Citation Nr: 1223331 Decision Date: 07/05/12 Archive Date: 07/13/12 DOCKET NO. 00-23 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent prior to January 25, 1999, for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based on individual unemployability (TDIU) prior to January 25, 1999. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to September 1971. His decorations include the Combat Infantryman Badge and the Army Commendation Medal with an Oak Leaf Cluster and "V" device. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted an earlier effective date of March 5, 1975, for the Veteran's PTSD and assigned a 50 percent disability rating for the period prior to January 25, 1999. When this matter was initially before the Board in January 2009, the Board denied the Veteran's claim of entitlement to a disability rating in excess of 50 percent prior to January 25, 1999. The Veteran appealed the Board's January 2009 decision to the United States Court of Appeals for Veterans Claims (Court), which in a February 2010 order, granted the parties' joint motion for remand, vacating the Board's January 2009 decision and remanding the case for compliance with the terms of the joint motion. In August 2010, the Board remanded the case for additional development consistent with the parties' joint motion for remand. The case has now been returned and is ripe for adjudication. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The issue of entitlement to TDIU is raised by the record. Therefore, this issue is included on appeal, as noted on the title page. FINDINGS OF FACT 1. For the entire period prior to January 25, 1999, the Veteran's psychiatric disability manifested with no more than substantial inability to establish or maintain effective or favorable relationships with people and severe industrial impairment. 2. From February 3, 1988 to January 25, 1999, the Veteran's psychiatric disability manifested with no more than considerable impairment in the ability to establish or maintain effective or favorable relationships with people and considerable industrial impairment. 3. From November 7, 1996 to January 25, 1999, the Veteran's psychiatric disability manifested with no more than occupational and social impairment with reduced reliability and productivity. 4. For the period between March 5, 1975, and January 25, 1999, service connection was only in effect for PTSD rated 50 percent disabling. 5. PTSD did not preclude the Veteran from securing and maintaining substantially gainful employment between March 5, 1975, and January 25, 1999. CONCLUSIONS OF LAW 1. For the entire period prior to January 25, 1999, the criteria for an initial rating in excess of 50 percent for PTSD have been not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.126, 4.129, 4.130, 4.132, Diagnostic Code (DC) 9411 (1975, 1988, 2011). 2. Prior to January 25, 1999, the criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The claim for a higher rating for PTSD, to include the TDIU aspect of the claim, see Rice v. Shinseki, 22 Vet. App. 447 (2009), arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Finally, as to the TDIU aspect of this claim, in light of the Veteran's statements and the evidence he submitted indicating that he was entitled to a TDIU or 100 percent evaluation during this period, the Veteran has demonstrated his understanding of what was necessary to substantiate his claim, i.e., any notice defect was cured by the Veteran's actual knowledge. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, as the RO has confirmed and continued the denial of an evaluation in excess 50 percent, including most recently in the December 2011 Supplemental Statement of the Case, the RO has already implicitly denied entitlement to a TDIU. See Locklear v. Shinseki, 24 Vet. App. 311, 316(2011) (The award of a disability rating less than 100 percent generally provides notice as to how VA has rated a claimant's condition and serves as a final decision with regard to entitlement to any higher disability rating associated with the underlying disability, including TDIU.). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran's service and VA and private treatment records have been obtained. Records from the Social Security Administration (SSA) were also obtained. The Veteran was provided with a VA examination in February 2011 and a retrospective medical opinion was provided in October 2011. The examiner conducted a clinical evaluation in February 2011, reviewed the medical history, described the disability in sufficient detail for the period in question so that the Board's evaluation of the claimed disability is an informed determination, and provided findings that are consistent with the record. For these reasons, and for additional reasons discussed herein, the Board finds that the October 2011 VA retrospective opinion is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, this case was remanded by the Board for additional development in August 2011. There has been substantial, if not full, compliance with the Board's remand directives. Higher Rating The Veteran's PTSD disability is rated as 50 percent disability rating for the appeal period from March 5, 1975, to January 25, 1999. He seeks a higher rating. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where the appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As discussed below, the Veteran's PTSD disability has not manifested symptoms to warrant a rating higher than 50 percent at any time during the relevant rating period, thus staged ratings are not appropriate. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In March 1975, the schedular rating criteria did not include a diagnostic code for PTSD. 38 C.F.R. § 4.132 (schedule of ratings for mental disorders) (1974); see 45 Fed. Reg. 26326 (April 18, 1980) (the schedule for rating disabilities is being amended to include the new diagnostic classification of post-traumatic stress disorder). At that time, the general rating formula for psychoneurotic reaction contained criteria for evaluating mental disorders, such as PTSD, that are neither psychoses nor organic brain syndromes. 38 C.F.R. § 4.132 (general rating formula for psychoneurotic disorders) (1974). The schedular criteria for psychoneurotic disorders that were in effect at the beginning of the rating period at issue in this appeal were amended effective February 3, 1988. See 53 Fed. Reg. 23 (January 4, 1988). The criteria for rating mental disorders were again amended effective November 7, 1996; the November 1996 formula remains in effect. See 61 Fed. Reg. 52695 (October 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2009). As such, the Veteran's claim must be considered under all three sets of criteria. When the law governing a claimant's disability rating changes while on appeal, the claimant is entitled to have his claim considered under both sets of criteria to determine which set is more favorable, and to be rated under the more favorable rating. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Thus, three schedules of rating criteria are applicable to this appeal. The prior versions of the schedular rating criteria will be applied for the entire rating period from March 5, 1975, to January 24, 1999, but the current version of the criteria will be applied only from its effective date (November 7, 1996) to the end of the rating period (January 24, 1999). Under the General Rating Formula for Psychoneurotic Disorders, prior to February 3, 1988, a 50 percent evaluation was assigned when the ability to establish or maintain effective or favorable relationships with people was substantially impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in severe industrial impairment. A 70 percent evaluation is assigned when the ability to establish or maintain effective or favorable relationships with people was seriously impaired. The psychoneurotic symptoms were of such severity and persistence that there is pronounced impairment in the ability to obtain or retain employment. A 100 percent evaluation was assigned when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. Effective February 3, 1988, a 50 percent evaluation was assigned when the ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation was assigned when the ability to establish or maintain effective or favorable relationships with people is severely impaired. The psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, the Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, VA promulgated 38 C.F.R. § 4.16(c), effective March 1, 1989, which stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. See 54 Fed. Reg. 4280-01 (Jan. 30, 1989). 38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). Under the rating criteria that became effective November 7, 1996, a 50 percent evaluation is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened effect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is not warranted unless 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. The Board has reviewed the evidence of record that predates the effective date of service connection, which is March 5, 1975. However, for the sake of brevity and because the prior January 2009 Board decision included much of those findings, they will not be repeated in this decision. An October 1975 VA treatment note from psychology services reflects that the Veteran had benefited tremendously from treatment. He had graduated from junior college in good academic standing, apparently was not doing any hard drugs, and was using very little alcohol, if at all. He was living with a young woman and it was indicated that he probably would marry her. The note indicated that both the Veteran and the young woman were attending a university and were doing well. The note further reflected an opinion that the Veteran should be discharged from outpatient treatment and that no further treatment was indicated at that time. In a March 1979 letter to VA, the Veteran inquired as to whether he had any remaining educational allowance entitlement. He explained that he had attained a Bachelors of Science (B.S.) degree in psychology and would like to continue his education if possible. A copy of the Veteran's arrest record shows that he was arrested for driving under the influence (DUI) in March 1984. He also had two DUI arrests in 1972, and one in 1974. A June 1996 VA Alcohol Treatment Unit Screening report shows that the Veteran inquired about a substance abuse treatment program, but after talking with a nurse, he decided not to enter the program. An October 1997 VA treatment record shows that the Veteran sought out a psychiatric evaluation from VA emergency department. He explained that he had stopped drinking alcohol in December 1996 but was still experiencing mood swings. He stated that he questioned the motives of others. He also reported that he was working the night shift at Wal-Mart. The ER clinician found the Veteran to be appropriately groomed, euthymic and cooperative, with good eye contact. His mood was fine, speech was within normal limits, and there was no evidence of depression or manic or hypomanic episodes. In a September 1999 lay statement, the Veteran explained that in fall of 1975, he moved to Tallahassee and went to a Vet Center but could not bring myself to confide in them. He decided to study psychology in the hopes of better understanding himself and his world. He got a B.S. in psychology and felt he could manage his past on his own. He stated that he found life to be unmanageable at times and would return to the Vet Center, read all the information available there, have a brief exchange with a counselor or other veterans, but could not establish trust. He also reported that he and his wife had divorced in 1990. He further indicated that he moved to Northeast Tennessee in 1992, where life was simpler and slower, but he still was not happy after a year or so. Thus, he sought treatment from a psychiatrist at a VA facility who felt he was alright, but needed to practice moderation in his drinking. He also indicated that he went to alcoholics anonymous (AA) for several months while living in Tennessee and most of the time he feel like he was in survival mode. An October 1999 VA examination report shows that the Veteran reported that he had never held a job for more than two years. He held a job even less than that most of the time, quitting without knowing why he was doing it. Some of the places he had worked during the rating period included Wal-Mart, Sears, and a vending machine type of business. He also worked as a disaster assistant for the Small Business Administration from October 1998 to January of 1999. He also reported that he had been married for 16 years. The VA examiner determined that the Veteran's GAF score for the period from November 1998 to October 1999 was 57. The Veteran's SSA earning report shows that his income fluctuated widely from year to year. He had no SSA earnings from 1975 to 1977 when he was attending school. For four other years (1990, 1993, 1994, and 1995), he had no SSA earnings. For three years (1984, 1985, and 1998) he earned over $13,000, but for five years (1978, 1980, 1986, 1992, and 1996), he earned less than $1,000. For the remaining ten years, he earned more than $1,000 but less than $10,000. In March 2007, a private psychotherapist submitted an opinion to support the Veteran's claim for a higher rating for the period in question. The psychotherapist indicated that his evaluation was based upon the results of a clinical interview and review of the Veteran's medical records from 1970 to 2006. The evaluation report includes a synopsis of the Veteran's medical history during this period, although the documented medical history between January 1975 and March 1999 was scarce. In part, the psychotherapist stated that the Veteran had a well-documented history of severe mental illness both before and after the appeal period under review, as evidenced by therapists who documented severe pathology including suicidal ideation, impaired relationships, isolation, depression, panic attacks, impulse control, inability to communicate and more. This level of severity was also documented by numerous GAF scores that were almost always in a 45-50 range, which is evidence of severe symptoms. The psychotherapist concluded that the Veteran's PTSD should be rated at 70 percent from 1975 to 1999 based on the numerous clinician counseling reports and the numerous GAF scores. In February 2011, the Veteran was afforded a VA examination to obtain a medical opinion that retrospectively assessed the severity of his PTSD for the period covered by this appeal. The reviewing examiner was provided with a copy of the VA regulations governing the adjudication of psychiatric disability claims that were twice amended during the period between 1975 and 1999. The examiner conducted a clinical evaluation of the Veteran and also reviewed the claims file in its entirety. The February 2011 report contained findings related to the current severity of the Veteran's disability. In an October 2011 addendum, the examiner stated that the determination of the Veteran's level of functioning solely due to his PTSD was complicated by multiple factors, including his chronic drug and alcohol use, and characterological disordered features. For instance, on October 24, 1972 there was clinical documentation that the Veteran had a longstanding drug problem and a characterological disorder, as this is noted throughout his clinical records. The examiner further reported that a review of all available records indicates that treatment in the early 1970s was focused primarily on the Veteran's drug addiction (heroin). Treatment records from March 27, 1974 reflected improvement in the Veteran's symptoms noting, "in the absence of alcohol or drug abuse ... has evidenced a great deal of emotional maturity and become a very self-disciplined, responsible person... A very social, pleasant, likeable individual...," thereby suggesting significant improvement in functioning during periods of sobriety. There is no other record of mental health treatment through 1996. The Veteran's legal problems appear to coincide with periods of significant drug/alcohol use. He reported that his last DUI was in 1995, but that he had three others (1972, 1974, and 1984), along with a burglary charge in 1972. The Veteran completed a Social Security disability report in March 2002 on which he reported employment history from 1986 to 1999. During that timeframe, he reported multiple jobs, with no significant gap between jobs. However, a review of his Social Security earnings statement indicates periods of no income (1975-1977; 1990; 1993-1996) and that during taxed periods of earning he had a variable income. He was married from 1978-1990 during which there appeared to be no periods of unemployment and he reported being in a relationship with his wife for at least a 16-year periods from approximately 1974-1990. The examiner further stated that she could not retrospectively propose to assign GAF scores without resort to mere speculation, especially for periods of time for which there is no clinical documentation. However, based on a thorough review of the claims file and clinical documentation, which is often based on the Veteran's self-report, the following assumptions were made: For the periods from 1972 to 1974 severe impairment is shown, primarily due to alcohol/drug use and characterological disordered features as evidenced by clinical documentation at that time. From 1974-1990 there was none to minimal impairment. During this timeframe there was no evidence of mental health treatment. The Veteran developed and maintained a 16-year relationship with his ex-wife and children. While he reported having multiple jobs, his work history appears to have been relatively consistent. Also, records indicate that he reported a 10-year period of sobriety during the period from 1980 to 1990. Finally, for the period of 1990-1999 there was moderate impairment. During this timeframe, the Veteran reported returning to alcohol consumption resulting in a DUI in 1995 and subsequent SATP evaluation in 1996. In the late 1990's there is evidence that the Veteran returned to mental health treatment, but appeared to be functioning adequately overall. SSA records indicate period of no taxable income (1990; 1993-1996), although on his SSA disability report completed in March 2002, he reported a consistent work history (at multiple jobs) during this time. The examiner noted that the above assessment is offered noting that any attempt to conduct a retrospective assessment of an individual's functioning due to solely to PTSD is speculative at best, especially when there are complicating factors, such as the Veteran's chronic drug and alcohol dependence and characterological disordered features as noted throughout clinical documentation. Based on the evidence, the Board finds that a disability rating in excess of 50 percent is not warranted for the entire period prior to January 25, 1999. In reaching this decision, the Board has considered the Veteran's disability in the context of the whole recorded history. See generally, 38 C.F.R. §§ 4.1, 4.2. However, the extent of impairment from the initial effective date (i.e. March 5, 1975, to January 25, 1999) is the primary focus of the Board's analysis in this case. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The Board has also considered the disability under the criteria in effect prior to February 3, 1988, the criteria effective on that date, and those effective November 7, 1996. See 38 C.F.R. §§ 4.130, DC 9411 (1987, 1998, 2011). With this in mind, the Board finds that for the entire period prior to January 25, 1999, the Veteran's psychiatric disability manifested with no more than substantial inability to establish or maintain effective or favorable relationships with people and severe industrial impairment. From February 3, 1988 to January 25, 1999, the Veteran's psychiatric disability manifested with no more than considerable impairment in the ability to establish or maintain effective or favorable relationships with people and considerable industrial impairment. The limited evidence available for these periods reflects that the Veteran was able to develop and maintain a 16-year relationship with his wife from 1974 to 1990, at which time they became estranged, but by the Veteran's own report this was because she was pregnant with another man's child. The Veteran was also able to successful maintain a relationship with his children during this timeframe. There also is no evidence or report of any difficulties with social functioning while attending college classes and obtaining his B.S. degree in psychology. The evidence further reflects that his psychiatric symptoms were not of such severity and persistence that there was either pronounced or severe impairment in the ability to obtain or retain employment between 1975 and 1999. The VA examiner has opined that from 1975 to 1990 the Veteran's work history appears to have been relatively consistent despite having multiple jobs. The VA examiner also determined that from 1975-1990 there was none to minimal impairment overall and from 1990 to 1999 there was no more than moderate impairment overall. In addition, the examiner opined that while SSA records indicate period of no taxable income (1990; 1993-1996), the Veteran reported a consistent work history (at multiple jobs) during this time on his SSA disability report completed in March 2002. The Board further finds that for the period from November 7, 1996 to January 24, 1999, the Veteran's psychiatric disability was productive of no more than occupational and social impairment with reduced reliability and productivity, which is reflected in the current 50 percent rating assignment. The preponderance of the evidence in this case does not reflect that the Veteran's psychiatric disability was manifested by occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood so as to warrant the next higher rating of 70 percent. See, 38 C.F.R. §§ 4.130, DC 9411 (effective November 7, 1996). As noted, the available evidence is scarce at best, but there is no specific evidence of suicidal ideation, obsessional rituals, abnormal speech, near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene. The October 1997 emergency treatment record shows that he was appropriately groomed with normal speech and no evidence of depressive or manic episodes. The retrospective VA medical opinion is competent and probative evidence of the severity of the Veteran's disability during this timeframe. The VA examiner has opined that there was no more than moderate impairment overall during this time based on her medical expertise and review of the evidence available. The Board has considered the private psychotherapist's opinion that the Veteran's PTSD should be rated at 70 percent from 1975 to 1999 based on the numerous clinician counseling reports and the numerous GAF scores; but finds the October 2011 VA opinion to be more persuasive with respect to the Veteran's level of impairment during this period. See generally, Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this respect, the Board notes that the private opinion was largely supported by findings outside of the appeal period in question (ie. prior to March 1975 and after January 1999), and it is the period between March 1975 and January 1999 that is of particular relevance in this case. Indeed, the Veteran's psychiatric disability has been staged so as to reflect the different levels of impairment during specific time periods. In contrast, the October 2011 VA retrospective opinion was primarily focused on, and supported by, the clinical and lay evidence during the specific appeal period under review although the examiner did include some discussion of pertinent evidence that was outside of the appeal period. Further, while the private psychotherapist supported his opinion with reference to the Veteran's GAF scores, the Board notes that the only GAF score that relates to the rating period at issue was the GAF score of 57 provided by the October 1999 VA examiner. (The examiner indicated that this was the GAF score for the period one year before that examination, which includes the period of October 1988 to January 1999). That score reflects moderate symptoms or moderate difficulty in social, occupational, or school functioning, which is consistent with the Veteran's 50 percent disability rating during this period. All of the other GAF scores noted in the record were assigned during the period after January 24, 1999. Finally, the VA opinion discussed the Veteran's documented difficulties and treatment with substance abuse during the timeframe in question, which was not addressed by the private psychotherapist. Thus, the VA opinion reflects a more comprehensive discussion and analysis of the cumulative evidence of record. In the Veteran's attorney April 2012 statement, it is argued that the VA retrospective medical opinion is inadequate for several reasons. First, it is averred that the examiner only considered the impairment to functioning caused by the service-connected PTSD, and not the impairment caused by anxiety, when in fact the Veteran was service-connected for anxiety from March 1975 to April 1980. Second, his attorney argues that the opinion is based on an inaccurate factual premise because the examiner did not consider the psychiatric records dated prior to 1974. Third, and finally, it is averred that the examiner failed to provide a complete rationale for her conclusion that the Veteran had consistent employment when the record specifically reflects that he was unemployed from 1975 to 1977. In finding the VA opinion to be adequate for rating purposes, the Board points out that the Veteran has not been service-connected for anxiety at any point in time during the appeal. Rather, an October 1999 rating decision represents the initial award of service connection for a psychiatric disability, characterized and rated as PTSD. The Board notes that at that time the RO evaluated the Veteran's PTSD under the then-current version of 38 C.F.R. § 4.130, DC 9411. However, when he was later awarded an effective date back to 1975, the disability was evaluated using the general rating formula for psychoneurotic reaction as in effect in 1975, which contained criteria for evaluating mental disorders that were neither psychoses nor organic brain syndromes, such as PTSD. See 38 C.F.R. § 4.132 (general rating formula for psychoneurotic disorders). Further, the VA examiner's opinion reflects consideration of the cumulative level of functional impairment by the Veteran's PTSD, as well as the complicating factors of his drug and alcohol use. Indeed, she specifically acknowledged that the Veteran's chronic drug and alcohol dependence and characterological disordered features were complicating factors in his overall impairment and that any attempt to separate these would require resorting to speculation. Second, the VA examiner's opinion reflects notation and discussion of the medical evidence dated prior to 1974, such that the attorney's argument in this respect is completely without merit. The attorney's third and final argument is also without merit, as record reflects, and the Veteran acknowledges in his handwritten annotations to his SSA earning report, that he was attending SPJC and Florida State University between 1975 and 1977. Indeed, an October 1975 VA psychology services treatment note reflects that the Veteran had recently graduated from junior college (SPJC) in good academic standing. Based on the totality of the record, and the findings discussed herein, the Board finds that entitlement to an evaluation in excess of 50 percent, under the criteria in effect prior to February 3, 1988, the criteria effective on that date, as well as those effective November 7, 1996, has not been shown at any time during this particular appeal period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The record shows that the very symptoms manifested by the Veteran's PTSD as discussed above are included in the schedular rating criteria for PTSD both under the prior versions and the current version of the rating criteria. The PTSD disability has been productive of no more than moderate occupational and social impairment, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's PTSD disability and referral for consideration of extraschedular rating is not warranted. TDIU 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 (2011). 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 (2011). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2011). 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). Marginal employment shall not be considered substantially 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 scheduler criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. 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 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. 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). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). For the period between March 5, 1975, and January 25, 1999, the Veteran was only service-connected for PTSD rated at 50 percent. Therefore, the Veteran did not meet the minimum schedular threshold requirement (of a single disability rating of 60 percent or more) to be considered for a TDIU rating. 38 C.F.R. § 4.16(a). As noted a TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). 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 of the Compensation and Pension Service for extraschedular consideration. In this case, the RO did not submit the Veteran's TDIU claim to the Director of Compensation and Pension for extraschedular consideration. Thus, the question becomes whether the Board should remand this case to the RO for submittal of the claim to the Director of the Compensation and Pension Service for extraschedular consideration. The Board acknowledges that the Veteran exhibited some occupational impairment due to his service-connected PTSD disability for the period prior to January 25, 1999, as evidenced by his 50 percent rating. However, on careful review of all the evidence, the Board finds that such impairment is adequately reflected in the 50 percent disability evaluation assigned for the period under review. Here, the Veteran's SSA earning report shows that his income fluctuated widely from year to year between March 1975 and January 1999. He had no SSA earnings from 1975 to 1977, but this is during the time that he was attending school. The Board finds that the February 2011 retrospective medical opinion is sufficient to address whether the Veteran unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD between 1975 and 1999. The examiner opined that from 1975-1990 there was none to minimal impairment from the PTSD, and while the Veteran reported having multiple jobs, his work history appears to have been relatively consistent. The examiner further opined that for the period of 1990-1999 there was only moderate impairment from PTSD and the Veteran otherwise appeared to be functioning adequately overall. The examiner also noted that while SSA records indicated period of no taxable income (1990; 1993-1996), the Veteran reported a consistent work history (at multiple jobs) during this time on a SSA disability report that he completed in March 2002. The Board finds that opinion to be persuasive as the examiner reviewed the Veteran's medical history, described the disability in sufficient detail for the period in question so that the Board's evaluation is an informed determination, and provided findings that are consistent with the record. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only other opinion of record that attempts to retroactively address the Veteran's social and occupational functioning is the March 2007 private psychotherapist's opinion. However, the Board again notes that the opinion was largely supported by findings outside of the appeal period in question (i.e. prior to March 1975 and after January 1999), and it is the period between March 1975 and January 1999 that is of particular relevance in this case. Thus, the March 2007 opinion is less persuasive as to the Veteran's level of employability during the appeal period in question. Based on the available evidence, the Board finds that the Veteran's service-connected PTSD is not shown to have caused him to be unemployable from March 5, 1975, to January 25, 1999. Thus, referral of this claim to the Director of the Compensation and Pension Service for extraschedular consideration is not warranted. ORDER Prior to January 25, 1999, an evaluation in excess of 50 percent for PTSD is denied. Prior to January 25, 1999, entitlement to TDIU is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs