Citation Nr: 1802631 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 05-39 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for a back disability prior to July 5, 2006; in excess of 40 percent from July 5, 2006 to November 3, 2008; and in excess of 60 percent thereafter, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected back disability, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), prior to July 16, 2015. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to May 1991; from November 2000 to July 2003; and from July 2006 to July 2007. The Veteran also had additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In June 1998 and October 2007 Board hearings, the Veteran provided testimony before different Veterans Law Judges. The Veterans Law Judges who previously held the hearings are no longer employed at the Board. In March 2015, the Veteran was informed of this fact and given the opportunity to request a new hearing. The Veteran indicated that he did not wish to appear at another Board hearing. Thus, there is no hearing request pending at this time and the Board will continue with adjudication of the Veteran's appeal. In December 2007, the Board remanded the Veteran's claim for an increased rating for his back disability for additional development. In a January 2010 decision, the Board granted an increased initial 20 percent rating for the Veteran's back disability and remanded the issue of an initial rating higher than 20 percent for further development. In a May 2010 rating decision, the Appeals Management Center (AMC) implemented the Board's January 2010 decision and assigned the initial 20 percent rating for the back disability effective May 24, 1995. In September 2011, the Board denied the appeal for an initial rating higher than 20 percent for the back disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). A February 2012 Unilateral Motion for Remand (Unilateral Motion) found that the Board erred in its September 2011 decision by not considering whether an extraschedular rating was warranted and by not addressing whether staged ratings may be appropriate. Specifically, the Court stated that the Board did not provide any analysis as to whether the Veteran's reports that he missed 25 weeks of work and seven months of work in a preceding 12-month period during November 2008 and February 2010 VA examinations, respectfully, constitute "marked interference with employment." In April 2012, the Court granted the February 2012 Unilateral Motion filed by counsel for the VA Secretary, vacating the Board's September 2011 decision and remanded the issue consistent with the Unilateral Motion. In May 2015, the Board denied an initial rating in excess of 20 percent for the Veteran's service-connected back disability on a schedular basis prior to April 19, 2007 and granted an increased 40 percent rating since April 19, 2007. Further, the Board remanded the issues of entitlement to an increased rating for the service-connected back disability on an extraschedular basis and TDIU for further development, to include referral of the extraschedular issue to VA's Compensation Director (Director) for extraschedular consideration, pursuant to 38 C.F.R. § 3.321(b)(1). In March 2016, the RO implemented the Board's May 2015 decision, which assigned a 40 percent rating for the Veteran's service-connected back disability, effective April 19, 2007. The RO referred the issue to the Director for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1)). In an April 2016 Decision, the Director found that an extraschedular rating was warranted for the service-connected back disability. In a January 2017 Decision Review Officer Decision, the Veteran was assigned an increased 60 percent rating for the back disability effective November 4, 2008, given the finding by the Director. In December 2017, the Board remanded the claim for further development. There was substantial compliance with the Board's remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999). Regarding the issue of an increased disability rating for the Veteran's service-connected back disability on an extraschedular basis, the Board will focus the crux of its analysis on whether alleged time loss from work constitutes "marked interference with employment" addressed in the February 2012 Unilateral Motion discussed above. FINDINGS OF FACT 1. The Veteran does not report or exhibit any symptoms associated with his service-connected back disability that are not included in the rating criteria or have otherwise been left uncompensated or unaccounted for by his assigned schedular ratings at any point of the appeal period. 2. The Veteran's service-connected back disability does not exhibit an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards at any point of the appeal period. 3. It was not factually ascertainable that the Veteran was precluded from employment due to service-connected disabilities prior to the assigned effective date of July 16, 2015. CONCLUSIONS OF LAW 1. The criteria for an initial extraschedular rating in excess of 20 percent for a back disability prior to July 5, 2006; in excess of 40 percent from July 5, 2006 to November 3, 2008; and in excess of 60 percent thereafter pursuant to 38 C.F.R. § 3.321(b)(1), have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5237, 5242, 5243 (2017). 2. The criteria for an effective date earlier than July 16, 2015 for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 2017 statement, through his representative, the Veteran contended that he was not examined during a flare-up or after repetitive use over time. It should be noted that the Veteran is currently in receipt of a 60 percent disability rating based on diagnostic code 5242-5243 which is based on incapacitating episodes having a total duration of at least 6 weeks during a past 12-month period. As a 60 percent rating contemplates incapacitating episodes, it contemplates flare-ups, which caused such episodes of incapacitation. VA satisfied its duty to assist when it provided a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination). The Board may assume a that VA medical examiner is competent. See Cox, 20 Vet. App. at 569; Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The opinions provided include a discussion of the facts in this case, medical principles, and a thorough rationale. The Veteran has not offered competent and probative evidence in support of his assertions to persuade the Board that the examiners were not competent to render the opinions sought. Thus, the Board finds the opinions provided to be adequate. VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. Back - Extraschedular Considerations The Board has considered whether a higher evaluation of the Veteran's service-connected back disability on an extraschedular basis is warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the Rating Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. In exceptional situations where the rating is inadequate, the case may be referred for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. Following the May 2015 Board decision, the issue was referred to the Director for extraschedular consideration. The Director found that an extraschedular rating was warranted for the Veteran's service-connected back disability. The Veteran's back disability is currently rated by analogy under DC 5242-5243 at 60 percent disabling, effective November 4, 2008, under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. During the November 2008 VA examination, the Veteran reported that he was employed for the Federal Government as a law enforcement officer and that due to his back pain and increased absenteeism, he was transferred to an administrative position. The Veteran stated that he lost on average 2 to 3 weeks per month, or 25 weeks from work during the preceding 12-month period. He indicated that his lifestyle is sedentary because of the work. The Veteran reported the same in an August 2009 statement through his representative. During the February 2010 VA examination, the Veteran reported that his back pain was a constant 8/10 and would flare to 10/10 once per week in which case he was "basically incapacitated." The Veteran indicated that he treated the pain with four Tylenol tablets once a day without side effects and as a result of the pain he missed seven months of work in the preceding 12 months. An increased extraschedular rating is not warranted. A comparison of the Veteran's disabilities and the applicable rating criteria do not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Throughout the appeal period, the back disability mainly resulted in pain and limitation of motion. For example, in an April 2002 VA examination report, the VA examiner noted that a review of x-rays reveals a normal lumbar lordotic curve, bone architecture normal throughout, disc spaces well preserved, and no facet degenerative joint disease at any level. Moreover, the examiner indicated that the Veteran's disability at the time was "little to minimal." An April 2003 VA examination report reflects that the Veteran's lower back had full range of motion, non-tender to palpation over vertebral column, and straight leg raise test were negative. The Veteran had a full weight bearing non-antalgic gait and was able to bear all of his weight on one foot. The Veteran reported severe pain that lasted 30 minutes, aggravated by lifting, walking, running, and turning the wrong way, which was relieved by muscle relaxer. The examiner noted pain on weight bearing activities but no decrease in range of motion. In a November 2005 substantive appeal (VA Form 9, Appeal to the Board), the Veteran reported limitation of motion including "forward bending in standing position," "lateral motion", and "loss of spine motion." In a May 2006 VA medical record, the Veteran complained of low back pain which he indicated "comes/goes" and was often exacerbated. The Veteran denied radicular pain and described the pain as achy. The physician noted that despite specific questioning, the Veteran was very unclear and vague about the chronicity of his pain. A February 2007 VA medical record indicates that the Veteran's back exhibited tenderness on palpation and lumbosacral spine pain was elicited throughout the range of motion, however showed a normal appearance and no step deformity. The physician indicated that lumbosacral spine motion was normal. It was also noted that the Veteran complained of lower back pain two and one-half weeks prior, but that the pain was "almost fully resolved 2/10 sharp pain" at the time of the medical visit. The physician indicated that the Veteran was not receiving treatment for his lower back. Similar findings were reported in a March 2007 VA medical record. An August 2007 VA medical record reflects that the Veteran did not have low back pain at the time of the medical visit and the physician recommended weight loss to help decrease the risk of strain of the Veteran's back. Upon the November 2008 VA examination, the examiner found that the Veteran did not have any objective abnormalities of thoracic sacrospinalis, including spasm, atrophy, guarding, pain with motion, tenderness, or weakness. The Veteran reported constant low back pain; however, the examiner specifically found that the Veteran's motor strength was well preserved and symmetric for all extremities. Further, the examiner noted that the Veteran's ambulation was effective and steady with good balance and coordination and was able to remain seated for an extended period of time during the history intake. The examiner also indicated that the Veteran was able to change his clothing including over-head to remove his shirt and was able to remove his shoes without difficulty or requesting assistance. In a December 2010 VA medical record, the physician indicated that the Veteran was "somewhat guarded during the interview" but "became animated and forthcoming with information when talking about physical issues and his C&P (Compensation and Pension) claim." In a June 2011 VA medical record, the Veteran reported ongoing back pain and indicated that lidocaine and meloxicam have been helpful. The physician noted that the Veteran had not reordered the medication, although he was reminded that he could and that he did not request Tylenol Number 3 either. It was noted that the Veteran had been to physical therapy but was vague as to whether it was helpful or not. The Veteran was afforded a VA examination in December 2014. The examiner noted that a back examination revealed pain with movement and loss of range of motion. The Veteran reported functional loss due to pain, which limited heavy lifting, sitting, and standing. It was noted that the Veteran did not require the use of any assistive devices as a normal mode of locomotion. The Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. In the June 2017 VA examination report, the Veteran reported flare-ups of his back disability with extended standing or walking that increased his pain to a 9/10. The Veteran reported an inability to stand or walk for extended periods of time and inability to lift more than 10 pounds without increased back pain. The Veteran indicated that he had constant low back pain at 6/10 and used Tylenol for pain. The examiner noted that the Veteran had IVDS but did not have any episodes of acute signs and symptoms that required treatment and bed rest prescribed by a physician in the preceding 12 months. As shown above, the record reflects that the Veteran experienced mainly pain and limitation of motion. The Veteran's inability to stand, walk, or lift heavier weight is contemplated in the assigned schedular rating, as such limitations are the result of the Veteran's pain and limitation of motion. The April 2002 VA examiner indicated that the Veteran's disability at the time was "little to minimal." In a November 2005 VA Form 9, the Veteran himself only reported symptomology of the back of limitation of motion. February and March 2007 and August 2007 VA medical records indicate that the Veteran had "almost fully resolved sharp pain" and no low back pain, respectfully. The records also show that the Veteran was not receiving any treatment at the time. During a June 2011 VA medical visit, the Veteran was noted to have been prescribed lidocaine and meloxicam but did not continue the use of those prescription drugs or request Tylenol Number 3. The June 2017 VA examiner noted that the Veteran has constant low back pain which Tylenol was used to relieve pain. The Veteran also has IVDS, however no incapacitating episodes. The Veteran has been in receipt of a 60 percent disability rating for IVDS since November 4, 2008, which is based on incapacitating episodes having a total duration of at least 6 weeks during a past 12-month period. The Veteran has not shown any incapacitating episodes, treatment and prescribed bed rest by a physician, at any point of the appeal period. Any functional loss discussed above is contemplated by the schedular ratings assigned based on limitation of motion based on DC 5237 for the prior periods. The Veteran has not shown favorable or unfavorable anklylosis to warrant higher ratings. The Veteran does not report or exhibit any symptoms associated with his back disability that are not included in the rating criteria or have otherwise been left uncompensated or unaccounted for by his assigned schedular ratings at any point of the appeal period. See 38 C.F.R. §§ 4.71a, 4.124a; DCs 5237, 5242, 5243; see also Thun, 22 Vet. App. at 115. The Board has also considered the second step of the inquiry, namely whether there are "related factors" such as "marked interference with employment" or "frequent periods of hospitalization" as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). As previously mentioned, the Veteran has asserted that his service-connected back disability has caused him to lose 25 weeks and seven months in a 12-month period during the November 2008 and February 2010 VA examinations, respectfully. The Veteran reported that he averaged 10 days of absence from his job every month due to his low back problem during the December 2002 VA examination. The Veteran testified at a December 2007 Board hearing that he worked as a civilian police officer with the Department of Defense. He reported that he was forced to take an administrative position and had been forced to take almost one and one-half months off due to his back pain. The Veteran indicated that he received less "compensation" by giving up his freedom of being out and helping other people which is something he missed doing paperwork. He did not indicate that he was compensated less financially. In April 2015 and August 2009 statements, through his representative, the Veteran reiterated the fact that he missed 25 weeks and seven months in a 12-month period as reported during the November 2008 and February 2010 VA examinations, respectfully. Further, during the June 2017 VA examination, the Veteran asserted that he missed 15 days of work per month due to his low back pain. The Board finds that the Veteran's overall statements regarding the alleged marked interference with employment lack credibility, as there is indication of self-interest and a desire for monetary gain with many inconsistencies. See Caluza, supra, 7 Vet. App. at 511-512 (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F. Supp. 2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). For example, in a January 1997 VA medical record, the Veteran reported that he was employed full time as a VA police officer and did not report time lost from work due to his back disability. While the Veteran reported 10 days of absence every month from his job during the December 2002 VA examination, objective testing performed during an April 2003 VA examination found full range of motion of the back and the VA examiner's functional assessment was pain on weight bearing activities but no decrease in range of motion. The Veteran was able to bear all of his weight on one foot, walk on his toes, heels, and tandem walk. In the Veterans August 2008 VA Form 21-526, Application for Compensation and Pension, the Veteran wrote that he worked as a police officer at the Department of Defense from July 16, 2007, to August 15, 2008 and answered "0" to "days lost due to disability." In a January 2012 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported he worked 40 hours a week at the Department of Defense from April 15, 2010 to August 31, 2011 and indicated "40" as time lost from illness. He also indicated that he worked at the Kwajalein Police 48 hours a week from August 31, 2011 to December 20, 2011 and wrote "10" as time lost from illness. It is not clear whether "40" and "10" are hours, days, weeks, or months. In a July 2015 VA Form 21-8940, the Veteran reported that he worked at a private security company, 76 hours per week from May 22, 2014 to June 30, 2015 and answered "40 months" as time lost due to illness. In an August 2015 VA Request for Employment Information in Connection with Claim for Disability Benefits form, the Veteran reported that he worked at the private security company from April 20, 2014 to July 15, 2015 and had lost 140 hours during the 12 months preceding the last date of employment due to disability. In a March 2016 VA Form 21-8940, the Veteran reported that he worked at the Department of Defense 40 hours a week from November 2012 to May 2014 and indicated "120" as the time lost from illness. The Veteran also reported that he worked in the private security company 40 hours a week from March 2014 to July 2015 and answered "80" as time lost from illness. Again, it is unclear whether "120" and "80" are hours, days, weeks, or months. The Veteran has inconsistently reported his dates of employment and time lost from work as documented above. In a March 2009 VA medical record, the Veteran indicated that he wanted to continue working and requested a handicap parking sticker because he felt this would enable him to work and not cause a flare-up with the shorter walking distance. Further, in a December 2010 VA medical record, the physician indicated that the Veteran was "somewhat guarded during the interview" but "became animated and forthcoming with information when talking about physical issues and his C&P claim." The Veteran indicated that he was employed full-time as a supervising police officer on base during the overnight shift. When asked if he had any difficulty with work, the Veteran checked "no answer." It was noted that the Veteran said he did not need to talk about things he checked "no answer" and he added, "if it works, don't fix it." In a June 2011 VA medical record, it was noted that the Veteran had been to physical therapy but was vague as to whether it was helpful or not. Moreover, a March 2013 VA medical record revealed that the Veteran was employed as a police officer from November 2012 until he resigned in March 2013. In a May 2014 VA medical record, it was noted that the Veteran can walk more than a mile without pain. In the Veteran's April 2013 application for Social Security Administration benefits, the Veteran listed his employment history and indicated that he lifted and carried supplies and equipment in all of the positions detailed. The Veteran indicated that he frequently lifted 50 pounds or more in several positions. The Veteran answered that he stopped working on March 8, 2013, "because of other reasons" and explained that he was "forced to resign." During the January 2015 VA examination, the Veteran indicated that he had an argument with his officer, which was the reason why he resigned in 2013. The January 2015 VA examiner indicated that the back examination revealed pain with movement and loss of range of motion; however, the examiner noted the Veteran stated he was able to entertain light physical and/or sedentary employment. The Board notes that the Veteran was in receipt of individual unemployability from July 16, 2015 to December 16, 2015. The Veteran has been in receipt of a 100 percent or totally disabling rating combined evaluation for his service-connected disabilities since December 16, 2015. The Veteran has reported during the June 2017 VA examination that due to his low back pain he misses approximately 15 days of work per month. The Board has not found the Veteran credible to report the amount of time lost from work due to his service-connected back disability given his inconsistent statements demonstrated above and his "guarded" and "vague" answers regarding the back disability including in December 2010 and June 2011 VA medical records, which suggest a high motivation for self-serving purposes for an increased disability rating. Further, as discussed, the medical records themselves do not support a finding that the Veteran's disability picture demonstrated a "marked interference with employment" and the Veteran was never hospitalized or received any substantial treatment for his back disability. Any time lost from work would be contemplated in the Veteran's 60 percent rating since November 4, 2008 for IVDS based on incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. The Board has fully considered the Veteran's service-connected back disability in concluding that an increased rating on an extraschedular basis is not warranted. The preponderance of the evidence is against the claim for an initial disability rating in excess of 20 percent for a back disability prior to July 5, 2006; in excess of 40 percent from July 5, 2006 to November 3, 2008; and in excess of 60 percent thereafter, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1), the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Earlier effective date for TDIU The Veteran contends that an effective date earlier than July 16, 2015 is warranted for the grant of a TDIU. TDIU may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341(a), 4.16(a). 38 C.F.R. § 4.16(a) establishes that the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2017). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A veteran's level of education, special training, and previous work experience may be considered as part of a TDIU claim. Age or impairment(s) caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disabilities rendered a veteran unemployable. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. On a September 25, 2017 Veteran's Application for Increased Compensation Based on Unemployability form (VA Form 21-8940), the Veteran indicated that he became too disabled to work on July 15, 2015. On a March 31, 2016 VA Form 21-8940, the Veteran also answered July 15, 2015 as the date he became too disabled to work and the actual date that he last worked full time. On a March 31, 2016 VA Request for Information in Connection with Claim for Disability Benefits form (VA Form 21-4192), the Veteran indicated that the last day he worked was July 15, 2015. The Veteran was in receipt of TDIU from July 16, 2015 to December 16, 2015 when he was at a 100 percent combined evaluation for compensation for his service-connected disabilities. Since the Veteran himself has stated, on multiple occasions, on the formal VA Form 21-8940 that he became too disabled to work on July 15, 2015 and indicated on VA Form 21-4192 that the last day he worked was the same, the Board finds that an effective date of July 16, 2015 is the earliest date a TDIU was warranted, as the facts establish he was engaged in substantial gainful employment prior to that time. Further analysis is not necessary since the Veteran was granted a TDIU effective the date he himself claimed to be unemployed and too disabled to work. The preponderance of the evidence is against the claim for a TDIU due to service-connected disabilities, prior to July 16, 2015, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to an initial disability rating in excess of 20 percent for a back disability prior to July 5, 2006; in excess of 40 percent from July 5, 2006 to November 3, 2008; and in excess of 60 percent thereafter, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1), is denied. An effective date earlier than July 16, 2015 for the award of a TDIU rating due to service-connected disabilities is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs