent a quadruple bypass graft secondary to coronary artery disease in 1982. In a statement dated August 17, 1989, the Veteran indicated that he would like his thoracic spine disability to be re-evaluated for "more compensation." The RO issued a rating action in August 1989 that continued the 20 percent rating that was assigned for residuals of a compression fracture of fourth thoracic vertebra. Thereafter, by a rating action dated in December 1989, the determined that the Veteran's degenerative disc disease of the lumbar spine with an associated herniated nucleus pulposus was not related to his service connected back disability During a RO hearing on May 24, 1990, the Veteran testified that he sometimes used a cane, did no lifting or work around the house, had muscle spasms in his back, wore a corset-type back brace, had difficulty driving because of neck problems, and required assistance when dressing. He reported that he had not been employed since 1982 due to medical complications. The Veteran testified that he underwent heart surgery in 1982, which was also the last year in which had worked. Transcript at p. 6. He said his last full time employment was as a foreman in construction. Regarding his back, he detailed that his service-connected disability created problems on the job by limiting the positions he could get into and the types of jobs he would pick. He further reported missing a lot of work in the construction industry and that his back disability was among the reasons he had not worked since 1982. The Veteran also stated that he could not do any household maintenance, left objects, or cut the grass. He also had problems driving. In an August 1990 RO Hearing Officer's Decision, the 20 percent evaluation was continued for the Veteran's service-connected spine residuals. It was noted that the Veteran last worked in 1982 as a construction foreman and was not working due to various medical complications, including heart disability and residuals of lumbar disk surgery. The Hearing Officer also noted that there was no medical evidence of any increase in the severity of the Veteran's service-connected thoracic spine disability. Following an administrative review, the RO issued a decision in July 1991 wherein it continued the assignment of a 20 percent evaluation for Veteran's service-connected thoracic spine residuals, which was rated under DC 5285. The RO also bifurcated and assigned a separate noncompensable evaluation for service-connected lumbosacral strain under DC 5295, Lumbosacral strain. It was noted that evidence of record showed that the Veteran had worked as a construction worker since discharge from service. He had a history of an intercurrent lower back injury in June 1979 while working on a hay baler, which resulted in his herniated disk of the lumbosacral spine. In May 1994, the Board remanded the matters of entitlement to service connection for degenerative disc disease of the lumbar spine with postoperative residuals, entitlement to a rating in excess of 20 percent for residuals of compression fracture of the fourth dorsal vertebrae, and entitlement to a compensable rating for lumbosacral strain. June 1994 VA examination reports note the Veteran's complaints of "intermittent" back pain with "minimal" radiation to the left lower extremity. The Veteran denied numbness, tingling and weakness. Station, gait and coordination were normal. September 1994 VA examination reports note the Veteran's complaints of worsening symptoms with pain radiating to both lower extremities. On examination, he had good twisting motion and was able to walk on his toes. The Veteran stated that he lost his balance when trying to walk on his heels. Strength was 5/5 in the extremities. Straight leg raising was negative. There was some difficulty bending the knees due to spasm. In a November 1994 rating decision, the RO determined that the Veteran's degenerative disc disease of the lumbar spine was essentially caused or apart of his service connected lumbosacral strain residuals and granted service connection for the same. A 20 percent rating for the Veteran's service-connected lumbosacral strain residuals, to include disk herniation at L4-5 and L5-S1, was assigned under DC 5293, Intervertebral disc syndrome, effective August 17, 1989. The RO also denied entitlement to service connection for degenerative changes of the cervical spine. In a March 1996 decision, the Board denied entitlement to an evaluation in excess of 20 percent for residuals of compression fracture of the fourth dorsal vertebra. The Board remanded the claims of entitlement to service connection for a chronic cervical spine disorder and entitlement to a disability rating in excess of 20 percent for lumbosacral strain with post operative residuals of disk herniation at L4-5 and L5-S1. A May 1996 VA neurologic examination report notes the Veteran's complaints of severe back pain at all times, with radiation to both extremities, left greater than right. He was able to walk on his toes. He was not able to walk on his heels due to pain. His gait was normal. Sensory abnormalities were noted in the left lower extremity. A June 1996 VA orthopedic examination report notes findings of markedly decreased range of motion due to pain. EMG studies showed no acute denervation. MRI studies revealed moderate degenerative changes. In a September 1996 opinion, the Veteran's private orthopedic physician opined that back surgery was not warranted on the face of the Veteran's complaints and his "significant cardiovascular problems." Reference was made to the Veteran's a history of severe heart problems and coronary bypass of several vessels. He was described as having more circulation problems. A laser procedure to the heart was being discussed. The Veteran appealed the Board's March 1996 denial of an increased rating. In a January 1997 Order, the Court dismissed the appeal, finding that the Board's decision on the Veteran's claim for entitlement to an evaluation in excess of 20 percent for residuals of compression fracture of the fourth dorsal vertebra was not a final order subject to appeal because that claim was inextricably intertwined with the remanded claims that remained undecided by and pending before the Secretary. In a December 1997 rating decision, the RO assigned a 40 percent rating for the Veteran's service-connected lumbosacral strain residuals, to include disk herniation at L4-5 and L5-S1, effective August 17, 1989. The RO also again denied entitlement to service connection for chronic cervical spine disorder. In an August 1998 decision, the Board denied entitlement to service connection for a chronic cervical spine disorder and entitlement to an increased rating for lumbosacral strain with postoperative residuals of disc herniation at L4-5 and L5-S1, currently evaluated as 40 percent disabling. Additional private treatment notes dated in 1999 and 2000 show that the Veteran was treated for an abdominal aortic aneurysm as well as underwent a re-do bypass operation in 1999. The records show ongoing treatment for severe coronary disease. The Veteran appealed the August 1998 decision to the Court. In a March 2001 Order, the Court vacated the appeal, remanding the claims for readjudication under the VCAA. In an October 2001 statement, H. G., D. C., indicated that the Veteran was being treated for neck pain, upper back pain, and headaches. He reported that the Veteran would need several treatments per month for the rest of his life to remain functional. In February 2002, the Board remanded the matters of entitlement to service connection for a chronic cervical spine disorder and entitlement to an increased rating for lumbosacral strain with postoperative residuals of disc herniation at L4-5 and L5-S1, currently evaluated as 40 percent disabling. In a July 2003 decision, the Board denied entitlement to service connection for a chronic cervical spine disorder and entitlement to an increased rating for lumbosacral strain with postoperative residuals of disc herniation at L4-5 and L5-S1, currently evaluated as 40 percent disabling. The Veteran appealed the Board's decision to the Court. In an October 2003 Joint Motion for Remand, it was noted that the Board failed to ensure that the requirements of 38 U.S.C.A. § 5103(a) were met. In an October 2003 Order, the Court vacated the Board's July 2003 decision and remanded the matters for readjudication in light of the Joint Motion. Thereafter, on June 15, 2004, the RO received a claim for entitlement to TDIU along with a private medical opinion from C. N. B., M. D. In his June 2004 opinion, the private physician opined that the Veteran has been unable to obtain or maintain employment due to his service-connected spine disabilities since 1982. He indicated that during that year the Veteran had sciatica and back pains and was unable to obtain or maintain gainful employment because of his spine disabilities. It was further noted that his medical opinion was based on the history provided during his interview of the Veteran in June 2004 as well as the Veteran's May 1990 hearing testimony that he was unable to obtain employment since 1982. There is no indication that he examined the Veteran. In July 2004, the Board remanded the matters of entitlement to service connection for a chronic cervical spine disorder and entitlement to an increased rating for lumbosacral strain with postoperative residuals of disc herniation at L4-5 and L5-S1, currently evaluated as 40 percent disabling. In a November 2004 VA examination report, a VA physician opined that the Veteran was not employable in an occupation that would require lifting more than 15 pounds or a job that would require repetitive bending over at the lumbosacral spine or thoracic spine. He felt the Veteran could possibly entertain sedentary employment only. In a December 2004 rating decision, the RO awarded the Veteran separate 10 percent ratings for chronic L5 radiculopathy of the right and left lower extremities associated with his service-connected lumbosacral strain residuals, each effective September 23, 2002 (the effective date of the amended spine regulations). Records from SSA were associated with the file in December 2004. Notably, an April 1984 SSA disability determination report listed a primary diagnosis of coronary arteriosclerosis, indicating that the disability began in September 1982. It was noted that the Veteran had a high school education and also learned to read blue prints in trade school. He had a vocational background as a millwright (30 years) and machinery manufacturing. The Veteran reported that his work as a millwright required heavy physical exertion, which he was unable to continue after September 1982 because of a severe heart impairment. He had heart surgery in October 1982 but continued to have shortness of breath and chest pain requiring Nitroglycerin thereafter. The SSA Administrative Law Judge noted that the Veteran's rehabilitation had been hampered by an August 1983 accident that necessitated extensive right hand surgery. Records associated with the SSA decision include a report from I.P.W. MD.. Dated in October 1983, Dr. W. described the Veteran's history of severe coronary artery disease with unstable angina, and that he continued to experience angina with tachyarrhythmia despite undergoing a quadruple bypass graft. Reference was also made to a 1983 farming accident that resulted in the Veteran fracturing his right clavicle and sustaining multiple injuries to his right hand. He was also noted to suffer from interstitial lung disease. Dr. W. thereby concluded that the Veteran was totally and permanently disabled by his severe coronary artery disease along with the multiple injuries to his right upper extremity and interstitial lung disease. A February 2005 VA examination report, executed by a VA physician's assistant and signed by the VA physician, lists diagnoses of left hip condition, T5 compression fracture, moderate degenerative disc disease of the cervical spine, status post lumbar spine surgery with degenerative disc disease, spondylosis, and chronic bilateral lower extremity L5 radiculopathy with limited range of motion, hypertension, coronary artery disease status post coronary artery grafting, abdominal aortic aneurysm, and diabetes mellitus. It was noted that the Veteran's service-connected conditions would not preclude employment in a sedentary job. The examiner indicated that the Veteran was unable to work in a position that would require physical labor, in part due to his arthritis and heart disease as well as due to his advanced age. During an October 2005 hearing for the issues of entitlement to increased ratings and entitlement to a TDIU rating, the Veteran reported that he had not worked since 1982 and had been treated consistently for his service-connected lumbar and thoracic spine disabilities since 1989. Dr. C. N. B. was also present and provided testimony on the Veteran's behalf. He reported that he had had the opportunity to review the Veteran's file on two occasions, to include the adverse VA medical opinions of record. He questioned the probative value of the February 2005 VA examination report because it was performed by a physician assistant and only reviewed/co-signed by a physician. He also initially testified that he disagreed that the Veteran was capable of sedentary because he also experienced diminished hand function. Transcript at p. 14, 18. However, at the prompting of the Veteran's attorney, Dr. C.N.B. changed his position and stated the Veteran would be incapable of sedentary employment due to his low back disability alone and without regard to his cervical spine disorder and residuals related thereto. Transcript at p. 18. Similarly, while he acknowledged the Veteran's extensive history of heart disease, which extended back to 1982, he stated that his opinion on employability was limited to the Veteran's orthopedic complaints/disabilities. In a March 2006 decision, the Board denied entitlement to service connection for a chronic cervical spine disorder, entitlement to increased ratings for lumbosacral strain as well as radiculopathy of the right and left lower extremity, and granted entitlement to a TDIU rating. The Board remanded the issue of entitlement to an effective date prior to September 23, 2002, for the separate evaluations for radiculopathy of the lower extremities. In a November 2006 VA Form 21-8940, the Veteran indicated that he became too disabled to work as of 1982 because of his back disability. He indicated that he completed high school as well as trade school for welding and drafting. In a November 2006 rating decision, the RO effectuated the grant of a TDIU with an interim effective from December 22, 2004. The Veteran disagreed with the assigned effective date. Subsequently, in January 2008, the RO issued a supplemental rating decision that established an effective date of September 23, 2002. It was noted that September 23, 2002, was the first date that the Veteran was found to meet the scheduler requirements for consideration of entitlement to a TDIU rating. The Veteran continued to express disagreement with effective date assigned for his TDIU rating. He perfected his appeal with the timely submission of his substantive appeal in March 2008. In a September 2008 statement, a private physician, I. P. W., M. D., indicated that the Veteran had been treated for his back pain since 1982 and continued to suffer from chronic back pain and chronic lumbar radiculopathy up to the present time. He also had a history of coronary artery disease, status post quadruple bypass. In an April 2009 decision, the Board denied the Veteran's claim for an earlier effective date for the award of 10 percent ratings for radiculopathy of the lower extremities as well as the award for TDIU. He appealed the Board's decision to the Court. In November 2009, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary "because the Board did not provide an adequate statement of the reasons or bases regarding its statement that there were no communications before June 2004 that 'expressly or impliedly raised the issue of TDIU' in light of the statements that [the Veteran] made at the May 24, 1990 hearing." See the November 2009 Joint Motion at page 4. The parties also agreed that the Veteran had abandoned his appeal of the Board's denial of an effective date earlier than September 23, 2002, for the award of separate 10 percent ratings for radiculopathy of the lower extremities. In a December 2009 order, the Court vacated the Board's April 2009 decision and remanded the matter for readjudication in light of the Joint Motion. In a March 2010 decision, the Board denied the Veteran's claim for an earlier effective date. The Board found that the Veteran had filed an informal claim of entitlement to TDIU on May 24, 1990. The Board further determined that the Veteran's May 1990 TDIU claim was final, as it was implicitly denied in the Hearing Officer's May 1990 decision and the RO's July 1991 rating decision. The Veteran appealed to the Court. In July 2010, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion wherein the parties agreed that the Board administratively erred in its determination that the May 1990 informal TDIU claim was denied as a separate claim and subsequently became final. The parties agreed that the record shows that the Veteran continued his appeal for claims of increased disability ratings since the August 1990 and July 1991 decisions. The parties further agreed that entitlement to a TDIU rating was raised by the record prior to September 23, 2002. See the July 2010 Joint Motion at pages 3-4. In an August 2010 order, the Court vacated the Board's March 2010 decision and remanded the matter for readjudication in light of the Joint Motion. This matter was before the Board in April 2011 when it was remanded in order to submit the Veteran's claim to the Director of VA's Compensation and Pension Service (Director) for extra-schedular consideration. In June 2011 the Director reviewed the Veteran's claims file and denied entitlement to TDIU on an extra-schedular basis for the period prior to September 23, 2002. III. Relevant Law and Regulations Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). A 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). The general rule is that the effective date of such an award "shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012). Date of receipt means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) (2012). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, 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) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). In all other cases, the effective date will be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1) (2012); VAOPGCPREC 12-98, 63 Fed. Reg. 56,703 (Oct. 22, 1998). In determining an effective date for an award of a TDIU, VA must make two essential determinations. It must determine (1) when a claim for TDIU was received, and (2) when a factually ascertainable increase in disability occurred so as to warrant entitlement to TDIU. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2012). With regard to the second of the aforementioned determinations (when a factually ascertainable increase in disability occurred so as to warrant entitlement to TDIU), the Board notes that TDIU may be awarded, where a veteran's scheduler rating is less than total, if evidence is received to show that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16 (2012). Normally, consideration is given to such an award only if the veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16(a) (2012). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. 38 C.F.R. § 4.16(b) (2012). Rather, "[i]t is the established policy of [VA] that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-scheduler consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b) (2012); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. Id. In order to be awarded TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Once a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Further, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Analysis The Veteran is currently in receipt of a TDIU rating effective September 23, 2002. Under the Court's reasoning in Rice, the inferred claim for a TDIU rating is considered part of the Veteran's August 1989 claim for an increased rating for his service-connected thoracic spine disability. Therefore, even though the Veteran's formal claim for a TDIU rating was not received by VA until many years later in November 2006, an informal claim for a TDIU was received on August 17, 1989, the date the claim for an increased rating for a thoracic spine disability was received. Review of the claims file shows that the August 17, 1989, informal claim is the earliest pending TDIU claim of record. However, it was not until September 23, 2002, that the Veteran met the schedular requirements assigning a TDIU under 38 C.F.R. § 4.16(a). Specifically, when he awarded separate 10 percent ratings for radiculopathy of the lower extremities, his service connected musculoskeletal disabilities of the spine combined to meet the 60 percent schedular threshold for this award. Prior to September 23, 2002 the Veteran's combined disability rating, even when considering his disabilities as stemming from a common etiology, only amounted to a 50 percent rating. The criteria for the assignment of a TDIU under 38 C.F.R. § 4.16(a) were not met. Consequently, the only remaining question in this case is whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extra-schedular evaluation under 38 C.F.R. § 4.16(b) during the time period prior to September 23, 2002. Because the Board itself cannot assign an extra-schedular rating in the first instance, it remanded this issue for referral to the Director. In June 2011 the Director reviewed the Veteran's claims file and denied entitlement to TDIU on an extra-schedular basis for the period prior to September 23, 2002. Reference was made to the Veteran's repeated assertions that Veteran had stopped working in 1982 because of disabilities including his back disability. Consideration was also given to the opinions of Dr. C. N. B., who found that the Veteran was unemployable because of his back problems alone. However, the Director highlighted the decision and records received from the SSA, which had essentially determined that the Veteran's unemployability was due to his non-service connected coronary artery disease. The Director ultimately determined that the evidence of record did not show that the Veteran is unable to secure or follow a substantially gainful occupation solely because of his service-connected disabilities. The Board agrees. As detailed above, the Veteran has not worked since 1982. The Board acknowledges the statements from the Veteran (as noted above) that he was unable to continue working, at least in part, due to his back pain. Te evidence for the relevant period prior to September 23, 2002, clearly showed the Veteran's complaints of back pain with radiation, but never showed findings so severe as to warrant the maximum ratings for these disabilities. Ankylosis of the thoracolumbar spine was not demonstrated. Intervertebral disc syndrome with little intermittent relief was not shown. Moreover, as highlighted above, the record clearly shows that the Veteran was severely disabled due to his nonservice-connected heart problems. In fact, the Veteran has testified both to the Board and the SSA that he initially stopped working following a 1982 quadruple bypass graft surgery, which left him with shortness of breath and chest pain that required Nitroglycerin for relief. He consistently pointed to both his heart and back disabilities as the cause of his inability to work until November 2006, when he submitted a formal claim for TDIU and stated that he became too disabled to work as of 1982 solely because of his service-connected back disability. Moreover, the November 2004 and February 2005 VA examiners suggested that even at that time, years beyond the period under consideration here, the Veteran would not be prevented from some sedentary (non-strenuous) occupations. The examiners reviewed the claims files and thoroughly examined the Veteran before rendering the opinions. In this regard, the evidence shows that the Veteran went to trade school for drafting and had experience reading blue prints. It is true that the February 2005 VA examination was performed by a physician assistant. However, other than the protest made by Dr. C.N.B., there is nothing in the record to suggest that the examiner lacked the competence to perform the physical examination and render an opinion on employability. A review of the examination report also shows that a VA physician reviewed and co-signed the February 2005 report. In this regard, to the extent it was argued that the 2005 report should carry lesser probative value because the VA physician only reviewed the record and co-signed the report, the Board emphasizes that the guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, while it is clear that the Veteran's service-connected spine disabilities may have affected him in an occupational setting prior to September 23, 2002, the record does not support a finding that his service-connected disabilities precluded him from maintaining all forms of substantial and gainful employment consistent with his education and occupational background. The Board acknowledges that the Veteran is competent to report symptoms of his lumbar spine disability and their effect on his activities. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code and whether the symptoms of that disability preclude employment. Such competent evidence concerning the nature and extent of the Veteran's service-connected lumbar spine disability has been provided by VA medical professionals who have examined him. The medical findings directly address the question of whether the Veteran is unemployable due to his service connected lumbar spine disability alone. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Moreover, the Veteran's assertions of being unemployable due to his back disability alone are not found to be credible. Again, prior to filing a formal claim for TDIU in 2006, he consistently pointed to both his heart and back disabilities as the cause of his inability to work. Such was stated at his May 1990 personal hearing as well as when he presented his claim for disability benefits before the SSA. Indeed, the decision from the SSA specifically noted that the Veteran's claim focused on his assertion that his heart disability prevented him from working. He only began to relate his unemployability solely to his lumbar spine disability when his claim for benefits was filed. Pond v. West, 12 Vet. App. 341 (1991) (interest may affect the credibility of testimony). The opinions and testimony of Dr. C. N. B. have been duly considered. However, they are flawed and thereby carry less weight to the negative VA opinions of records. Specifically, unlike the VA examiners, Dr. C.N.B. did not physically examine the Veteran. He also failed to address very pertinent evidence of record such the Veteran's heart disability, interstitial lung disease, and multiple traumas of the right upper extremity, which multiple VA and non-VA physicians have attributed to the Veteran's unemployability. Next, Dr. C.N.B. initially stated that the Veteran was incapable of sedentary employment due dysfunction of the hands/cervical spine. He testified twice to this finding. He stated that the Veteran's service connected lumbar spine alone precluded employment only after he was prompted and directed by the Veteran's attorney. Finally, to the extent Dr. C.N.B.'s positive opinion was based on his interview with the Veteran, the Board notes that the Veteran's credibility has been called into question. Such would further reduce the probative value of the Dr. C.N.B.'s opinion and testimony. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on veteran's statement renders a medical report incredible only if the Board rejects the statement of the veteran). Consideration has been given the Veteran's assertion that the June 2011 "extra-schedular evaluation" from the Director is inadequate because it was based on an inaccurate factual premise. He contended that the "extra-schedular evaluation" only addressed three pieces of evidence along with the SSA decision, which resulted in the Director making an opinion on "his own unsubstantiated medical opinion." The Board does not agree. The referral of an extra-schedular evaluation to the Director is a necessary step that must be taken by VA prior to allowing the Board to assign an extra-schedular rating in the first instance. The decision from the Director is just that. It is an adjudication. It is not an evaluation or a medical opinion. There is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also 38 U.S.C.A. §§ 511(a) , 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). Put another way, the adjudication of the Director on an extra-schedular evaluation question is akin to a rating decision from the RO. The fact that the decision may or may not have been made in a piecemeal fashion has little influence on the Board's review of the appeal. Once a decision is made, and after the proper procedural requirements have been met, the Board is at liberty to make a de novo consideration of the issue, which it has done in the present case, and is by no means bound to that earlier decision. In light of the foregoing, and after reviewing all of the relevant evidence of record, the Board concludes that the preponderance of evidence is against a finding that the Veteran was unable to secure and maintain substantially gainful employment prior to September 23, 2002, due solely to disabilities for which service connection had been established. ORDER Entitlement to an effective date earlier than September 23, 2002, for an award of a TDIU, to include consideration on an extra-schedular basis, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs