Citation Nr: 21069728 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 13-29 623 DATE: November 19, 2021 ORDER Entitlement to an effective date earlier than September 9, 2010, for the award of a total rating based on individual unemployability (TDIU) is denied. FINDING OF FACT 1. A February 2000 rating decision that denied TDIU became final when the Veteran did not appeal, new and material evidence was not received by the agency of original jurisdiction within the one-year appeal periods, and the regional office (RO) did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of which are new and material evidence. 2. The preponderance of the evidence shows that, while a claim for a TDIU had been pending since August 3, 2004, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU or the criteria for an extraschedular TDIU earlier than September 9, 2010. CONCLUSION OF LAW The criteria for effective dates earlier than September 9, 2010, for the grant of a TDIU have not been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1966 to April 1986. This appeal comes to the Board of Veterans' Appeal (Board) from an October 2012 rating decision that granted TDIU effective from January 18, 2021. In August 2013 the Board, among other things, remanded the claim for an earlier effective date for TDIU. In a March 2018 decision, a Veterans' Law Judge not the undersigned issue a Board decision that, among other things, granted the TDIU effective September 9, 2010. The Veteran appealed the March 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 order, the Court granted the parties March 2019 Joint Motion for Partial Remand (JMPR-1) vacating and remanding the March 2018 Board decision to the extent that, among other things, it did not grant an effective date earlier than September 9, 2010, for the TDIU. In an October 2019 decision, a Veterans' Law Judge not the undersigned issue a Board decision that, among other things, denied the claim for an effective date earlier than September 9, 2010, for the TDIU. The Veteran appealed the October 2019 Board decision to the Court. In a January 2021 order, the Court granted the parties January 2021 Joint Motion for Partial Remand (JMPR-2) vacating and remanding the October 2019 Board decision to the extent that, among other things, it did not grant an effective date earlier than September 9, 2010, for the TDIU. In June 2021 the Board, among other things, Remanded the claim for an effective date earlier than September 9, 2010, for the award of the TDIU. The Concerns Raised by the JMPR-1 and JMPR-2 and Post-Remand Compliance As to the concerns raised in the JMPR-1 and post-Remand compliance, the Board notes that the bases from vacating and remanding the Board decision was because the Board decision did not consider and discuss the arguments made by the Veteran's old representative in the March 2018 informal brief which included the assertion that the Veteran met the criteria for referral of his TDIU claim to the Director, Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). However, since the Court granted the JMPR-1, the Board in June 2021 Remanded the claim to send it to the Director, Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b) and in September 2021 they opined that the Veteran did not meet the criteria for extraschedular TDIU under 38 C.F.R. § 4.16(b) prior to September 9, 2010. The issue is now moot. Therefore, the Board finds that VA has addressed one of the concerns raised in the JMPR-1 as well as complied with the Remand and no further action as to this concern is required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Also as to the concerns raised in the JMPR-1, the Board notes that in the March 2018 informal brief the Veteran's old representatives also asserted that the appellant met the criteria for a TDIU because the medical evidence of record, including the records obtained from the Social Security Administration (SSA), the January 1999 and January 2012 VA examination reports, and the April 2009 opinion from Dr. Leonard Neumann shows his service-connected back disability made him unemployable since 1995. Similarly, as to the concerns raised in the JMPR-2, it vacated and remanded the Board decision was because the Board did not consider and discuss whether the Veteran's February 1998 and November 1999 increased rating claims acting as earlier claims for a TDIU when taking into account Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) and Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the Board feels obligated to note to the Veteran that the cases above did not exist at the time of these rating actions, making RO review of those cases at that time unworkable. However, and as discussed in more detail below, the current adjudication both considers and discusses, among other things, all arguments raised by the Veteran's old representatives in the March 2018 informal brief as well as whether the Veteran's February 1998 and November 1999 increased rating claims acted as earlier claims for a TDIU when taking into account Comer, supra, and Rice, supra. Therefore, the Board finds it addressed the concerns raised in the JMPR-1 and JMPR-2 and no further action as to these concerns is required at this time. See Sabonis, supra. The Earlier Effective Date Claim As noted in the March 2018 informal brief as well as the JMPR-1 and JMPR-2, the Veteran asserts, in substance, that he is entitled to earlier effective date for his TDIU dating back to at least 1995 because he was unemployable due to his service-connected back disability since that time and because his TDIU claim has been pending since he filed his claims for increased ratings in February 1998 or November 1999 when considering the holdings in Comer, supra, and Rice, supra. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). As to appeals like the current one when the claim was filed before March 24, 2015, the term "claim" or "application" meant 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). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). If a Veteran file's a claim for benefits with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the regional office (RO) issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. Thereafter, in Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020) the United States Court of Appeals for the Federal Circuit removed the sufficient knowledge of the existence of the VA records requirement in Turner. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Horton v. Wilkie, No. 18-6269, 2020 U.S. App. Vet. Claims LEXIS 240 (Vet. App. Feb. 12, 2020); Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to the merits of the earlier effective date claim and as noted above, a March 2018 Board decision already granted the TDIU effective September 9, 2010. The Board granted this effective date because, after the decision found that the Veteran met the criteria for the grants of earlier effective dates of September 9, 2010, for the award of service connection for radiculopathy of the bilateral lower extremities in the decision, it found that his service-connected disabilities both met the schedular criteria required by 38 C.F.R. §§ 4.16(a) for a TDIU and his medical records showed that they preclude substantial gainful employment as of September 9, 2010. In this regard, it is important for the Veteran understand that not all evidence in this record supports the Board's grant of this claim in 2018. Next, and as directed by the JMPR-2, the Board will consider if the Veteran had an earlier claim for a TDIU pending prior to September 9, 2010, to include due his February 1998 and November 1999 increased rating claims taking into account the holdings in Comer, supra, and Rice, supra, regarding increased rating claims also acting as a claim for a TDIU when the Veteran claims or the record shows he cannot obtain and maintain gainful employment because of a service-connected disability. In this regard, a review of the record on appeal reveals the following procedural history: on December 8, 1993, the RO received from the Veteran a statement that the Board finds acted as an informal claim for a TDIU as defined by 38 C.F.R. § 3.1(p); on February 5, 1998, the Veteran filed a claim for an increased rating for his back disability which, when considering Comer, supra, and Rice, supra, the Board also finds acted as a claim for a TDIU; on November 1, 1999, the Veteran filed with the RO a formal claim for a TDIU; and in a February 2000 rating decision, the RO denied the Veteran's claim for a TDIU. Tellingly, the Veteran did not appeal February 2000 rating decision. See 38 C.F.R. § 20.302(a). Moreover, the Board finds that additional records were not received by the RO in the first year following the February 2000 rating decision that are new and material evidence. See 38 C.F.R. § 3.156(b). The Board also finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period of the February 2000 rating decision that are new and material evidence. See Turner, supra; Lang, supra. Lastly, the Board notes that the Veteran has never claimed that there was CUE in the February 2000 rating decision. See 38 U.S.C. § 7105; 38 C.F.R. § 3.105. This issue has not been raised and is not before the Board. Accordingly, the Board finds that the February 2000 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Given the final February 2000 rating decision, the Board finds that neither the December 1993 statement, the February 1998 claim for an increased rating for his back disability, or the November 1999 claim for a TDIU can act as an earlier claim for a TDIU in the current appeal even when considering Comer, supra, and Rice, supra, as required by the JMPR-2 because any outstanding TDIU claim was addressed in the final February 2000 rating decision that was not appealed. The filing of increase rating claims does not create separate claims of TDIU. Any finding otherwise creates an impossible situation for the RO to address: Forcing the RO to address TDIU three times (once when the IR back claim is raised, once when TDIU is raised, and once when an informal claim for a TDIU was raised) would make no sense. TDIU was raised, TDIU was fully addressed, and the Veteran did not appeal this determination in a timely manner. Consequently, the Board finds that effective date for the assignment of the TDIU may be no earlier than a new application; at some point in time after the final February 2000 rating decision. Given the above, the next question for the Board to consider is when, if ever, the RO received a formal or informal claim for a TDIU between the time of the final February 2000 rating decision and September 9, 2010 (i.e., the effective date already granted his TDIU by the Board). This is key issue. In this regard, the Board finds that the first time that the RO thereafter received a writing from the Veteran requesting a determination of entitlement or evidencing a belief in entitlement to a benefit (i.e., a claim for a TDIU) is on August 3, 2004, when the appellant wrote, in substance, that due to his service-connected back disability he was unemployable because of this constant painful condition that has no chance of correction. See 38 C.F.R. § 3.1(p); MacPhee, supra. Therefore, because the RO was not the subject or an intervening and final rating or Board decision until it was adjudicated and granted in an October 2012 rating decision, the Board finds that the current TDIU claim has been pending since August 3, 2004. In reaching the above conclusion, the Board has not overlooked the fact that prior to August 3, 2004, the Veteran filed with the RO medical records as well as many written statements. However, the Board finds that neither these earlier medical records or the earlier writings from the Veteran acted as an earlier claim for a TDIU as defined by 38 C.F.R. § 3.1(p) because none includes a communication of the appellant's intent to file a claim for a TDIU as required by 38 C.F.R. §§ 3.157(b)(1) and MacPhee, supra. It is important for the Veteran to understand that simple medical treatment for the back is not enough to find a "claim" for an increase rating. Given the above, the next question for the Board to consider is when, if ever, the Veteran met the criteria for a TDIU any time from August 3, 2004, to September 9, 2010. See 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). In this regard, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of non-service connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). All Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 4.16(b). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The assignment of a rating evaluation is itself recognition of industrial impairment. Initially, the Board notes that for the August 3, 2004, to September 9, 2010, time-period the Veteran was service-connected for the following disabilities: a back disability rated as 40 percent disabling from September 1, 1998; a left shoulder disability rated as 10 percent disabling from January 16, 1991, to January 18, 2012; tinnitus rated as 10 percent disabling from May 1, 1986; bilateral hearing loss rated as 0 percent disabling from May 1, 1986, to November 20, 2016; hemorrhoids rated as 0 percent disabling from May 1, 1986, to January 18, 2021; and post-operative inguinal scar rated as 0 percent disabling from May 1, 1986. In this regard, context in this case is important: Not all the evidence in this case supports the 40 percent evaluation for the back. i. 38 C.F.R. § 4.16(a) As to a TDIU under 38 C.F.R. § 4.16(a) for the August 3, 2004, to September 9, 2010, time-period, the Board finds that the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a)(1)-(5) because he did not have two or more service-connected disabilities with one disability rated at 40 percent or higher with his combined rating being 70 percent or higher. ii. 38 C.F.R. § 4.16(b) Given the above, the next question for the Board to consider is when, if ever, his service-connected disabilities met the criteria for an extraschedular TDIU under 38 C.F.R. § 4.16(b) for the August 3, 2004, to September 9, 2010, time-period due to his service-connected disabilities rendering him unable to secure and follow a substantially gainful occupation. In this regard, in Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director, Compensation Service, for extraschedular consideration. However, in this appeal and as noted above, in September 2021 the Director, Compensation Service already opined that the Veteran did not meet the criteria for an extraschedular TDIU under 38 C.F.R. § 4.16(b). Specifically, the Director, Compensation Service opined as follows: ... A review of the file shows the Veteran last worked as an insurance salesman in 1994 and prior to that, was a school teacher. The Veteran was found to be disabled by the Social Security Administration due to his back condition. The medical evidence shows that the Veteran back condition would result in decreased concentration, problems with lifting and carrying, lack of stamina with weakness or fatigue. Although it is conceded that the Veteran's service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disable. The Executive Director of Compensation Service has determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment. Entitlement to extra-schedular TDIU benefits is not established. Tellingly, while the Director, Compensation Service extraschedular decision may serve to inform the Board's review, it is not evidence and is reviewable by the Board on a de novo basis. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). Therefore, the Board may review on the merits the extraschedular TDIU claim under 38 C.F.R. § 4.16(b). With the above criteria in mind, the Board notes that the Veteran in his November 1999 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claim's Form), reported that he had not worked full-time since 1994 and became too disabled to work in 1993 because of his service-connected disabilities. As to his work history, the Veteran reported that from 1987 to 1988 and 1990 to 1991 he worked as a schoolteacher and from 1993 to 1994 he worked as an insurance salesman. In his subsequent December 1999 TDIU Claim's Form, the Veteran reported that he had not worked full-time and became too disabled to work in 1995 because of his service-connected disabilities. As to his work history, the Veteran reported that from 1990 to 1991 he worked as a schoolteacher, from 1993 to 1994 he worked as a hotel manager, and from 1994 to 1995 he worked in sales. As to his education, the Veteran reported that he had 4-years of college as well as a Masters' degree in education. Clearly the very his highly educated, as this fact must be considered in this case. Additionally, in the March 2018 informal brief from the Veteran's old representatives it was asserted that the appellant met the criteria for a TDIU since 1995 because of his service-connected back disability for the following reasons: in July 1998 the SSA found the Veteran disabled effective December 1, 1995, because of his back disability; the January 1999 VA examiner opined that the Veteran could not work because of his back disability; the January 2012 VA examiner opined the Veteran was unable to manage either physical or sedentary work since 1995 because of his back disability; and in April 1999 Dr. Neumann opined that the appellant had been totally disabled due solely due to his back disability since 1995. However, as to the SSA finding, the Board notes that a decision granting the veteran SSA benefits is not controlling in a VA claim decision. Roberts v. Derwinski, 2 Vet. App. 387 (1992) (the fact that SSA has ruled that a veteran is disabled, under SSA law, does not establish, in and of itself, that the veteran is permanently and totally disabled for purposes according to the laws and regulations governing VA). Moreover, the Board notes that the July 1998 SSA decision, when analyzing the severity of the problems caused by Veteran's back disability included the problems caused by his nonservice-connected bilateral lower extremity radiculopathy. Therefore, the Board finds that the SSA finding has even less probative value because it relied on a nonservice-connected disability to support its' finding. See Owens, supra. Similarly, as to the January 1999 and January 2012 VA examiner's opinions, the Board notes that the supporting language cited by the Veteran's old representative were taken out of context and the opinions as they are actually found in the examination reports have limited probative value. Id. Specifically, the Board notes that the January 1999 VA examiner did not opine that the Veteran could not work because of his back disability but instead appeared to just be reporting the appellant's lay claim that he was unable to work because of his back because he cannot lift, stoop, bend, sit, or stand for prolonged periods. Id. Moreover, even if the January 1999 VA examiner had opined that the Veteran was unable to work because of his back disability, the Board finds that this opinion would lack probative value because the examination and the subsequent opinions regarding functional impact did not distinguish between the adverse symptomatology caused by the Veteran's service-connected back disability and his nonservice-connected neck disability as well as his nonservice-connected bilateral upper and lower extremity radiculopathy. Id. Likewise, as to the January 2012 VA examiner's opinion, the Board finds that the examiner did not opine that the Veteran had been unable to manage either physical or sedentary work because of his back disability since 1995 due to his service-connected back disability. It is important for the Veteran to understand that the Board has reviewed this case is great detail. A closer reading of the VA examination reports shows the examiner noted that the SSA had found him disabled since 1995 because of his back disability and currently his back disability made him unable to manage either physical or sedentary work because of his back disability. Id. Therefore, the Board finds that neither the SSA findings nor the January 1999 and January 2012 VA examinations provide probative evidence as to the question currently before the Board: did the appellant meet the criteria for an extraschedular TDIU under 38 C.F.R. § 4.16(b) solely due to his service-connected disabilities. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). Next it is important for the Veteran and his representative to understand that even if the Board conceded that the appellant had been unable to work since 1993 as reported by the Veteran or 1995 as found by the SSA and opined by some of his healthcare providers (they seem to be simply citing to the SSA finding, not providing probative evidence), this fact alone is not enough to meet the criteria for an extraschedular TDIU at any time from August 3, 2004, to September 9, 2010. See Owens, supra; Ray, supra. The Board has reached this conclusion because extraschedular consideration is only warranted when the adverse symptomatology caused by a Veteran's service-connected disabilities are not adequately compensated for by the rating criteria. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (providing, in substance, that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity). In this regard, the Board finds that the most probative evidence of record in the form of the Veteran's treatment records and a VA examination shows that the adverse symptomatology caused by his service-connected back disability, left shoulder disability, tinnitus, bilateral hearing loss, hemorrhoids, and post-operative inguinal scar are both contemplated and consider by the rating criteria at all times from August 3, 2004, to September 9, 2010. See Owens, supra. Specifically, as to his service-connected back disability, left shoulder disability, hemorrhoids, and scar, the Board finds that at all times from August 3, 2004, to September 9, 2010, the Veteran's reports regarding his adverse symptomatology are, in substance, complaints of having pain, lost motion, anal pain/itching, and an observable scar (i.e., observable adverse symptomatology). See Davidson, supra. Moreover, as to the back and shoulder disabilities, the limited treatment records found the claims file for the August 3, 2004, to September 9, 2010, time-period show his adverse symptomatology was limited to, in substance, some lost motion and some pain. See, e.g., VA treatment records dated in January 2005, March 2005, November 2005, July 2006, August 2006, February 2007, March 2008, June 2008, October 2008, and May 2009; Dr. Milan Mody record dated in March 2008; letter from Dr. Marguerite Picou dated in August 2008; treatment records from the Orthopedic Clinic dated from August 2004 to December 2004. As to his hemorrhoids and scar, while the August 3, 2004, to September 9, 2010, medical records noted a history of each, the Board finds it significant that none of the record documented his complaints or treatment for either disability. Tellingly, the Board finds that above record shows that the Veteran's adverse back disability, left shoulder disability, hemorrhoid, and scar symptomatology are both considered and compensated by the 40 percent rating he received for his back limitation of motion and pain, the 10 percent rating he received for his left shoulder limitation of motion and pain, as well as the noncompensable ratings he received for his non symptomatic hemorrhoids and scar under the rating schedule at all times from August 3, 2004, to September 9, 2010. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5019-5203, 5295-5292 (2005); 38 C.F.R. §§ 4.71a, 4.114, 4.118, Diagnostic Codes 5201-5019, 5292-5237, 7336, 7805 (2010); Owens, supra; also see 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016); Burton v. Shinseki, 25 Vet. App. 1 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also finds it significant that all of the Veterans problems and statements regarding these problems were considered in the ratings. If he did not have these problems, there would be no basis for the ratings he was getting at that time. Simply having back problems is not enough. A 40 percent disability rating for a back disability will cause the Veteran problems. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran did not meet the criteria for an extraschedular TDIU at any time from August 3, 2004, to September 9, 2010, due to the adverse symptomatology caused by his service-connected back disability, left shoulder disability, hemorrhoids, and scar notwithstanding Dr. Neumann's April 2009 opinion and the Veteran's old representative's assertions to the contrary. See Owens, supra. In reaching the above conclusion the Board has not overlooked the fact in April 2009 Dr. Neumann opined that the Veteran had been totally disabled due solely due to his back disability since 1995. However, the Board finds Dr. Neumann's opinion has limited probative value because it is not supported by the Veteran's August 3, 2004, to September 9, 2010, medical records. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The limited treatment for this back problem during this time, when medical treatment was available, given the Veteran's contentions regarding his back problems, leaves the Board with certain questions regarding the true nature and extent of the back problem in this highly well-educated Veteran. Why a highly educated Veteran can not work in a job that does not involve the use of his back for manual labor is not clear. In any event, the Board also does not find Dr. Neumann's opinion probative because it is not supported by clinical evidence. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). Instead, as others do, Dr. Neumann appears to be relying solely on the SSA disability finding which, as discussed above, the Board does not find probative because, among other things, it relied, at least in part, on the Veteran's nonservice-connected bilateral lower extremity radiculopathy. See Owens, supra. Likewise, as to his service-connected tinnitus and bilateral hearing loss, the Board finds that at all times from August 3, 2004, to September 9, 2010, the Veteran reported having problems with ringing in the ears and difficulty hearing (i.e., observable adverse symptomatology) (see Davidson, supra.) and the medical records show his adverse symptomatology was limited to, in substance, ringing in the ears and a noncompensable level of hearing loss. See, e.g., VA examination dated in August 2005. In this regard, at the August 2005 audiological VA examination the Veteran's adverse symptomatology was limited to the criteria for a 10 percent for tinnitus and a noncompensable level of hearing loss. See 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 and 6260 (2010). In this regard, the Board also finds it significant that the criteria for rating hearing loss even includes a regulation for rating exceptional patterns of hearing loss. See 38 C.F.R. § 4.86. Tellingly, the Board finds that above VA examiner's findings show that the Veteran's adverse tinnitus and bilateral hearing loss symptomatology are both considered and compensated by the 10 percent rating he received for tinnitus and the noncompensable rating he received for his lost hearing under the rating schedule at all times from August 3, 2004, to September 9, 2010. See 38 C.F.R. §§ 4.85, 4.86, 4.87, Diagnostic Codes 6100 and 6260 (2010); Also see Owen, supa. The Board again finds it significant that all of the Veterans problems and statements regarding these problems were considered in the ratings. If he did not have these problems, there would be no basis for the ratings he was getting at that time. Therefore, the Board finds that the preponderance of the evidence shows that the Veteran did not meet the criteria for an extraschedular TDIU at any time from August 3, 2004, to September 9, 2010, due to the adverse symptomatology caused by his service-connected tinnitus and bilateral hearing loss. See Owens, supra. Given the above, the Board finds that the preponderance of the evidence shows that the adverse symptomatology caused by the Veteran's service-connected back disability, left shoulder disability, hemorrhoids, scar, tinnitus, and bilateral hearing loss did not meet the criteria for an extraschedular TDIU at any time from August 3, 2004, to September 9, 2010. See 38 C.F.R. § 4.16(b); Owens, supra. The Board has reached this conclusion because, notwithstanding the SSA decision, the January 1999 and January 2012 VA examiners opinions, and Dr. Neumann's April 2009 opinion as well as the Veteran's old and current representatives assertions to the contrary and the appellant's claims to the contrary, the preponderance of the evidence in the form of the above treatment records and the VA examination shows that his only adverse symptomatology is both contemplated and consider by the rating criteria at all times from August 3, 2004, to September 9, 2010. See 38 C.F.R. §§ 4.16(b), 4.71a, 4.85, 4.86, 4.87, 4.114, 4.118; Owens, supra; Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). There is significant evidence in this case against some of those findings and evaluations, let alone the very limited issue before the Board at this time, undermining event the granting of TDIU, let alone an earlier effective date for this award. (Continued on the next page) Accordingly, while the Veteran's TDIU claim have been pending since August 3, 2004, the Board finds that the most probative evidence of record shows that entitlement to a TDIU did not arise at any time from August 3, 2004, to September 9, 2010, and the earlier effective date claim is denied. See 38 U.S.C. § 5110(b); 38 C.F.R. §§ 3.400, 4.16; Owens, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.