Citation Nr: 1800348 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 99-00 213A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a separate disability rating for symptoms from the medications required to treat the service-connected lumbosacral strain. 2. Entitlement to a disability rating in excess of 40 percent for lumbosacral strain on an extraschedular basis. 3. Entitlement to an effective date earlier than March 31, 2003 for the award of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1966 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2004 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, and Washington, D.C., respectively. The appeal involves a complicated procedural history, discussed in the decisions below. For efficiency, that history will not be duplicated in this Introduction section. FINDINGS OF FACT 1. Throughout the appeal period, the medications needed to treat the Veteran's lumbar spine disability have caused fatigue and cognitive impairment, approximating a restriction of routine daily activities to 50 to 75 percent of the pre-illness level. 2. In light of the award of a separate rating for the symptoms from the medications required to treat the service-connected lumbosacral strain, the schedular 40 percent rating assigned to the lumbosacral strain adequately contemplates the Veteran's disability picture. 3. The Veteran filed an informal claim for entitlement to a TDIU on October 11, 1995. 4. As of November 23, 1993, it was factually ascertainable that the Veteran's service connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a separate, 40 percent disability rating for the side effects of the medications used to treat the lumbar spine disability, rated by analogy as chronic fatigue syndrome, have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.20, 4.88b, Diagnostic Code (DC) 6354 (2017). 2. The criteria for a disability rating in excess of 40 percent for lumbosacral strain on an extraschedular basis have not been met. 38 U.S.C. §§ 501, 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321(b), 4.71a, DCs 5295, 5237 (effective prior to September 23, 2002, effective on September 23, 2002, and effective on September 26, 2003); Thun v. Peake, 22 Vet. App. 111 (2008). 3. The criteria for an effective date of October 11, 1995 for the award of a TDIU have been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In reaching the decisions below, the Board considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Extraschedular Rating for Lumbosacral Strain Generally, disability rating are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's claim for a higher rating for his lumbar spine disability was received in March 2003. During the appeal period, including within one year of his claim, the regulations pertaining to evaluating disabilities of the spine were revised. Under prior versions of the regulations, the Veteran's spine disability was rated under DC 5295. Under the current version of the regulations, his disability has been rated under DC 5237 via the General Rating Formula for Diseases and Injuries of the Spine. Throughout the appeal, he has been in receipt of a 40 percent rating. The regulations were first revised on September 23, 2002. Under the regulations in effect prior to this date (pertinent to the window of time within one year of the claim), DC 5295 provided a 40 percent rating for lumbosacral strain, severe, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Ratings higher than 40 percent were warranted only with evidence of a vertebral fracture (DC 5285), ankylosis of the entire spine (DC 5286), ankylosis of the lumbar spine (DC 5289), or pronounced intervertebral disc syndrome. Pronounced intervertebral disc syndrome required persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. As of September 23, 2002, the rating criteria above were changed only as pertinent to intervertebral disc syndrome. A rating higher than 40 percent was assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode was defined as a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. Neurological abnormalities were to be rated separately. As of September 26, 2003, under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned where there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The next higher rating of 50 percent rating is assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned with evidence of unfavorable ankylosis of the entire spine. These rating criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are separately rated under an appropriate diagnostic code. Additionally, under the current Formula for Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, ratings are assigned based on the quantity and duration of incapacitating episodes over a prior 12-month period. For purposes of evaluation under this formula, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. Under this Formula, the next higher rating of 60 percent is assigned with evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). To accord justice in the exceptional case where the criteria in VA's Rating Schedule are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability may be assigned. 38 C.F.R. § 3.321 (b)(1). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321(b)(1) , to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Step one is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral to the Under Secretary for Benefits or the Director, Compensation Service for consideration of an extraschedular rating is required. If, however, the schedular criteria do not contemplate the claimant's level of disability and symptomatology and are therefore found to be inadequate, step two is to determine whether the claimant's disability picture is exceptional, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. If the claimant's disability picture meets this second step, then the third and last step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether, to accord justice, an extraschedular rating is warranted. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom.; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court has affirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating, and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As noted, this appeal stems from a March 2003 claim for a rating higher than 40 percent for the service-connected lumbosacral strain. In the March 2004 rating decision on appeal, the RO denied the claim. The 40 percent rating was continued in a June 2004 rating decision. In May 2005, the Board remanded the claim for further development. In March 2009, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2009, the Court vacated the Board's March 2009 decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In December 2010, the Board remanded the claim for further development. In April 2012, the Board denied a rating higher than 40 percent for the lumbar spine disability on a schedular basis. The Board added to the appeal and remanded the matter of entitlement to an extraschedular rating for the lumbosacral strain. At this juncture, the Board emphasizes that the matter of entitlement to a schedular rating higher than 40 percent was already decided by the Board in the final April 2012 decision. The matter remaining on appeal is the Veteran's entitlement to an extraschedular rating. In June 2013, the Board denied the claim for an extraschedular rating. The Veteran appealed the Board's decision on to the Court. In a September 2014 Memorandum Decision, the Court vacated the June 2013 Board decision and remanded the matter to the Board. The Board's decision was vacated because of its failure to address the impact of the side effects of the Veteran's lumbar spine medications. In this regard, the Court cited a May 2001 statement from the Veteran that his medications caused sedation and rendered him unable to do anything, a March 2003 letter in which he stated his medication caused impaired judgment and precluded his ability to drive, and a January 2004 physical therapy note stating that back pain was relieved by a change in position and medication. The Court found that the effect of medications was not contemplated under the rating schedule pertaining to the spine. In June 2015, the Board remanded the claim in order to obtain an opinion from the Director, Compensation Service, on the matter of an extraschedular rating. In September 2015, the requested opinion from the Director, Compensation Service, was obtained. The Director found that the service-connected lumbosacral strain did not present an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization, that would render application of the current rating schedular criteria inadequate. The Director did not discuss the effects of the Veteran's medication on his disability picture. In consideration of the concerns of the Court in the September 2014 Memorandum Decision, and after reconsidering the evidence of record, the Board finds the Veteran is entitled to a separate rating for the side effects of the medication required to treat his service-connected lumbar spine disability. As described below, the evidence in this regard is limited, but undisputed. On VA examination in April 2001, the examiner noted the Veteran was taking Oxycodone and Cyclobenzaprine for his back disability. VA treatment records from 2001 further document the prescription of Cyclobenzaprine for the back disability. In a May 2001 letter, the Veteran stated that he took Oxycodone for severe back pain, and Cyclobenzaprine for his back spasms. He stated that these medications caused sedation, and made him unable to do anything. In s March 2003 letter, the Veteran stated that his medications, Oxycodone and Cyclobenzaprine, impaired his judgment to the extent he could not drive. In a December 2004 record from the Social Security Administration, the Veteran stated that prescribed Cyclobenzaprine caused dizziness, and Oxycodone left him tired, unbalanced, and unable to do much of anything. He also stated that his medications overall, including psychotropic medications, left him in a hazy state, and he felt very unsure of himself. On VA examination in December 2006, the examiner noted the Veteran's prescriptions of Oxycodone and Cyclobenzaprine. The examiner documented the Veteran's report that he had been unable to drive for 5 years. On VA examinations in March 2004, March 2007, and September 2008, the examiners assessed the Veteran's lumbar spine disability, but did not render findings regarding the effects of his prescribed medications. On VA examination in April 2011, the examiner noted that the Veteran's Oxycodone and Cyclobenzaprine caused him to feel dazed sometimes. They also caused constipation. Numerous VA treatment records, including recent records from 2014, contain a list of "Active Outpatient Medications." This list includes Cyclobenzaprine, with the prescribed dosage and a note indicating there was to be "no driving" on the medication. In a June 2015 private medical report of a psychologist, Dr. T., she stated the Veteran has been on pain medications for many years with limited success. She stated that the side effects of the medications basically incapacitate the Veteran from completing activities of daily living. The above evidence demonstrates the Veteran has been taking these medications throughout the appeal period. The side effects essentially consist of overall fatigue, with feelings of being sedated, hazy, and dazed, and some impairment of judgment. The Veteran is already in receipt of a 30 percent rating for depression associated with his lumbar spine disability, effective throughout the appeal period, under 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. It appears arguable that this symptomatology is duplicative of the fatigue, sedation, haziness, dazedness, and impaired judgment caused by his medications and that he is already being compensated for this symptomatology. Nonetheless, the Court found that the symptoms associated with the medication had been unaccounted for. The Board will thus turn to a discussion of a separate rating under a diagnostic code other than the General Rating Formula for Mental Disorders. Under 38 C.F.R. § 4.20, when an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. Here, resolving all doubt in the Veteran's favor, the Board finds that a separate, 40 percent rating under 38 C.F.R. § 4.88b, DC 6354 for chronic fatigue syndrome, is warranted throughout the appeal period. Under DC 6354 for chronic fatigue syndrome, ratings are provided for symptoms including debilitating fatigue, cognitive impairments (such as an inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 10 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that wax and wane but result in periods of incapacitation of at least one but less than two weeks total duration per year, or; if the symptoms are controlled by continuous medication. A 20 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or; signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or; signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is warranted for signs and symptoms of chronic fatigue syndrome that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. A note to Diagnostic Code 6354 provides that, for the purpose of rating chronic fatigue syndrome, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b . In finding that a 40 percent rating is warranted under DC 6354 for the duration of the appeal period, initially, the record does not demonstrate incapacitating episodes due to the Veteran's medications that required bed rest and treatment by a physician. However, a consistent impairment caused by the medication is the Veteran's inability to drive. This was noted in his March 2003 letter, the December 2004 SSA record, the December 2006 VA examination report, VA treatment records, and statements from the Veteran. The Board finds that the loss of the ability to drive while under the influence of the medications approximates a restriction of routine daily activities to 50-75 percent of the pre-medication level. The preponderance of the evidence is against the assignment of a rating higher than 40 percent under DC 6354. To the extent the Veteran, and Dr. T. in her June 2015 report, generally assert he is fully incapacitated and unable to even perform activities of daily living due solely to the side effects of his medication, these assertions are of low probative weight as they are contradicted by the entire medical record as a whole. The most recent VA treatment records of 2015 show the Veteran lives alone and cares for himself, and has hobbies such as gardening and walking. In the most recent VA lumbar spine examination report of April 2011, the examiner, who directly addressed the side effects of the medications, determined there was an overall severe effect of his lumbar spine disability on sports, a moderate effect on exercise, a mild effect on chores, shopping, recreation, traveling, and driving, and no effect on feeding, bathing, dressing, toileting, or grooming. The remainder of the VA examination reports and treatment records do not illustrate that solely as the result of these medications, the Veteran's routine daily activities have been restricted to less than 50 percent of the pre-medication level, or that routine daily activities are almost completely restricted and self-care is occasionally precluded because of the medications. Instead, the Veteran's level of functioning, with and without these medications, has remained rather constant as reflected by the 1995 and 1997 VA examination reports discussed below, generated prior to his use of the medications. In short, the preponderance of the evidence is against a rating higher than 40 percent under DC 6354. Moreover, to the extent the April 2011 examiner noted the medications sometimes caused constipation, this is an isolated finding that has not been raised by the Veteran, the Court, or treatment records, and a further separate rating in this regard is not warranted. In its September 2014 Memorandum Decision, the Court identified only the side effects of the Veteran's medications as an outlier symptom not completed by the Veteran's current lumbar spine rating. No other symptoms were identified that would trigger extraschedular consideration. The Board will thus not duplicate its prior recitations of the evidence, as discussed at length in April 2012 and June 2013 adjudications. The Board will briefly summarize the remaining symptomatology of the lumbar spine disability as reflected by VA examination reports generated throughout the appeal. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence.) These reports are illustrative of the Veteran's remaining overall disability picture and symptomatology. On VA examination in April 2001, the Veteran reported back stiffness and pain. He had flare-ups two to three times per month. He reported numbness in the leg. He could not lift objects and avoided stairs. He could not bend, stoop, or squat. He could only travel in a car for up to one hour. He reported easy fatigue. The clinical examination demonstrated limitation of motion and tenderness. The examiner diagnosed degenerative intervertebral disc disease with osteoarthritis of the facet joint of the lower lumbar segments. On VA examination in March 2004, the Veteran reported increased pain. He had a non-antalgic gait and required a cane. He denied flare-ups. He reported constant pain. On examination, there was a limitation of motion. There were no muscle spasms, weakness, or change in the range of motion on repetition. On VA examination in December 2006, the Veteran reported pain and stiffness. He required a cane for assistance with ambulation. He had significant limitations on walking. He could not lift, push, or pull. Standing was limited to 30 minutes. He could not kneel, squat, or stoop. He could manage his personal hygiene without assistance. He had trouble with stairs. He reported flare-ups causing incapacitation. The examination revealed slight flattening of the lumbar lordosis, tenderness, and a decreased range of motion. The examiner found no radiculopathy or sensory deficit. The examiner diagnosed degenerative intervertebral disc disease of the lower lumbar spine and generalized osteoporosis of an undetermined etiology. The examiner stated the Veteran's symptoms were grossly out of proportion to physical findings. On VA examination in March 2007, the Veteran reported severe pain in the low back. He used a cane for amputation. He reported severe limitations on walking. He reported he could not lift, push, or pull. Standing was limited to 30 minutes. He could not kneel, squat, or stoop. Sitting and traveling in a car was limited to one hour. He reported incapacitating flare-ups. The examination revealed no gross deformity of the lumbar spine. There was tenderness and limited motion. The examiner diagnosed degenerative intervertebral disc disease of the lumbar spine without radiculopathy or radicular irritation. On VA examination in September 2008, the Veteran reported pain in the low back. He required a cane. He had limitations on walking, lifting, pushing, and pulling. He could stand for 15 minutes. He did not drive. Pain interfered occasionally with personal hygiene. He could not manage stair. He had flare-ups. The examination showed no sensory or motor deficits. He had a markedly restricted range of motion. He was diagnosed with degenerative intervertebral disc disease. The examiner noted a rather marked magnification of symptoms. There was no radiculopathy. On VA examination in April 2011, the Veteran reported back pain and flare-ups. He denied fatigue. He had stiffness, weakness, spams, and pain. He could not walk farther than one block. He had an antalgic gait. He displayed a decreased range of motion on examination. He was diagnosed with chronic lumbosacral strain. The condition caused decreased mobility, problems with lifting and carrying, difficulty reaching, a lack of stamina, and pain. The examiner found the demonstrated symptomatology was grossly out of proportion to and unexplainable by objective radiologic and clinical findings. As such, aside from the now-separately rated symptoms associated with his medication, the Veteran's lumbar spine symptoms include pain, limited motion, and muscle spasms. The predominant symptom is extreme pain that significantly affects and limits numerous aspects of his life, including sitting, standing, lifting, climbing, bending, stooping, squatting, sleeping, recreational activities, exercise, hygiene, carrying, reaching, pulling, and pushing. However, his spine symptoms, including pain, are fully encompassed within the meaning of the General Rating Formula for Disease or Injury of the Spine, the Formula for Rating IVDS Based on Incapacitating Episodes, the prior version of the spine regulations, and 38 C.F.R §§ 4.40 and 4.45. Simply stated, the application of the Rating Schedule is not rendered impractical. Other than the side effects of the Veteran's medication, the Court did not identify any other symptom warranting extraschedular consideration. The Veteran simply does not have any other symptoms resulting from his service-connected lumbar spine disability that are unusual or different from those contemplated by the schedular criteria. In light of the separate rating already assigned, the Board cannot now find that the first element of Thun has been satisfied, and the preponderance of the evidence is against an extraschedular rating. Earlier Effective Date for TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. However, it is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service- connected disabilities "shall be rated totally disabled." See 38 C.F.R. § 4.16(b). Significantly, the Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service for consideration of an "extraschedular rating" under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 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). Under 38 U.S.C. § 5110 (a), the effective date of an increase in a veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation 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." Thus, "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As this appeal was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. In a November 1998 rating decision, a TDIU was denied. The matter of a TDIU had not been adjudicated prior to November 1998. The Veteran appealed this decision. In May 2000, May 2005, and March 2009, the Board remanded the claim for further development. In the May 2010 rating decision on appeal, the RO awarded a TDIU, effective March 20, 2007. The Veteran expressed his timely disagreement with this effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). In December 2010, the Board remanded the matter of entitlement to an earlier effective date for a TDIU. In a December 2010 rating decision, the RO awarded an earlier effective date of March 31, 2003. In April 2012, the Board remanded the matter of entitlement to an earlier effective date for a TDIU. In June 2013, the Board denied an effective date earlier than March 31, 2003. The Veteran appealed the Board's decision on to the Court. In a September 2014 Memorandum Decision, the Court vacated the June 2013 Board decision and remanded the matter to the Board. The Board's decision was vacated because of its failure to properly weigh lay evidence in a number of ways. The Court emphasized that the matter of a TDIU is not a medical question, and in treating it as such, the Board had given "short shrift" to the lay evidence of record. The Court also found that the Board should not have placed so much weight on the Veteran's April 2004 statement as to which disability produced unemployability in light of many of his statements to the contrary. The Board also did not consider in its analysis the lay statements about the effects of medication. The Board additionally failed to discuss what probative value it assigned to various pieces of lay evidence, including concerning the Veteran's educational background and past job pursuits. Finally, the Court also vacated the Board's decision to the extent the Board equated an absence of evidence of unemployability with negative evidence. In June 2015, the Board remanded the claim in order to obtain an opinion from the Director, Compensation Service on the matter of an extraschedular rating. In September 2015, the requested opinion from the Director, Compensation Service was obtained. The Director denied the assignment of an extraschedular TDIU prior to March 31, 2003. Even considering the award granted in the section above, prior to March 31, 2003, the Veteran was service-connected for only two disabilities, his lumbar spine disability and a right ankle disability. His combined rating was 40 percent as of March 25, 1995, and 50 percent as of August 10, 2000. There is no dispute that the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) were not met for this period. As the matter has been referred to the Director, the Board now has the ability to award an extraschedular TDIU if warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board will first determine when it was factually ascertainable that the Veteran was unable to secure or follow substantially gainful employment due to service-connected disabilities. The record shows the Veteran completed 12 years of education. He reports that he has not completed additional education or training since becoming too disabled to work. See VA Forms 21-8940. He reports that he last worked full-time on November 17, 1993. The SSA found the Veteran has been disabled since November 23, 1993. See Virtual VA Entry October 4, 2011. The Board has closely reviewed the record and while it cannot point to the SSA's determination, records from the SSA show that disability benefits were sought based on the service-connected back disability, right ankle disability, and depression. On VA examination in July 1995, the examiner noted the Veteran previously worked as a manager of a wire company, but was not presently working. The examiner did not render findings on the impact of Veteran's disability on his employability. On VA examination in August 1997, the Veteran reported he could not run his lawn and garden business due to his back pain. The examiner did not render findings on the impact of Veteran's disability on his employability. In a September 1997 statement, the Veteran reported that he had not worked since 1993 due to his back problems. On VA examination in October 1997, the Veteran reported it was difficult for him to perform manual labor. He reported that in 1993, he attempted to open an lawn and garden business, but was unable to continue to back pain. Prior to that, he worked as an office clerk in a business that later closed. The examiner did not render findings on the impact of Veteran's disability on his employability. In a January 1999 statement, the Veteran listed a number of jobs he had been unable to obtain due to physical limitations stemming from his back disability. In an August 2000 statement, the Veteran reported that he had contacted the New York Department of Labor and was told that they did not know of any positions in the work force to which he could be referred. The Veteran stated that he had recently obtained a part-time job at his church, cleaning, dusting, and watering flowers approximately eight to ten hours per week. On VA examination in April 2001, the Veteran reported that he worked in a sedentary job from the time of his discharge in 1966 until 1993, when the company went out of business. He reported he had been working in temporary jobs since that time, including at his church. The examiner opined that while the Veteran had significant degenerative changes in his spine, they should not render him unable to secure substantially gainful employment. The ankle condition should not prevent gainful employment. The examiner stated that while the Veteran would not qualify for heavy-duty manual labor, his past work history was of a sedentary nature, and he could continue with that type of activity. In a June 2015 private medical report of Dr. T., she stated she had reviewed the claims file and interviewed the Veteran. She stated that from 1966 to 1993, the Veteran worked as a laboratory technician. From June to November 1993, he worked as a shipping and receiving manager. Thereafter, he attempted self-employment in a lawn and garden business. She provided a chronological summary of the pertinent medical evidence. She opined, After reviewing [the Veteran's] complete VA claim consisting of over 700 pages and after speaking with [the Veteran] on several occasions, it is my professional opinion as a licensed psychologist as well as a nationally certified rehabilitation counselor that as of 1993 when he last worked, his service-connected low back pain prevented him from obtaining and maintaining substantial, gainful employment. She stated that the Veteran's reports have been consistent throughout the appeal. A review of the file revealed that even while working, he had difficulties with sitting, standing, and physical lifting. While performing sedentary activities, he missed work at least once per month for days at a time. She stated that his pain medications have side effects which basically incapacitate him from completing even activities of daily living. She concluded that the Veteran has been incapable of obtaining and maintaining substantial, gainful work activity at any skill or exertional level from the time he last worked in November 1993. The report of Dr. T. is adequate for the purposes of adjudication. She based her conclusion on an assessment of the Veteran and provided a rationale for her conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). She specifically indicated that she had also reviewed the claims file. Resolving all doubt in favor of the Veteran, the Board finds that since November 23, 1993, the Veteran's service-connected lumbar spine and right ankle disabilities prevented him from securing or following substantially gainful employment. This is supported by the evidence above, including the findings of the SSA and the opinion of Dr. T. As discussed by the Court, the Veteran's admissible and believable lay statements also support this finding. To the extent the SSA also considered the psychiatric disorder, a non-service connected disability prior to March 2003, the Board resolves doubt in favor of the Veteran, particularly given the findings of Dr. T., which addressed only service-connected disabilities. VA examiners in July 1995, August 1997, and October 1997 did not render pertinent findings, and as discussed by the Court, the absence of evidence does not equate to negative evidence. Rather, the only evidence to the contrary is the April 2001 VA examiner's opinion, the probative value of which is diminished to the extent the examiner did not consider the effects of the Veteran's medications. In sum, at a minimum, there is an approximate balance of positive and negative evidence. In such situations, the benefit of the doubt is resolved in the Veteran's favor. As for the date of the Veteran's claim, prior to March 31, 2003, the record contains the underlying VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in April 1998, upon which this appeal stems. However, earlier to this is a VA Form 9, date-stamped as received by VA on October 11, 1995, in which the Veteran stated that he was unable to work due to his lumbar spine disability, and had not worked in almost two years. Earlier yet is a Notice of Disagreement (NOD) from January 1967 and a VA Form 9 from February 1967 in which the Veteran stated he could not work due to his back disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. The 1967 and 1995 statements were made in connection with claims for a higher ratings for the service connected disabilities, and must be construed as inferred claims for a TDIU pursuant to Rice. However, as for the 1967 claims, after perfecting his appeal, in March 1967 the Veteran and his representative each submitted correspondence stating that the appeal was withdrawn. See 38 C.F.R. § 20.204. Later in March 1967, the RO confirmed the withdrawal of the appeal. As the 1967 claims were properly withdrawn, they no longer remained pending. It was not until the October 11, 1995 VA Form 9 that the Veteran again raised a claim pursuant to Rice. Prior to the October 11, 1995 VA Form 9, there were not communications that could be interpreted as an informal claim for a TDIU. While there are medical records dated during this time period, there is no indication in any of these records of an intent to apply for a TDIU. The Board therefore finds that there was no pending claim for a TDIU dated prior to October 11, 1995. As discussed, the date on which it was factually ascertainable that a TDIU was warranted is November 23, 1993. This date preceded the claim (October 11, 1995) by more than one year. As such, the date of claim is the proper effective date. To the extent the preponderance of the evidence is against an effective date even earlier than October 11, 1995, the benefit of the doubt doctrine is not applicable. ORDER A separate, 40 percent rating for symptoms from the medications required to treat the service-connected lumbosacral strain is granted. A disability rating in excess of 40 percent for lumbosacral strain on an extraschedular basis is denied. An effective date of October 11, 1995, but no earlier, for the award of a TDIU is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs