Citation Nr: 1127109 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 05-14 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated 70 percent disabling prior to April 25, 2007 and 100 percent disabling since that date. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 25, 2007. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1970. He received the Army Commendation Medal. The appellant is his surviving brother. These matters initially came before the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to an increased rating in excess of 50 percent for PTSD and denied entitlement to a TDIU. Jurisdiction over the Veteran's claims has remained with the RO in Wilmington, Delaware. In February 2007, the Board remanded these matters to: provide the Veteran with a notice letter in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) regarding his claims for an increased rating for PTSD and for a TDIU; obtain records of the Veteran's treatment for PTSD since February 2005 at the VA Medical Center in Wilmington, Delaware (VAMC Wilmington); and, if there was evidence that his PTSD may have worsened, schedule him for a new VA psychiatric examination to assess the severity of his PTSD. The Veteran was sent a VCAA notice letter in February 2007 which notified him of the evidence needed to substantiate his claim for an increased rating for PTSD and noted the issue of entitlement to a TDIU. Furthermore, all additional relevant VA treatment records from VAMC Wilmington were obtained and the Veteran was afforded a new VA psychiatric examination in March 2008. Although the February 2007 letter did not fully notify the Veteran of all the information and evidence required for a TDIU (such as the schedular requirements), the letter did acknowledge the Veteran's claim for a TDIU and noted that he could receive a 100 percent rating if he was unable to secure and maintain a gainful occupation because of his service-connected disabilities. Also, included with the letter was an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Thus, the agency of original jurisdiction substantially complied with all of the Board's February 2007 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required where there was substantial compliance with Board's remand instructions). In July 2008, the RO: granted an increased 70 percent rating for PTSD and granted a TDIU, both effective March 11, 2008. The RO thereby resolved the appeal as to entitlement to a TDIU for the period subsequent to March 11, 2008. In March 2010, the Board: granted an increased, 70 percent rating, from July 15, 2003 to April 24, 2007, and an increased 100 percent rating, from April 25, 2007, for PTSD; denied entitlement to a TDIU for the period from July 25, 2003 to April 24, 2007; and dismissed the appeal for entitlement to a TDIU for the period from April 25, 2007 to March 10, 2008 in light of the grant of an increased 100 percent rating for PTSD during that period. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran died in November 2010 prior to the promulgation of decision by the Court. In December 2010, the appellant filed a motion with the Court to be substituted as the claimaint before the Court. In January 2011, the Court granted the appellant's motion and he was substituted as the appellant before the Court. In April 2011, the Court vacated the Board's decision, in part, and remanded the case for readjudication in compliance with directives specified in an April 2011 Joint Motion filed by counsel for the appellant and VA. The Joint Motion specified that the parties only sought remand as to those portions of the Board's decision that denied entitlement to an increased 70 percent rating prior to July 15, 2003 and an increased 100 percent rating prior to April 25, 2007, for PTSD, and denied entitlement to a TDIU prior to April 25, 2007. In December 2010, the appellant filed a motion with the RO to be substituted for the Veteran in the instant appeal. Under 38 U.S.C.A. § 5121A (West Supp. 2011) persons who would be eligible for accrued benefits may be substituted for a Veteran who dies during the pendency of an appeal. The appellant has submitted evidence that he may have been responsible for some of the expenses of the Veteran's last illness. As such, he would be eligible for accrued benefits. Id. In light of this evidence, and the Courts actions, the motion for substitution is granted. FINDINGS OF FACT 1. From July 15, 2003 to March 10, 2007, the Veteran's PTSD was manifested by impairment in most of the areas of work, school, family relations, judgment, thinking, and mood with Global Assessment of Functioning (GAF) scores ranging from 42 to 50, indicative of serious impairment. 4. At the time of his death, the Veteran's PTSD had been manifested by near total occupational and social impairment with GAF scores ranging from 20 to 38, indicative of gross to serious impairment, since March 11, 2007. 5. At the time of his death, the Veteran was service-connected for PTSD, now rated 70 percent disabling from July 15, 2003 to March 10, 2007 and 100 percent disabling since March 11, 2007. 6. The Veteran had a high school education and had varying periods of gainful employment prior to March 11, 2007 at the Sunday Breakfast Mission, Goodwill, and Industrial Metal Treating, and as a landscaper and painter. He had periods of unemployment due to such factors as alcoholism, incarceration, and having a suspended driver's license. 7. The Veteran's service-connected PTSD did not preclude gainful employment consistent with his education and occupational experience prior to March 11, 2007. 8. As applicable to the period from March 11, 2007 to April 24, 2007, a TDIU is a lesser benefit than a 100 percent rating for PTSD, and the claims for a TDIU and an increased rating for PTSD arose at the same time and are premised on the same evidence. CONCLUSIONS OF LAW 1. The criteria for an increased 70 percent rating for PTSD, for purposes of accrued benefits, were met from July 15, 2003 to March 10, 2007. 38 U.S.C.A. §§ 1155, 5101(a), 5107(b), 5110, 5121, 5121A (West 2002); 38 C.F.R. §§ 3.321(b)(1), 3.400, 3.1000, 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411 (2010). 2. The criteria for an increased 100 percent rating for PTSD, for purposes of accrued benefits, have been met since March 11, 2007. 38 U.S.C.A. §§ 1155, 5101(a), 5107(b), 5121, 5121A; 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, 4.132, Diagnostic Code (DC) 9411. 3. The criteria for a TDIU due to service-connected PTSD prior to March 11, 2007, for purposes of accrued benefits, were not met. 38 U.S.C.A. §§ 5101(a), 5107(b), 5121, 5121A; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2010). 4. The grant of a 100 percent rating for PTSD renders moot the appeal for a TDIU, for purposes of accrued benefits, for the period from March 11, 2007 to April 24, 2007. 38 U.S.C.A. §§ 1155, 5101(a), 5121, 5121A; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, as amended, and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a February 2007 letter, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for PTSD and noted the issue of entitlement to a TDIU. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the February 2007 letter complied with this requirement. The Veteran has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claims, in the February 2007 letter. The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Court further held that if the diagnostic code under which the Veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the Veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the Veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Id. Furthermore, the Court directed that as with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation -- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) vacated the Court's decision in Vazquez- Flores v. Peake insofar as it required VA, in increased ratings claims, to provide notice of alternative diagnostic codes or potential daily life evidence. Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Federal Circuit held that 38 U.S.C.A. § 5103(a) notice need not be Veteran specific, and that while impairment in activities of daily life may indicate impairment in earning capacity, the statutory scheme does not require such evidence for proper adjudication of a claim. Id. The February 2007 letter told the Veteran that evidence of worsening could substantiate the increased rating claim. He was notified that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples. The letter stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened. The February 2007 letter explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment. There was a timing deficiency in that the February 2007 letter was provided after the initial adjudication of the claim. This timing deficiency was cured by readjudication of the claim in a July 2008 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In its February 2007 remand, the Board instructed the agency of original jurisdiction to provide the Veteran with a VCAA notice letter regarding his claim for entitlement to a TDIU. Although the February 2007 letter did not fully notify the Veteran of all the information and evidence required for a TDIU (such as the schedular requirements), the letter did acknowledge the Veteran's claim for a TDIU and noted that he could receive a 100 percent rating if he was unable to secure and maintain gainful occupation because of his service connected disabilities. Also, included with the letter was an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Thus, the Board finds that the agency of original jurisdiction substantially complied with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required where there was substantial compliance with Board's remand instructions). Furthermore, the Veteran was notified of the information concerning a TDIU in an April 2005 statement of the case. Such a post-decisional document could not serve to provide legally compliant VCAA notice. Mayfield v. Nicholson, 444 F.4d 1328 (2006). It should, however, have served to put the Veteran on notice as to what evidence was required and he had years to submit additional evidence and argument. To the extent that the Veteran was not provided with pre- adjudication notice of some of the information required by the VCAA for his TDIU claim, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication. Id. See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful). No such showing of prejudice has been made here. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained all of the identified post-service VA treatment records. In addition, the Veteran was afforded VA examinations for PTSD and relating to his claim for a TDIU. The Joint Motion was for purposes of the Board providing additional reasons and bases for its decisions. This decision attempts to do so. The Joint Motion did not require additional evidentiary development. Although the appellant was granted the right to submit additional evidence, no additional evidence was submitted or suggested. Analysis PTSD Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. PTSD is rated under 38 C.F.R. § 4.130, DC 9411, according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances ( including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Period Prior to March 11, 2007 The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). VA treatment records dated from October 2002 to May 2003 indicate that the Veteran reported that he experienced serious depression and anxiety and difficulty understanding, concentrating, or remembering. He had significant periods in which he experienced serious problems getting along with others and was irritable with his girlfriend. Examinations revealed that his remote memory, judgment, and impulse control were poor and that his insight was minimal. He was assigned a GAF score of 50 during an October 2002 VA mental health assessment, indicative of serious impairment. An August 2003 VA examination report reveals that the Veteran reported that he was a carpenter by trade and worked intermittently in 1991. In approximately 1992 he worked at the Sunday Breakfast Mission in Wilmington, Delaware where he cut grass and did maintenance work in exchange for room and board. He reported that his sporadic job history was caused by his alcoholism and walking off jobs because he could not handle people yelling at him. He last worked in January 2003 and was looking for lawn cutting jobs at the time of the August 2003 VA examination, but was unable to find a job due to the long rainy season and his need to use public transportation. His only steady income was from VA. The Veteran also reported that he had been with his girlfriend for approximately two years and that their relationship was unstable. He had a serious argument with his girlfriend in December 2002, resulting in police involvement and the issuance of a no contact order until June 2003. He did not like being around people and his only friend was the associate director of the Sunday Breakfast Mission. He tended to be agitated and explosive, experienced difficulty sleeping (would wake up sweating and was unable to return to sleep), was hypervigilant, had an exaggerated startle response, and experienced flashbacks from Vietnam. He would occasionally wander through the woods near his home, during which time his brain would "go numb". Furthermore, he reported frequent sadness and occasional suicidal thoughts, but denied any suicidal intent or plan at the time of the August 2003 VA examination. Examination revealed that the Veteran had a dysthymic mood, a flat affect, and clear speech without any fluctuation in volume. His concentration was intact, but there were some signs of short term memory loss. His insight and judgement were fair. A diagnosis of chronic and severe PTSD was provided and the Veteran was assigned a GAF score of 42, indicative of serious impairment. The examiner who conducted the August 2003 VA examination noted that the Veteran was "quite impaired both socially and industrially." VA treatment records dated from September 2003 to October 2006 indicate that the Veteran reported that he experienced provoked and unprovoked anxiety attacks, hypervigilance, a hyperstartle response, feelings of numbness or detachment from others, activities, or his surroundings, and employment difficulties (working intermittently). The Board has considered the GAF scores assigned during this period. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). The evidence reflects that the Veteran had been assigned GAF scores ranging from 42 to 50. GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The evidence shows that for the period from July 15, 2003 to March 10, 2007, the Veteran's PTSD was manifested by deficiencies in most of the areas needed for a 70 percent rating. For example, he reported an intermittent job history due to problems with social interaction, had an unstable relationship with his girlfriend and did not like being around people, suffered from anxiety and depression, was hypervigilant and irritable, had poor impulse control, experienced panic attacks, intrusive thoughts, nightmares, and occasional suicidal thoughts, had chronic sleep impairment, and experienced memory loss, impaired concentration, and poor judgment. The Veteran did not, however, have most of the symptoms contemplated in the criteria for a 100 percent disability rating. For example, he worked intermittently and was not totally occupationally impaired. His VA treatment records dated in June and July 2006 indicate that he was unemployed and he reported that he had been unemployed since March 2006. However, an August 2006 VA addiction psychiatry treatment note reveals that he reported that he was a painter and had been in and out of work over the winter, but that he had begun working steadily because the season allowed him to work indoors and outdoors. An October 2006 VA addiction psychiatry treatment note also reveals that he was employed. Furthermore, the Veteran did not demonstrate gross impairment in thought processes or communication or grossly inappropriate behavior, he did not experience delusions or hallucinations, he was not in persistent danger of hurting himself or others, he was able to perform activities of daily living, and was oriented to time and place. While problems with the Veteran's memory had been reported, there was no indication of memory loss for names of close relatives, own occupation, or name. The Veteran is not entitled to an increased rating in excess of 50 percent for any period prior to July 15, 2003. The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(a),(b). The pertinent provisions of 38 C.F.R. § 3.400 clarify that: Except as otherwise provided, 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. (o)(2) Disability compensation. The 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 C.F.R. § 3.400(o). The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). The Veteran's claim for an increased rating for PTSD was received on July 15, 2003. Therefore, the effective date for any increased rating could potentially be any date between July 15, 2002 and July 15, 2003 if an increase in the disability was factually ascertainable at some time during that period (the effective date being the date the increase was factually ascertainable). A review of VA treatment records dated during the period from July 15, 2002 to July 15, 2003 reflects that the symptoms of the Veteran's PTSD did not approximate the criteria for a 70 percent rating at any time during this period. He occasionally reported depression, irritability, anxiety, paranoid thoughts, phobias, intrusive thoughts, nightmares, sleep difficulties, flashbacks, social isolation, a distant relationship with his brother, and irritability towards his girlfriend at various times. He was clinically found to have minimal insight and poor judgment. However, such symptoms were sporadically reported. The Veteran reported on several occasions that he had a girlfriend and was employed and did not report any work difficulties due to PTSD. Furthermore, there was no evidence of any suicidal ideation, obsessed rituals, impaired speech, panic attacks or depression which affected his ability to function independently, appropriately, and effectively, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances. The Board notes that the Veteran was assigned GAF scores of 50 on March 28, 2003 and July 15, 2003. However, the clinical evidence during this period was otherwise insufficient to show that the psychiatric symptoms persistently occurred in conjunction with one another so as to reflect occupational and social impairment with deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. In other words, an increased rating in excess of 50 percent was not factually ascertainable during the period from July 15, 2002 to July 15, 2003. Thus, the date that the Veteran's claim for an increased rating was received (July 15, 2003) is the earliest possible effective date for an increased 70 percent rating. One of the bases of the Joint Motion was that the Board had not discussed why an increased 70 percent rating for PTSD was not warranted prior to July 15, 2003 in light of the provisions under 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The Veteran's mental evaluations show that for the period from July 15, 2003 to March 10, 2007, he had been found to have serious impairment in occupational and social functioning in most of the areas of work, school, family relations, judgment, thinking, and mood, as evidenced by the GAFs and assessments of his level of disability. This symptomatology is contemplated by the 70 percent disability rating. Accordingly, the Board finds that a rating of 70 percent, but no higher, for PTSD, is warranted for the period from July 15, 2003 to March 10, 2007. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. Period Since March 11, 2007 In an April 2007 statement (VA Form 21-4142), the Veteran reported that he was unable to keep a job because of anxiety and that he experienced difficulties with thinking. VA treatment records dated in April 2007 indicate that the Veteran reported that he was a long distance truck driver, but that his license had been confiscated by the state. He had worked odd jobs at a carnival and "made a few dollars," but he had no money and could not even afford cigarettes. Overall, he was frustrated because of his inability to gain employment and he believed he was unemployable. Examination revealed a dysphoric mood and he was diagnosed as having, among other things, PTSD and depressive disorder. A VA examination report dated on March 11, 2008 indicates that the Veteran reported that he had been divorced from his second wife for 25 years and was living with his girlfriend of seven years. He had two grown children, but did not have any relationship with them. He did not have any close friends and did not socialize. Examination revealed soft/whispered speech, a constricted affect, and an anxious and depressed mood. The Veteran had passive and transient homicidal ideation, experienced interrupted sleep, had poor impulse control, was quick to anger, and had episodes of violence. He had persistent re-experiencing of in-service traumatic events as well as persistent avoidance of stimuli associated with those events (e.g., efforts to avoid activities, places, or people that arouse recollections of the event; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and a restricted range of affect, such as an inability to have loving feelings). Overall, the examiner who conducted the March 2008 VA examination concluded that the Veteran had moderate to severe symptoms of PTSD since his in-service trauma. As for the Veteran's employment, the March 2008 VA examination report reveals that his usual occupation was as a carpenter. He was unemployed at the time of the March 2008 VA examination and had been unemployed for the previous 2 to 5 years. He reported that he was fired after he lost his license due to driving under the influence (DUI) and that his unemployment was due to the effects of his PTSD (e.g., frequent arguments). The Veteran was diagnosed as having chronic, severe PTSD and a GAF score of 20 was assigned. The examiner noted that the Veteran's ability to relate to others had deteriorated, he was drinking excessively, and he had lost his license after a DUI, resulting in the loss of his job. He was quick to anger and was jailed after threatening someone three years prior. His PTSD symptoms were severe and had been present for the previous year, his social support was minimal, and his prognosis was poor. Overall, the examiner concluded that the Veteran experienced total occupational and social impairment due to his PTSD because he did not have effective coping skills to be able work with others, was quick to anger, and did not have optimal impulse control. A September 2008 VA discharge summary indicates that the Veteran was unemployed and had limited social support. He was assigned a GAF score of 38. The evidence reflects that the Veteran has been assigned GAF scores ranging from 20 to 38 since March 11, 2007. GAF scores ranging from 11 to 20 are indicative of some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasional failure to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32. In short, the evidence reveals that the Veteran had been unemployed and unable to function socially during this period. Although he did have some social contacts, the combination of his occupational and social impairment meet the criteria for a 100 percent rating. As the examiner who conducted the March 2008 VA examination reported that the Veteran's PTSD symptoms which are the basis for a 100 percent rating were present for the previous year and resolving reasonable doubt in favor of the appellant, the increased 100 percent rating is effective March 11, 2007 (one year prior to the March 2008 VA examination). 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.130, DC 9411. One basis of the Joint Motion was that the Board did not adequately discuss why an increased 100 percent rating was not warranted prior to April 25, 2007. Extraschedular Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "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). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The evidence indicates that the Veteran's PTSD interfered with his ability to maintain a job. For example, the March 2008 VA examination report reveals that he was unemployed, that his irritability and anger contributed to his job difficulties, and that he did not have effective coping skills to be able to work with others. This evidence raises the question of entitlement to an extraschedular evaluation. The symptoms of the Veteran's disability were depression, anxiety, impaired memory and concentration, poor impulse control and judgment, irritability, hypervigilance, sleep difficulties, panic attacks, flashbacks, suicidal/homicidal thoughts, and social/occupational impairment. These symptoms are contemplated by the rating criteria. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the time of the Veteran's death, service connection was in effect for PTSD, now rated 70 percent disabling from July 15, 2003 to March 10, 2007 and 100 percent disabling since March 11, 2007. He thus met the percentage criteria for a TDIU laid out in 38 C.F.R. § 4.16(a). The remaining question is whether the Veteran's service-connected PTSD precluded gainful employment for which his education and occupational experience would have otherwise qualified him. Period Prior to March 11, 2007 An October 2002 VA integrated assessment note indicates that the Veteran reported that he was working part time at the Sunday Breakfast Mission doing maintenance work. The August 2003 VA examination report reveals that the Veteran was a carpenter by trade and had worked intermittently in 1991. He worked at the Sunday Breakfast Mission in Wilmington, Delaware in approximately 1992 where he cut grass and did maintenance work in exchange for room and board. He reported that his sporadic job history was caused by his alcoholism and walking off jobs because he could not handle people yelling at him. He last worked in January 2003 and was looking for lawn cutting jobs at the time of the August 2003 VA examination, but was unable to find a job due to the long rainy season and his need to use public transportation. His only steady income was from VA. A December 2003 VA substance abuse counseling note reveals that the Veteran had been in jail for three weeks, had lost a job at Goodwill, and had no money. He was still unemployed at the time of an April 2004 VA mental health evaluation. A May 2004 VA telephone triage note indicates that the Veteran reported that he had just gotten a job. His VA treatment records dated from October 2004 to November 2005 reveal that he reported working full time as a truck driver since June 2004 and that he worked a lot of overtime. He was working 10 hours per day at the time of the February 2005 VA mental health evaluation and reported occasionally working 11 1/2 to 12 hour days, sometime for many days in a row, at the time of a May 2005 VA mental health evaluation. A July 2006 VA substance abuse treatment assessment note reveals that the Veteran was unemployed since March 2006 because his driver's license was suspended as a result of driving under the influence. An August 2006 VA addiction psychiatry treatment note indicates that the Veteran reported that he was a painter and had been in and out of work over the winter, but that he had begun working steadily because the season allowed him to work indoors and outdoors. An October 2006 VA addiction psychiatry treatment note also reveals that he was employed. The Veteran's April 2007 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) indicates that the Veteran reported that he had a high school education and that he worked at the Sunday Breakfast Mission until July 2003 and worked full time at Industrial Metal Treating as a truck driver from June 2004 to March 2006. He reported a monthly income of $450.00 as a truck driver and a yearly salary of $20,000 as a truck driver in 2005. The record reflects that the Veteran had a high school education and had varying periods of employment prior to March 11, 2007 with the Sunday Breakfast Mission, Goodwill, and Industrial Metal Treating, and as a landscaper and painter. While he was unemployed during parts of 2003 and 2006, the evidence indicates that this was primarily due to factors such as incarceration, a suspended driver's license due to driving under the influence, the effects of weather on seasonal work, and the Veteran's alcoholism. As for the effects of the Veteran's alcoholism on his employability, the examiner who conducted the March 2008 VA examination opined that the Veteran's history of alcohol abuse was secondary to PTSD. However, this opinion was unaccompanied by any further explanation or reasoning and is therefore of little, if any, probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Furthermore, the examiner did not review the Veteran's claims file prior to rendering the opinion and the opinion that alcohol abuse was "secondary" to PTSD appears to be based on an inaccurate history in that although the Veteran provided varying accounts as to the history of his alcohol abuse, he reported on numerous occasions that his alcohol abuse pre-existed his PTSD. For example, an October 1990 VA treatment report reveals that he reported that he started drinking at the age of 15, that his drinking had increased over the years, and that he had been drinking heavily for over 20 years. A November 1990 VA discharge summary also indicates that he reported that he began using alcohol at the age of 15 and that he had problems related to alcohol beginning prior to service at the age of 16. Also, a June 1997 VA discharge summary reveals that the Veteran reported a 32 year history of alcohol abuse. He was diagnosed as having alcohol dependence. The Board notes that the Veteran also reported at times that his alcohol use did not pre-exist service. For example, he reported during a January 1999 VA psychiatric examination that he began drinking while he was in the military. The Veteran was competent to report his history of alcohol abuse. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, in light of his inconsistent statements, the Board concludes that his reports as to the history of his alcohol abuse are not credible. In sum, there is no probative medical evidence of record that the Veteran's alcohol abuse was secondary to his service-connected PTSD and some of the Veteran's own reports indicate otherwise. Therefore, the evidence does not adequately support a conclusion that the Veteran's periods of unemployment from January 2003 to May 2004 and March to August 2006 were due to PTSD, to the extent that they were related to his substance abuse. One of the bases of the Joint Motion was that the Board had not discussed whether a TDIU was warranted during the Veteran's periods of unemployment from January 2003 to May 2004 and from March to August 2006 in light of his alcoholism and the March 2008 opinion that the alcoholism was secondary to PTSD. There is no evidence that the service-connected PTSD was any more severe during the periods of unemployment than they were either before or after these periods. Hence the weight of the evidence is against finding that a TDIU was warranted during the periods of unemployment. The Veteran was receiving a yearly salary of $20,000 in 2005 as a truck driver and there is no indication in the record that the Veteran earned less than a poverty level wage or that he received less than half of normal remuneration. 38 C.F.R. §§ 4.16(b), 4.17 (2010). Hence, his employment could not be considered to be marginal. For the foregoing reasons, the preponderance of the evidence is against the appellant's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for entitlement to a TDIU prior to March 11, 2007 must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. Period from March 11, 2007 to April 24, 2007 A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). The claim for a TDIU and an increased rating for PTSD have been recognized as arising at the same time and involving the same evidence. Hence the grant of a 100 percent rating for PTSD from March 11, 2007 renders the claim for a TDIU moot for the period from March 11, 2007 to April 24, 2007. The appeal as to the TDIU issue during this period is therefore, dismissed. ORDER Entitlement to an increased, 70 percent rating, from July 15, 2003 to March 10, 2007; and to an increased, 100 percent rating, from March 11, 2007 for PTSD, is granted. Entitlement to a TDIU prior to March 11, 2007, is denied. The appeal for entitlement to a TDIU from March 11, 2007 to April 24, 2007, is dismissed. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs