Citation Nr: 1330233 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 07-32 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 20 percent for chronic low back strain (back condition), to include a rating in excess of 10 percent prior to October 2010. 2. Entitlement to total disability due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1968 to June 1971. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. These issues were previously before the Board in July 2010 and were remanded for further development. Specifically, the Board requested the Veteran's records from the Social Security Administration (SSA) be obtained and an updated VA examination be provided. The Board finds both of these requested actions were completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The evidence does not establish the Veteran had forward flexion of the spine between 30 and 60 degrees or combined range of motion of the thoracolumbar spine limited to 120 degrees or less at any point prior to October 2010. 2. The evidence does not establish the Veteran had forward flexion of the spine limited to 30 degrees or less or ankylosis of the spine at any point during the period on appeal. 3. The Veteran's only service-connected disability is his back condition. 4. The evidence does not establish the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected back condition. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent, to include a rating in excess of 10 percent prior to October 2010, for the Veteran's back condition have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, and 4.71a Diagnostic Code 5237 (2012). 2. The criteria for a total disability rating based on individual unemployment have not been met at this time. 38 U.S.C.A. §§ 501, 1155 (West 2002); 38 C.F.R. § 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking an increased rating for his service-connected back condition. His condition was initially assigned a 10 percent rating in an August 2006 rating decision based on limitation of motion. During the course of this appeal his rating was increased to 20 percent effective October 13, 2010. The Veteran's back condition is currently rated under Diagnostic Code 5237 for lumbosacral or cervical strain. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a back condition when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when there is unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The Veteran filed his claim in November 2005. Throughout the period on appeal the Veteran has consistently asserted that due to his severe back pain he is unable to work and should be afforded a much higher disability rating. As a lay person the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing pain in his back. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise required to measure the severity of his back condition. As such, the Board has considered the Veteran's lay statements regarding his severe, ongoing pain in his back, but will also look to medical evidence in order to evaluate the severity of the Veteran's back condition. All evidence of record has been reviewed and considered, and relevant evidence is summarized below. The Board will first discuss whether the Veteran is entitled to a rating in excess of 10 percent based on limitation of motion prior to October 2010, second a rating in excess of 20 percent after October 2010, and then finally whether the Veteran is entitled to an increased rating for his back condition under any other applicable diagnostic code. Limitation of Movement before October 2010 Initially the Board notes the Veteran was determined to be disabled by the Social Security Administration (SSA) effective July 2005. The primary diagnosis was disorders of the back and secondary diagnosis was "musculoskeletal/connective tissue injuries." An August 2006 case analysis by a physician also noted the Veteran's arterial fibulation, alcoholism, and malnutrition, nonservice connected problems that it is important for the Veteran to understand can not be used to provide a basis to grant the Veteran more VA compensation. An April 2006 physical residual functional capacity assessment indicated that considering all his conditions the Veteran could still occasionally lift or carry 10 pounds, frequently lift less than 10 pounds, stand for at least 2 hours, and sit for about 6 hours. Therefore, while the SSA found the Veteran had a disorder of the back, evidence from the SSA suggests he was still able to perform some work activities. Additionally, the Board notes that SSA disability determinations are not binding on the VA. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Therefore the Board will turn to the additional evidence of record. In November 2005 the Veteran's physician submitted a letter to the VA indicating that the Veteran was diagnosed with agoraphobia, atrial fibrillation, and "ChBP." The physician opined the Veteran had no ability to work. However, the Board notes this letter does not refer to the Veteran's service-connected back condition. Therefore the Board finds this letter is not probative to the issue on appeal. In February 2006 the Veteran was provided with a VA examination. The Veteran stated he was no longer employed because "my back was too bad." The Veteran stated he treated his back pain with medication, cortisone injections, and an elasticized Velcro back support. The Veteran described his pain as a constant "feeling of stiffness," particularly in the early morning. He denied any recent chiropractic or physical therapy treatment, instead explaining he has "learned to live with it." The Veteran described difficulties bending over to pick up items or wash the dishes. The Veteran stated he could not stand in one position for more than ten minutes. He denied any radiation of pain into his lower extremities. Upon examination the examiner noted the Veteran was six feet tall and weighed only 120 pounds and appeared "severely emaciated" and "markedly deconditioned." The examiner noted the Veteran's spine was "well aligned" with no scoliosis or lateral curvature. The Veteran did have "mild lumbar lordosis." The examiner reviewed an x-ray of the Veteran's spine from September 2005 which showed narrowing of the L5-S1 interspace and mild arthritic spurring in the lumbosacral joint. Range of motion testing was conducted. The Veteran had forward flexion from "complete upright posture" to 70 degrees and extension of 10 degrees. Lateral flexion was 15 degrees to the left and 20 degrees to the right. Lateral rotation of the trunk was 40 degrees to both the left and right. Repetitive use testing resulted in "complaints of increasing discomfort and increasing fatigue." Straight leg raise was normal bilaterally. The examiner opined the Veteran had "moderate lumbosacral degenerative disc disease" and "chronic lumbar spondylosis," as well as "chronic malnutrition and generalized physical deconditioning", providing evidence against this claim. The Board finds the results from this range of motion testing reflects the Veteran's condition only merited a 10 percent rating at that time. Forward flexion was to 70 degrees, within the range of 60 to 85 degrees contemplated by a 10 percent rating. An increased rating of 20 percent is not warranted until forward flexion is less than 60 degrees. Additionally, the combined range of motion of the spine was 205 degrees, well in excess of the 120 degrees contemplated by a 20 percent rating. As such, the Board finds a 10 percent rating for limitation of motion was appropriate at that time. In January 2007 the Veteran sought treatment at a VA facility complaining of increased pain in his back. In June 2007 the Veteran called the VA facility and requested oxycodone for his back pain because the morphine wasn't helping. The healthcare provider noted the Veteran's "long standing narcotics issues" and suggested the Veteran take Motrin or Tylenol for his pain. The Board notes this record raises some question of the accuracy of the Veteran's description of his own level of pain. In October 2007 a CT scan was taken of the Veteran's lumbar spine. The radiologist noted vertebrae as well as interspaces were normally preserved and opined "negative CT examination," providing evidence against the Veteran's claim. In November 2007 the Veteran's friend for over twenty years, D.L., wrote a letter regarding her observations of the Veteran's back pain. D.L. stated that "over the years" the Veteran began to experience pain in his back and now there are only a few things he can do due to his pain, such as watch TV. D.L. also stated the Veteran had lost too much weight but the "excruciating pain" caused the Veteran to be nauseous. That same month the Veteran's brother and partner each submitted written letters noting their observations of the Veteran's increased pain and decreased activities through the years. Like the Veteran, the Board notes that as lay individuals the Veteran's friend, bother, and partner are each competent to report what comes to them through their senses, such as observing the Veteran's increased pain and subsequent reduction in activities. However, these individuals lack the medical training and expertise required to evaluate the severity of the Veteran's back condition. In March 2008 the Veteran was provided another VA examination to evaluate his peripheral nerves. The Veteran reported no problem with his hands or feet except for an "occasional cramp" in his legs. The examiner noted senses and nerves were intact and gait was normal. Veteran was able to bend to within 5 degrees of the floor. Straight leg raise was negative. The examiner opined the Veteran had lumbar strain and ruled out stiff man syndrome. The examiner noted the Veteran had decreased vibration in his toe which could be an early neuropathy. The examiner opined this may account for his restless leg syndrome which the Veteran took medication to treat. November 2009 an x-ray was conducted of the Veteran's lumbar spine. An old compression fracture was noted at the L2 vertebrae, as well as "minimal" degenerative changes of the facet joints. Vertebrae were otherwise normal height and alignment. The reviewing care provider opined no significant change from the previous scan in August 2008, providing additional evidence against the Veteran's claim. In May 2010 the Veteran testified at a hearing before the undersigned VLJ. The Veteran reported he took medication for seizures. He described when he experienced a seizure his "back goes out completely" and his legs "go out from underneath" him. The Veteran stated the pain did not radiate down his legs, but instead radiated from the bottom of his spine up to the base of the neck. The Veteran described the pain as a burning sensation. The Veteran described he couldn't move quickly, couldn't lift anything strenuous, and couldn't stand for any prolonged length of time. The Veteran reported he wore a back brace around the house which was prescribed by the VA. The Veteran reported that at home his back had confined him to bed for one to two days at most during the last 30 day period. The Veteran stated he had never been confined to bed in the hospital. The Veteran reported he had to take an early retirement because he "couldn't work anymore because of my back." He stopped working in approximately 2005. Based on the foregoing, the Board finds the evidence of record suggests the Veteran had ongoing, pain in his back. However, the results from the range of motion testing during his period reflected the Veteran's back condition only warranted a 10 percent rating for limitation of motion of his spine through this time period. The record does not contain additional medical evidence suggesting greater limitation of motion during this time. As such, the Board finds a 10 percent schedular rating for limitation of motion was appropriate before October 2010, but no more. Limitation of Movement after October 2010 In October 2010 the Veteran was provided with an additional VA examination for his back. The Veteran reported a constant, mild, dull ache in his lower back that occurred daily. The Veteran denied any radiation of the pain. The examiner noted the Veteran was able to walk more than 1/4 of a mile but less than one mile. No abnormal spinal curvature was noted. Range of motion testing was conducted. Flexion was 0 to 50 degrees and extension was 0 to 15 degrees. Left lateral flexion was 0 to 15 degrees, right lateral flexion was 0 to 10 degrees. Left lateral rotation was 0 to 15 degrees, right lateral rotation was 0 to 15 degrees. Repetitive motion testing was also conducted but no additional objective evidence of pain or additional limitations of motion were noted. Reflexes, motor strength, and nerves were all normal. The examiner opined the Veteran had lumbosacral strain with associated difficulty bending and reaching, as well as decreased mobility and pain. The examiner noted the Veteran had difficulties performing the daily activities of dressing and bathing. The Board finds the results from this examination reflect the Veteran was entitled to a 20 percent rating for limitation of motion for the first time during the period on appeal. Forward flexion was 50 degrees, within the range of 30 degrees to 60 degrees as contemplated by a 20 percent rating. As such, the Board finds a 20 percent rating was warranted based on the Veteran's increased limitation of movement of his spine. However, the Veteran's forward flexion of 50 degrees exceeds the 30 degrees forward flexion contemplated by a higher 40 percent rating, as discussed above. The record does not include any additional range of motion or relevant treatment records testing after October 2010. Additionally no ankylosis, favorable or unfavorable, of the spine was noted. Therefore, the Board finds the evidence does not establish the Veteran was entitled to a rating in excess of 20 percent for limitation of motion at any point during the period on appeal. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the Board notes the VA examiner in October 2010 specifically performed additional range of motion testing after repetitive use of the spine. The examiner noted the Veteran did not experience any additional loss of range of motion during testing after repetitive use. As such, the Board finds the VA examinations of record explicitly considered the DeLuca factors and determined the Veteran did not experience any additional functional loss due to repetitive motion. Therefore a higher disability evaluation is not warranted based on functional loss after repetitive use. Other Diagnostic Codes The Board notes other diagnostic codes may apply to disabilities of the back. Note 1 following the General Rating Formula for Disease and Injuries of the Spine states that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. However, the Board finds the evidence of record does not establish the Veteran experienced separate neurological abnormalities. In March 2008 the Veteran was provided a VA examination specifically to evaluate any nerve condition. The examiner opined the Veteran had decreased vibration in his toe which "could be an early neuropathy, which might account for his restless leg syndrome." However, the Board finds the examiner's use of the words 'could' and 'might' indicate the Veteran was not clearly diagnosing the Veteran with neuropathy or attributing this condition to his restless leg syndrome at that time. Because of the suggestion of doubt in the examiner's statement, the Board finds this report is less probative in determining the etiology of the Veteran's restless leg syndrome or neuropathy. Additional treatment records do not include any diagnosis of neuropathy or restless leg syndrome due to the Veteran's back condition. Instead VA treatment records from February 2006 suggest the Veteran's restless leg syndrome "might reflect mild alcohol or narcotic withdrawal symptoms" or "early alcoholic peripheral neuropathy." At that time Veteran was prescribed medication to treat his restless leg syndrome should the symptoms reoccur. Therefore, the Board finds that although the record contains some suggestion that the Veteran has restless leg syndrome and/or neuropathy, the medical evidence does not include an opinion clearly suggesting the Veteran's current neuropathy or restless leg syndrome was as likely as not due to his service-connected back condition. Notably, the Veteran has also not asserted that his back condition caused any neuropathy or restless leg syndrome. Instead, during his May 2010 hearing the Veteran denied that his back pain radiated down his legs, instead testified his pain was throughout the length of his spine. (See hearing transcript page 3). Therefore, the Board finds the evidence does not establish the Veteran currently has restless leg syndrome or neuropathy due to his service-connected back condition. In addition the VA examiner from October 2010 specifically noted the Veteran did not have any history of numbness, paresthesias, unsteadiness, or leg or foot weakness. Additionally, muscle strength, reflexes, and sensory responses were all normal. As such, the Board finds the most recent VA examination report did not establish the Veteran had any separate neurological condition. Therefore, the Board finds the evidence of record does not establish the Veteran had a separate neurologic condition requiring a separate rating at any point during the period on appeal. The schedular criteria also provides that back disabilities can be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes if it results in a higher evaluation than the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In order to warrant a rating for IVDS the schedular criteria requires intervertebral disc syndrome conditions which cause incapacitating episodes, defined as is 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). However, the Board finds the medical evidence of record does not establish the Veteran experienced any incapacitating episodes requiring bed rest prescribed by a physician at any point during the period on appeal. In his May 2010 hearing before the Board the Veteran testified that his back condition confined him to bed while at home one or two days in the previous month. However, the Veteran did not indicate this bedrest was prescribed by a physician. Instead, the Veteran specifically denied he had ever been prescribed bedrest while in a hospital. Additionally, in October 2010 the VA examiner specifically noted the Veteran did not experience any incapacitating episodes of spinal disease. As such, the Board finds a rating under this formula is not warranted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's back disability that would render the schedular criteria inadequate. The Veteran's main symptom was of severe pain, which was specifically contemplated in the schedular rating that was assigned. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Based on all of the foregoing the Board finds that the Veteran's back condition warranted a rating not to exceed 10 percent before October 2010 and a rating not to exceed 20 percent after October 2010. These ratings were confirmed by limitation of motion testing, as discussed above. The evidence does not establish the Veteran was entitled to a higher rating under DeLuca or extraschedular considerations. Nor does the evidence establish any separate neurological rating is warranted due to the Veteran's back condition. Therefore, the Veteran's claim for an increased rating for his service-connected back condition is denied. TDIU The Veteran is also seeking total disability based on individual unemployability. Under VA regulations a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. In this case, the Veteran is only service connected for his back condition discussed above. His back condition was rated 10 perfect before October 2010 and 20 percent after October 2010. Therefore, the Veteran does not meet the schedular criteria for a TDIU rating. VA regulations provide that veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular standards of section 4.16(a) may be referred to the Director, Compensation and Pension Service, for extra-schedular consideration of TDIU. However, in this case the Board finds referral for consideration of extra-schedular TDIU is not warranted. The Board acknowledges the record contains some suggestion the Veteran is currently unable to work, including the Veteran's consistent lay testimony, the determination by the SSA, and the November 2005 letter from his physician. However, the Board finds none of this evidence establishes the Veteran is currently unemployable due only to his service-connected back condition. Throughout the period on appeal the Veteran has consistently asserted that he is unable to work due to his back condition. As discussed above, the Board finds the Veteran is competent to report feeling back pain during work activities. However, when weighed against the other evidence of record the Board finds the evidence does not establish the Veteran is unemployable due to his back condition alone. The treatment records reflect the Veteran suffers from numerous additional conditions for which he is not service-connected, including: chronic heart condition, atrial fibrillation, chronic alcoholism, and malnutrition. Although the Board sympathizes that the Veteran suffers from these conditions, they cannot be considered in determining whether the Veteran is entitled to TDIU based on his service-connected disabilities alone. Additionally, despite all these conditions the April 2006 physical residual functional capacity assessment conducted by the SSA indicated the Veteran could still occasionally lift or carry 10 pounds, frequently lift less than 10 pounds, stand for at least 2 hours, and sit for about 6 hours. This record suggests the Veteran continued to retain the functional capacity to perform some work activities, providing evidence against the Veteran's claim. Finally, in the October 2010 VA examination the examiner specifically opined the Veteran was not unemployable due to his back condition. The examiner noted the Veteran had good function of his upper extremities, as well as education, special training, and previous work experience. The Board finds this opinion is highly probative as the examiner reviewed the Veteran's entire claims file before providing a clear opinion on the impact of his single service-connected condition on the Veteran's ability to work. The Board finds the examiner provided a clear, unequivocal opinion, as well as supporting rationale explaining his opinion. Therefore, the Board finds this examination report provides highly probative evidence against the Veteran's claim. With regard to the Veteran's complaints of pain, it is important for the Veteran to understand that if there were no problems associated with his back there would be no basis for a compensable evaluation, let alone a 20 percent evaluation. Based on the foregoing, the record contains evidence that the Veteran is currently unable to secure or follow substantially gainful employment. However, the evidence does not establish the Veteran is unemployable due to his service-connected disabilities. Instead, the most recent VA examiner specifically opined that the Veteran's back condition, his only service-connected condition, does not cause the Veteran to be unemployable. Therefore, the Veteran's claim for TDIU is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in January 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. An additional letter was provided in October 2006 following the Dingess decision providing the additional notification required under that case. Although this additional notice was not given prior to the first adjudication of this claim, the Veteran has since been provided multiple opportunities to submit evidence and argument in support of his claim, as well as ample time to respond. Therefore, the Board finds any defect concerning the timing of the notice requirement was harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally records were obtained from the Social Security Administration. The Veteran was also provided a hearing before the Board in May 2010. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed back condition, specifically regarding any impact on his work ability. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. No pertinent evidence that had not yet been submitted was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for an increased rating for his service-connected back condition is denied. The Veteran's claim for TDIU is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs