Citation Nr: 21073296 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-21 472 DATE: December 8, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for a back disability prior to August 4, 2011, and in excess of 40 percent thereafter is denied. Entitlement to an initial disability rating of 20 percent for right lower extremity radiculopathy is granted. Entitlement to an initial disability rating of 20 percent for left lower extremity radiculopathy is granted. Entitlement to an effective date of April 1, 2007, for the award of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is granted. FINDINGS OF FACT 1. Prior to August 4, 2011, the Veteran's back disability is productive of forward flexion greater than 30 degrees; favorable ankylosis of his entire lumbar spine and incapacitating episodes of at least 4 weeks are not shown. 2. Since August 4, 2011, the Veteran's back disability has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of his entire lumbar spine and incapacitating episodes with a total duration of at least 6 weeks are not shown. 3. The Veteran's right lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. 4. The Veteran's left lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. 5. Resolving all reasonable doubt in the Veteran's favor, the Board finds that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities as of April 1, 2007, to include on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for a back disability prior to August 4, 2011, and in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating of 20 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for an effective date of April 1, 2007, for the award of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to March 1967. The Veteran received the Vietnam Service Medal and the Parachutist Badge, among other commendations. By way of background, the Veteran filed a claim for service connection for a back disability on May 24, 2005. In May 2011, the Board of Veterans' Appeals (Board) granted service connection for a back disability. In a July 2011 rating decision, the local Regional Office (RO) effectuated the May 2011 Board decision, assigning an initial disability rating of 10 percent, effective as of May 24, 2005. In August 2011, the Veteran filed a notice of disagreement (NOD), appealing both the initial evaluation of his service-connected back disability and the effective date assigned for the award of service connection. In November 2011, the Veteran, through his representative, withdrew his August 2011 NOD. On the same day, the RO issued a rating decision in which the Veteran's service-connected back disability was increased from 10 percent to 40 percent, effective as of August 4, 2011. Then, in a July 2012 correspondence, the Veteran, through his representative, indicated that he was reinstating the August 2011 NOD which had been withdrawn in November 2011. As the July 2012 correspondence was submitted within one year of the initial July 2011 rating decision granting service connection, the Board found that the initial disability rating assigned for the Veteran's back disability remains on appeal. During the pendency of the appeal, in a March 2016 rating decision, the RO increased the initial evaluation of the Veteran's back disability from 10 percent to 20 percent. In addition, the RO continued the 40 percent disability rating assigned from August 4, 2011. In November 2018, the Board denied entitlement to an effective date earlier than May 24, 2005 for the award of service connection for a back disability. The Board granted an effective date of November 30, 2010 for the grant of entitlement to service connection for right and left lower extremity radiculopathy. In addition, the Board remanded the Veteran's increased rating claims for his back and radiculopathy, and entitlement to an earlier effective date for TDIU, for further development. In a November 2020 rating decision, the RO granted a new effective date of November 30, 2010 for TDIU. The Board notes that in November 2021, the Veteran's representative attempted to elect the evidence review appeal lane under AMA for entitlement to an earlier effective date for TDIU. See VA Form 10182. The Board notes that, once a claim for an increased rating is placed in appellate status, the period addressed by a subsequent rating decision granting an increased rating remains part of the pending appeal and cannot be separately appealed by filing a new NOD. See 38 C.F.R. § 3.2400 (a)(2) (AMA applies "[w]here a claimant has elected review of a legacy claim under the modernized review system"). Here, the Veteran raised the issue of TDIU during the pendency of the legacy appeal for entitlement to an increased disability rating for the Veteran's service-connected back disability. Under Rice v. Shinseki, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the TDIU claim for the entire appeal period remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 360-362 (2018) (entitlement to a TDIU remains pending unless the benefit is granted in full for the entire appeal period). Increased Rating 1. Entitlement to an initial disability rating in excess of 20 percent for a back disability prior to August 4, 2011, and in excess of 40 percent thereafter The Veteran contends that his back disability is more severe than his current disability rating reflects. His symptoms are currently rated as 20 percent disabling prior to August 4, 2011, and 40 percent thereafter. Disabilities of the spine are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (DC 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula provides that a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. Alternatively, DC 5243 provides that a 10 percent rating is warranted for incapacitating episodes of IVDS having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is assigned in the event of incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1) under DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. The Board notes that, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Turning to the evidence of record, a May 2005 VA treatment note shows that the Veteran reported that his back pain has become worse. The Veteran indicated that he has been working more lately since a coworker has been unavailable. Pain was reported to be moderately controlled with the usual pain regimen. The Veteran noted that he has been unable to work due to the pain. The Veteran was seeking an excuse for time off work. In a March 2007 VA treatment note, the Veteran denied back pain or pain radiating down his leg. The Veteran was afforded a VA examination in May 2009. The Veteran reported daily pain. The Veteran denied any radicular pain down his legs with any burning, numbness, tingling, or any pain. The Veteran stated that if he sits on the commode for any length of time, he will get bilateral leg numbness, but that is the only time. The Veteran indicated that he would have occasional flares after he takes a walk, which he does not do very often. The Veteran indicated that he has a difficult time lying flat. The Veteran noted that he cannot stand for more than three to four minutes and that he cannot sit for more than fifteen minutes. The Veteran can get dressed, bathe, and groom himself. The Veteran has discontinued activities such as tennis, football, and basketball. The Veteran noted that he has not been prescribed bed rest, been hospitalized, or had any surgery to his back. The Veteran denied weight loss, malaise, fevers, visual disturbances, weakness, bowel or balder incontinence or erectile dysfunction. Upon examination, the examiner noted that the Veteran had some difficulty rising from the chair. Thus, the examiner opined that all initial movement causes pain. The examiner expressed that the Veteran walks bent over in a slow, wide-based, stiff, abnormal gait. The Veteran was unable to tandem walk without holding on and was unable to balance on toes and heels. Romberg test was negative. Forward flexion was limited to 70 degrees, 20 degrees less due to increased pain. The Veteran refused to perform extension due to fear of increased pain. The examiner noted that a distracted straight leg raise does not cause pain. Tone and sensation are adequate. No muscle atrophy was noted. The Veteran was unable to do repetitive motion due to fear of increased pain. The Veteran submitted a private medical opinion from Dr. M. Novak, dated in June 2011. The examiner noted that the Veteran has been experiencing low back pain and at times leg pain for many years. The Veteran described his low back pain as constant and moderate. The Veteran indicated that his symptoms increased with daily activities. The examiner indicated that pain intensity overall was moderate. Due to the pain, the Veteran is unable to work. Upon examination, the examiner noted that on palpation, moderate spasms and tenderness were observed bilaterally. The examiner noted that the Veteran's flexion was positive at 50 degrees and that range of motion testing was limited by pain. The examiner stated that repetitive motion further exacerbates pain, resulting in total impairment. The examiner opined that the Veteran's limited mobility due to limited range of motion, renders the Veteran not employable. The examiner stated that any physical vocation would be precluded and due to the severity of the Veteran's symptoms, extended sitting would also be impossible. As such, the examiner opined that sedentary work would be precluded. The examiner indicated that the Veteran's severe pain would impair the Veteran's focus and concentration preventing all types of employment. The Veteran was afforded a VA examination in August 2011. The Veteran was noted have stopped working due to his low back. The Veteran reported constant low back pain with radiculopathy pain down to the back of the legs to the feet. The examiner expressed that the Veteran was evaluated for his brief episodes of radiculopathy pain to the legs with some numbness, however, surgery was not recommended at the time. The Veteran was reported to have had multiple different therapies for his back to include epidural injections. The Veteran had physical therapy which failed, to include aqua therapy. The Veteran uses a cane to walk, and now transferred to a walker due to abnormal gait and chronic pain. The Veteran indicated that he has flares in cold and rainy weather, in which his pain becomes intense and sharp, and lasts several days at a time. The Veteran also cites to a secondary type of flare, if he stands for more than five to ten minutes, sits for more than ten to fifteen minutes, or walks for more than 200 yards. The Veteran indicated that he his flares are intense in severity. The Veteran also indicated that if he is sitting, he will have radiculopathy symptoms of numbness. The examiner noted that no physician has prescribed bed rest, or hospitalizations for his back. The Veteran cites limitation of motion and functional impairment, with pain being his limiting factor. The Veteran noted that it is hard to bend forward, which causes flares of pain. The Veteran denied bowl or bladder issues. Upon physical examination, the Veteran's forward flexion was limited to 30 degrees with pain at 30 degrees. The examiner noted that repetitive range of motion did not change degrees or cause pain, weakness, or fatigability. The examiner stated no flare-ups, muscle atopy, weakness, paralysis, or contracture. Distracted leg raises causes pain. The examiner noted no muscle wasting or atrophy. Motor strength was normal, bilaterally. Upper and lower reflexes were intact. The Veteran was afforded a VA examination in January 2012.The Veteran reported flare-ups. The Veteran stated that he has constant pain before pain medication. Initial range of motion revealed flexion to 30 degrees with painful motion that began at 30 degrees. The Veteran was not able to perform repetitive use testing as he refused due to pain. The examiner noted that the Veteran has an abnormal gait. Muscle strength was normal with no atrophy. The examiner noted that the Veteran does not have any other neurologic abnormalities other than radiculopathy. The examiner indicated that the Veteran does not have IVDS. The Veteran was afforded a VA examination in June 2019.The Veteran expressed that his left leg is worsening, and that he has been prescribed Lyrica for his lower extremities, lumbar radiculopathy. The Veteran stated that his radiating lumbar radiculopathy symptoms occur daily and intermittently during the day, depending on how he is sitting. The Veteran reported a constant low back pain and stated that at times "he cannot move." The Veteran reported flare-ups of the thoracolumbar spine. The Veteran stated that he has tried to stop activity that brings on a flare-ups. He stated that his last flare-up was around six to eight months ago and that it lasted a couple of days. The Veteran reported functional loss or impairment. The Veteran indicated that he can no longer sit for longer than 20 minutes and that he must shift his movements often. The Veteran noted that he has difficulty with anything that involves "serious work." Upon examination, initial range of motion as abnormal. Forward flexion was limited to 60 degrees. The examiner indicated that pain was noted on the examination but does not result in or cause functional loss. There was pain with weight bearing and objective evidence of localized tenderness or pain on palpation. The examiner noted pain in the left lumbar paraspinal area and left SI joint pain. The examiner noted that the Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The examiner opined that pain, fatigue, weakness, lack of endurance, and incoordination limit functional ability with repeated use and during a flare-up. Forward flexion would be limited to 40 degrees. The Veteran was noted to have muscle spasms that result in abnormal gait or spinal contour. No muscle atrophy was reported. The examiner noted a normal sensory examination. Straight leg raising test was negative for the left and right side. The Veteran has moderate intermittent pain and mild numbness due to the right and left lower extremity radiculopathy. The examiner indicated that the Veteran's right and left lower extremity radiculopathy was moderate in severity. No ankylosis of the spine was noted and the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine. The examiner indicated that the Veteran has IVDS, but that he has not had any episodes of acute signs and symptoms due to IVDS that required bed rest in the past 12 months. Pursuant to the Board remand, the examiner was asked to interview the Veteran about the nature of the flare-ups he reported in the May 2009, August 2011, and January 2012 VA examinations, and to provide a retroactive opinion as to any additional functional loss during flare-ups at that time. The examiner noted that on the current examination, the Veteran reported that his current flare ups are the same as the previous VA examinations. The Veteran indicated that if he forgets to take his pain medication, he cannot get out of bed. With regards to the May 2009 VA examination, the examiner opined that pain, weakness, fatigability, and incoordination would significantly limit functional ability with repeated use and during a flare up. Forward flexion would be limited to 60 degrees. With regards to the August 2011 VA examination, the examiner opined that pain, weakness, fatigability, and incoordination would significantly limit functional ability with repeated use and during a flare up. Forward flexion would be limited to 20 degrees. With regards to the January 2012 VA examination, the examiner opined that pain, weakness, fatigability, and incoordination would significantly limit functional ability with repeated use and during a flare up. Forward flexion would be limited to 20 degrees. Pursuant to the Board remand, the examiner was asked to opine as to whether the Veteran's range of motion results from the May 2009, August 2011, and January 2012 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-bearing. The examiner expressed that after reviewing the range of motion results from the May 2009, August 2011, and January 2012 VA examinations, the Veteran's range of motion testing would not have been reduced in testing of active and weight-bearing. The examiner noted that it is not medically appropriate to test the lumbar spine in passive range of motion. The examiner expressed during non-weight-bearing the Veteran would have objective pain of the lumbar spine when laying supine. Prior to August 4, 2011 After review, the Board finds that the preponderance of the evidence is against a finding that the Veteran's back disability warrants a rating in excess of 20 percent prior to August 4, 2011. In short, the Board can find no probative evidence establishing that the Veteran's symptoms more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, even when considering the types of functional impairment noted in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca; nor is there any evidence of spinal ankylosis. Neither the VA examination report of record nor the Veteran's VA or private treatment notes reflect such symptomatology. The most limitation of motion of record prior to August 4, 2011 was recorded during the May 2009 VA examination; however, that examination showed that the Veteran still had 70 degrees of forward flexion. Moreover, the Veteran was provided a retrospective opinion regarding the Veteran's report of flare-ups at his May 2009 VA examination, and the examiner noted that 60 degrees represents the extent of the Veteran's forward flexion even when taking into consideration flare-ups and other functional limitations. The Board is well aware that VA is obligated to consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-207. Here, as noted above, such factors have been considered in finding that the Veteran's symptoms more nearly approximate the criteria for a 20 percent rating. Likewise, the weight of the evidence is against a finding that the Veteran has suffered incapacitating episodes of IVDS warranting an increased rating under DC 5243. None of the Veteran's VA treatment records reflect incapacitating episodes of such a severity or frequency as would warrant an increased rating. For these reasons, the weight of the evidence is against a finding of physician-prescribed bedrest specifically on account of IVDS for at least four weeks over a 12-month period. Finally, the Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated objective neurologic abnormalities separately, under an appropriate DC. 38 C.F.R. § 4.71 (a). In this case, the record shows the Veteran has radiculopathy of the right and left lower extremity, but no other neurological abnormalities. The radiculopathy is addressed below. In sum, for the reasons discussed above, the Board finds that an initial rating in excess of 20 percent is not warranted prior to August 4, 2011 for the Veteran's service-connected back disability. From August 4, 2011 The Board also finds that an increased rating is not warranted during the period beginning August 4, 2011. During this period, the Veteran's disability is rated as 40 percent disabling and a higher rating requires a finding of ankylosis. The Veteran has clearly retained some useful motion of the lumbosacral spine during the claims period. At the most recent VA examination in June 2019, he manifested forward flexion to 60 degrees. The August 2011, January 2012, and June 2019 VA examiners also specifically found that the Veteran did not have ankylosis of the spine. While forward flexion was reduced throughout the claims period, the provisions of 38 C.F.R. § 4.40 and § 4.45 pertaining to functional loss are not for consideration where, as here, the Veteran is in receipt of the highest rating possible based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). As the Veteran's entire thoracolumbar spine is clearly not ankylosed, a rating in excess of 40 percent is not warranted for the orthopedic impairment associated with the service-connected back disability during the period beginning August 4, 2011. Turning to whether an increased rating is warranted under the criteria pertaining to IVDS, under 38 C.F.R. § 4.71a , Diagnostic Code 5243, the record does not establish that the Veteran's back disability has manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months. Therefore, an increased rating under the formula for rating IVDS is not warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy 3. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy The Veteran contends he is entitled to a rating in excess of 10 percent for his radiculopathy of the right and left lower extremity. For the following reasons, the Board finds a higher initial rating of 20 percent is warranted. The Veteran's radiculopathy is rated under DC 8520, which applies to paralysis of the sciatic nerve. Under that DC, a 10 percent rating requires evidence of mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires evidence of moderate incomplete paralysis; a 40 percent rating requires evidence of moderately severe incomplete paralysis; a 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy; and finally, the maximum 80 percent rating requires evidence of complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124 (a), DC 8520. The Veteran was afforded a VA examination in August 2011. The Veteran reported that he will have radiculopathy symptoms of numbness in the back of the leg to the feet. The Veteran indicated that he has to stomp his feet to resolve the numbness. Upon palpation, the Veteran complained of pain with radiculopathy symptoms to the bilateral buttocks. The Veteran was afforded a VA peripheral examination in January 2012. The examiner noted mild intermittent pain of the right and left lower extremity radiculopathy. Muscle strength was normal with no atrophy. Sensory and reflex examination were normal. No trophic changes were attributable to peripheral neuropathy. The Veteran's gait was normal. The examiner indicated that the Veteran had normal sciatic nerves. The Veteran was afforded a VA back examination in January 2012. The examiner noted that the Veteran has mild intermittent pain due to his bilateral radiculopathy. Overall, the examiner indicated that the severity of the Veteran's bilateral radiculopathy was mild. The Veteran was afforded a VA examination for his peripheral nerves in June 2019. The Veteran reported that his left leg is worsening, and that he has been prescribed Lyrica for his lower extremity's lumbar radiculopathy. The Veteran reported consistent pain from the buttocks, that goes down the posterior legs to the calves of both legs. The Veteran indicated that his left leg is worse than the right leg. He indicated that he cannot rest his arms on his thighs as he will have "real intense" pain and numbness to the legs. The Veteran expressed that his radiating lumbar radiculopathy symptoms occur daily and intermittently during the day, depending on how he is sitting. The examiner noted severe intermittent pain with mild numbness of the right and left lower extremity radiculopathy. Muscle strength was normal with no atrophy. Sensory and reflex examination were normal. No trophic changes were attributable to peripheral neuropathy. The Veteran did not have a normal gait due to his low back and radiculopathy. The examiner indicated that the Veteran had moderate, incomplete paralysis of the bilateral, sciatic nerve. After review, the Board finds that the most recent June 2019 VA examination of the peripheral nerves, accurately depicts the Veteran's disability level throughout the appeal. Here, the January 2012 peripheral VA examination report noted that the Veteran had normal sciatic nerves, while the January 2012 back examination noted mild radiculopathy. Due to the inconsistencies of the examinations, the Board finds the June 2019 VA examination to be more probative. As relevant to the assigned 10 percent ratings for the lower extremity radiculopathies, the Board finds the evidence reasonably shows the symptoms in the lower extremities are more nearly approximated as moderate severity of the sciatic nerves in nature; thus, warranting 20 percent ratings. Indeed, the June 2019 VA examination report documents moderate, incomplete paralysis of the bilateral, sciatic nerve. In reaching these conclusions, the Board has considered the Veteran's lay reports regarding his symptoms, as well as the medical evidence showing the severity of his radiculopathy symptoms. A higher rating is not warranted since there is no objective or lay evidence to support finding moderately severe or severe incomplete paralysis with marked muscular atrophy. Without any evidence of record to support a finding of moderately severe or severe incomplete paralysis, the preponderance of the evidence is against a rating in excess of 20 percent for the right and left lower extremity radiculopathy. Accordingly, the Veteran warrants an initial 20 percent rating for the right and left lower extremity radiculopathy and the claim is granted. 4. Entitlement to an effective date earlier than November 30, 2010, for the award of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis The Veteran contends that he is entitled to an effective date earlier than November 30, 2010 for his TDIU benefits. Notably, in a November 2021 brief, the Veteran's attorney indicated that the Veteran should be granted TDIU on an extraschedular basis from 2005, the date the Veteran became service-connected for his back disability. Regarding the assignment of effectives dates, the law provides, generally, that the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 the later. 38 C.F.R. § 3.400. That is, the effective date of an award "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 (a). An exception to 38 C.F.R. § 3.400 provides that in cases involving increases for 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 the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The United States Court of Appeals for Veterans Claims (Court) determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). Initially, the Board notes that the Veteran was granted TDIU on a schedular basis effective August 4, 2011, in an August 2013 rating decision. The issue of entitlement to TDIU prior to that period was referred to the Director of Compensation Claims, and the issue of TDIU on an extraschedular basis effective November 30, 2010 was granted. The issue before the Board therefore is whether the Veteran is entitled to an earlier effective date for the award of TDIU on an extraschedular basis prior to November 30, 2010. After review, the Board finds that an effective date of April 1, 2007 is warranted for TDIU on an extraschedular basis. Here, the Veteran submitted a private medical opinion from Dr. M. Novak, dated in June 2011. The examiner opined that the Veteran's limited mobility due to limited range of motion, renders the Veteran not employable. The examiner stated that any physical vocation would be precluded and due to the severity of the Veteran's symptoms, extended sitting would also be impossible. As such, the examiner opined that sedentary work would be precluded. The examiner indicated that the Veteran's severe pain would impair the Veteran's focus and concentration preventing all types of employment. In addition, a Social Security Administration (SSA) determination found that the Veteran was disabled, due to his back disability, from April 1, 2007. Although SSA disability determinations are not binding on VA, they are probative evidence that must be considered and weighed in conjunction with the other evidence of record. See Collier v. Derwinski, 1 Vet. App. 413 (1991). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an award of TDIU is warranted from April 1, 2007, the date the record establishes that he was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the Board finds the preponderance of the evidence is against a finding that the Veteran was precluded from securing and/or following substantially gainful employment prior to April 1, 2007. Here, the Board acknowledges that the Veteran reported that he stopped working as a factory worker/foreman in 2003 due to his spine condition. See October 2011 VA Form 21-8940. However, this declaration is inconsistent with his Social Security Administration (SSA) application, in which the Veteran indicated that he became unable to work from September 1, 2007. In addition, in a May 2005 VA treatment record, the Veteran indicated that he has been working more lately since a coworker had been unavailable and that he works in manual labor as a carpet installer. Furthermore, at an August 2011 VA examination, the examiner indicated that prior to 2008, the Veteran was a carpet installer and stopped working due to his low back. As a result, the Board finds that the facts documented within the TDIU application that differ from what he reported to SSA and medical examiners on file are not credible and an effective date prior to April 1, 2007 is not warranted. Stated differently, because the Veteran was performing substantially gainful employment prior to April 1, 2007, the Board finds the preponderance of the evidence is against a finding that the Veteran was precluded from securing and/or following substantially gainful employment prior to April 1, 2007. Accordingly, entitlement to a TDIU from April 1, 2007, but no earlier, is granted. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.