Citation Nr: 1317491 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 04-16 852A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 24, 2003. 2. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU) prior to February 24, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2010, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge held at the RO. A copy of the transcript from that hearing is associated with the claims file. The Veteran's appeal was remanded by the Board in August 2010. Therein, the RO was directed to send the Veteran an updated duty to assist letter noting the provisions of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); this was accomplished in August 2010. The RO was requested to obtain all relevant outstanding VA treatment records; this was also accomplished in August 2010. The RO was instructed to obtain the court findings from the Elmore County, Alabama judiciary system; these were obtained in October 2010. Finally, the RO was asked to schedule a new VA examination; this was conducted in November 2010. Accordingly, the Board finds that there was substantial compliance with the directives of the August 2010 Remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In a January 2012 decision, the Board, among other things, denied a rating in excess of 50 percent for PTSD) prior to February 24, 2003. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2013, the Secretary and the Veteran in a Joint Motion for Remand (JMR) agreed to vacate the Board's decision on the issue of a rating greater than 50 percent for PTSD prior to February 24, 2003 and remanded the case to the Board for additional action. The JMR also directed the Board to consider entitlement to a TDIU prior to February 24, 2003. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the claim for an increased rating for PTSD was received on September 27, 2001, so the period in question for the PTSD rating claim and for the TDIU claim is from September 27, 2001, to February 24, 2003. Claims for service connection for hypertension, ischemic heart disease, and loss of the Veteran's right foot, along with an application for automobile or other conveyance and adaptive equipment, and an application for specially adapted housing or special home adaptation grant were received in August 2012. These matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to TDIU prior to February 24, 2003, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to February 24, 2003, the most competent and credible evidence of record showed that the Veteran's PTSD acting alone, and without regard to the adverse symptomatology caused by his non service connected poly-substance abuse, was not productive of more than occupational and social impairment with reduced reliability and productivity nor did it show that it prevented employment. CONCLUSION OF LAW Prior to February 24, 2003, the criteria for a rating greater than 50 percent for PTSD have not been met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. § 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5102(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status. The Board finds that letters dated in June 2003, March 2006, and August 2010 which were provided to the Veteran were adequate 38 U.S.C.A. § 5103(a) notice including adequate notice in accordance with the Court's holding in Dingess, supra, regarding the type of evidence necessary to establish disability ratings and effective dates. To the extent that the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the July 2011 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d 1333-34. The Board also finds that even if the above letters did not provide the Veteran with adequate notice, this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters, the rating decision, the statement of the case, and the supplemental statements of the case. See Shinseki v. Sanders, 129 S. Ct, 1686 (2009). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the April 2010 Board hearing, the Veteran was assisted at the hearing by an accredited representative. The representative and the Acting Veterans Law Judge asked questions to ascertain the extent of the adverse symptomatology over the rating period due to his service connected PTSD. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claims files all identified and available post-service records including his records from the Veteran's Central Alabama VA Health Care System as well as the Montgomery, Tuskegee, Augusta, and Batavia VA Medical Centers, the Social Security Administration, and the court findings from the Elmore County, Alabama judiciary system, in compliance with the Board's remand instructions. 38 U.S.C.A. § 5103A(b), 38 C.F.R. § 3.159; Stegall, supra. The Veteran was also afforded a VA examination in September 2002 which is adequate for rating purposes and includes comprehensive examination findings that allow the Board to rate the severity of his disability under all relevant Diagnostic Codes after a review of the record on appeal. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The PTSD Claim The Veteran asserts that his PTSD warrants a higher rating than 50 percent prior to February 24, 2003. It is also requested that the Veteran be afforded the benefit of the doubt. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Although the evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App.482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 428, 433 (1995). The Veteran's PTSD (Diagnostic Code 9411) is rated as 50 percent disabling prior to February 24, 2003, under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula. A 70 percent rating is warranted where the disorder is manifested by 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 that is 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 work-like setting; and an inability to establish and maintain effective relationships. Id. The maximum 100 percent rating is warranted where the disorder is manifested by 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; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2012). The rating agency shall assign an evaluation 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. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). Further, ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (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 (1996). A GAF of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A GAF score of 41-50 is assigned where there are "[s]erious 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. A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. In adjudicating the claim, the Board has reviewed all of the evidence in the Veteran's claims file including any found in virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Also in adjudicating the claim, the Board notes that in Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), the Court held that "when it is not possible to separate the effects of the [service-connected condition and the non-service-connected condition], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition. 61 Fed. 52698 (Oct. 8, 1996)." In this case, however, because the examiner in September 2002 was able to distinguish between the symptoms attributable to the service-connected PTSD and non-service-connected substance abuse, the Board finds that the Mittleider doctrine is not for application and the severity of the Veteran's PTSD will be ascertain solely on its adverse symptomatology. The evidence does not support greater than a 50 percent rating during the appeal period prior to February 24, 2003. An August 2001 VA medical record notes that the Veteran reported being disabled to work and that he could not hold a job and that he last worked in 1998 as a custodian. He reported 2 years of college education and one year of trade school in commercial sewing. He reported contact with his children and his family. He stated that his medication was not working since it had been changed. He did not sleep well at night and had nightmares and flashbacks and heard voices. He stated that he had been thinking about hurting himself, and that he started using illegal drugs because his medication was not working. He presented due to ineffective coping, and it was reported that he needed to be reevaluated and stabilized on medication. The evaluator noted him to be alert and oriented times 3, with a flat affect, clear and coherent speech, appropriate behavior, and fair insight and judgment. A September 2001 addendum indicates that the Veteran had been admitted due to complaints of substance abuse, suicidal/homicidal ideations, and depression. He reported that he had spent $200 on crack cocaine on the Friday prior to admission. He was independent with activities of daily living. On VA evaluation in April 2002, a history of depression was noted but the Veteran was alert and oriented times 3 and there were no psychiatric abnormalities noted. He requested a vacuum pump for impotence. On VA psychiatric examination in September 2002, the Veteran was cleanly groomed and dressed in casual clothing, and while he indicated that his daughter drove him to the examination, his daughter indicated that he did the driving. He evidenced good self-care in terms of neatly trimmed facial hair, and his teeth and gums reflected good oral hygiene. He appeared to make an effort to not perform well on tasks to assess his cognitive functioning. He was able to repeat 4 digits forward and to repeat 3 backwards, and to identify 3 presidents who had served during his lifetime, not including the current president. He was able to describe his preceding day's activities, with some specificity, indicating adequate memory ability. He was presented 4 word problems that required mental arithmetic calculations, and he was able to solve 2 of them. He was oriented to person, place, situation, and purpose of the examination. He occasionally smiled and spoke spontaneously. He was initially anxious, as reflected by body tension and tightness of voice. His responses to questions reflected mild cooperation and mild effort applied to answering questions. Rate of speech was normal, and mental processing did not appear to be slowed based on response latency. Speech content indicated logical thinking and a normal flow of ideas. It also reflected difficulty acknowledging street-drug use and alcohol abuse. This was manifested by elaborate, discordant explanations and vague answers when this topic was addressed. The Veteran denied any current homicidal or suicidal thoughts, feelings, intent, or plan. Memory for recent and remote events was intact. Attention abilities were fair. The Veteran demonstrated concrete thinking in his explanations of sayings and his identification of the commonality shared by 2 items. Judgment and insight were poor. The Veteran described the preceding day's activity. The previous day, he got up, took his medication, and laid back down. Then he went to the store and bought steaks and macaroni. He did not watch television much. His brother in law and sister in law came over and he and his wife talked with them for a while. Then the noise kind of bothered him and he went back into the bedroom and laid down. He later got up, ate, read the newspaper, and then went back to bed. He had not taken a sleeping bill because of an appointment the following morning. He stated that otherwise, if he takes a sleeping pill, he is drowsy. He reported extensive polysubstance abuse in the past year and his wife placing him out of the home as a consequence, and his attempt at recovery. His reports indicated that he had mostly likely resumed polysubstance abuse and was feeling guilty and regretful about it. Specifically, he stated that it hurts and that he could not get right. He was applying for an increase because he wanted to take his family to "another level". He did not give any other explanation for why he was seeking an increase in terms of PTSD disability. It was noted that he had gone to the VA in September 2001 for reevaluation of medication because he was still having substance abuse problems. Thereafter, he was in a program for the homeless, stayed in a dormitory, got a job, and put money aside. He worked at a canned goods factory for 10 days, and at Goodwill Industries for 2 weeks, testing electrical appliances. In February, he called his wife and promised he would no longer use drugs and that he loved them and wanted to come home, and he was released from the homeless program. He was straight from February until June or July, because he was glad to be back home and was not using drugs, and he felt like somebody cared for him. In July 2002, he quit attending monthly Alcoholic Anonymous meetings in Tuskegee and then things started changing. He explained that he would go somewhere and come back, and felt like the family thought he was doing something he should not be doing, and that they were talking about him, and he started withdrawing. His daughter stated that the Veteran was straight one week, then talking crazy the next, like a split personality. She said this had been his style as long as she had known him. He could be straight for a week or 2, and then he would begin talking crazy and stay in his room and stay away from everyone. The Veteran reported that he had abused crack, marijuana, and alcohol. He reported that he had not worked since he returned to Montgomery in February. He stated that he was not able to work because "[t]he medications shut me down, ain't too much I can do." The examiner stated that due to the Veteran's history of and most likely current use of polysubstances, it was unlikely that he was capable of managing his financial benefits in his own interest. In the clinical impression, the examiner stated that the Veteran's symptoms of PTSD were not reported as problematic or numerous or severe. It appeared that his impairments were, at least currently and recently, due to polysubstance abuse. The diagnosis was polysubstance abuse, and PTSD was not diagnosed. The current global assessment of functioning was 55, for moderate symptoms. The highest level of functioning in the past year had been 70, and the lowest level had been 35. The functional ratings that were presented were based in terms of impairment due to polysubstance abuse. During the time period at issue, the Veteran had normal speech abilities and good hygiene and dressing when seen, with only mild anxiety and some depression. While the Veteran reported suicidal and homicidal ideations, there is no indication that these were due to his PTSD. To the contrary, the examiner in September 2002 diagnosed polysubstance abuse and not PTSD and the self-harm/homicidal/suicidal ideations had immediately followed his purchase of $200 worth of crack cocaine in August 2001. The Veteran was alert and oriented times 3 on VA evaluation in April 2002, with no psychiatric abnormalities noted, and he requested a vacuum pump for impotence, suggesting he wanted to be intimate. He was cleanly groomed and dressed in casual clothing in September 2002, with good self care evident. He had adequate memory and smiled and spoke spontaneously and his initial anxiousness went away. His speech rate and content were normal and he denied current homicidal and similar thoughts. The VA PTSD examiner concluded that the Veteran's symptoms of PTSD were not problematic, numerous, or severe. It appeared that his impairments were due to polysubstance abuse. Similarly, the sole GAF score assigned was 55, with the GAF range noted as 35-70 in the past year; both were attributed to his polysubstance abuse. The symptoms the Veteran did report secondary to his PTSD, to include nightmares, flashbacks, insomnia, anxiety, and depression, are all contemplated by the currently assigned 50 percent rating. While the Veteran reported that he was not able to work because the medications shut him down and there was not too much he could do, while he was not on drugs, he worked in a canned goods factory and then for Goodwill Industries, testing electrical appliances, after his medications were adjusted for him in August 2001. This contradicts and is more probative than any assertion that his PTSD/medications prevented him from working or impaired him more than 50 percent prior to February 24, 2003. The most competent and credible evidence of record indicates that the Veteran's service-connected PTSD was not producing or nearly approximating occupational and social impairment with deficiencies in most areas, or total occupational and social impairment prior to February 24, 2003. Accordingly, greater than a 50 percent rating prior to February 24, 2003, is not warranted. See 38 C.F.R. § 4.130, Diagnostic Code 9411. This is true throughout this period of time and therefore further consideration of staged ratings is not warranted. Hart, supra. Conclusion The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization making the application of the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(2) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id, at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id, at 116. The schedular rating in this case is adequate prior to February 24, 2003. Ratings in excess of that assigned are provided for certain manifestations of PTSD, but the medical evidence reflects that those symptoms were not present then in this case. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's disability. As noted above, PTSD is rated under the General Rating Formula according to the level of social and occupational impairment caused by the mental disability. In this case, the demonstrated levels of social and occupational impairment are adequately contemplated by the schedular criteria which allow for higher ratings for more severe impairment. Therefore, the Veteran's disability picture is contemplated by the rating schedule; no extraschedular referral is required. This is true throughout the period of time during which his claim has been pending prior to February 24, 2003. Hart, supra. As to the lay claims by the Veteran and his representative, while the claimant is competent and credible to report on what he can feel and not feel and his representative is competent and credible to report on what he can see, the Board finds more competent and credible the expert opinions provided by his VA examiner regarding the severity of his PTSD symptomatology than any lay claims to the contrary by the claimant or his representative. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Because the evidence shows that the Veteran's PTSD produced no more than occupational and social impairment with reduced reliability and productivity prior to February 24, 2003, the preponderance of the evidence is against the assignment of higher rating than 50 percent prior to February 24, 2003. There is no doubt to be resolved, and a higher rating is not warranted. See 38 C.F.R. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating greater than 50 percent for PTSD prior to February 24, 2003, is denied. REMAND The Court's January 2003 order requires VA to consider whether a TDIU rating is warranted prior to February 24, 2004. Review of the record reveals that service connection was in effect for PTSD and diabetes mellitus prior to February 24, 2003, with PTSD properly rated as no more than 50 percent disabling and diabetes mellitus rated as 20 percent disabling from May 8, 2001. A review of the record reveals that the Veteran was not furnished notice of what the evidence must show to establish TDIU in association with his claim for an increased rating for PTSD, and the matter of entitlement to TDIU prior to February 24, 2003, has not been considered by the RO in the first instance. Accordingly, a Remand to provide him with such notice and initial review of TDIU prior to February 24, 2004, should be furnished to the Veteran, to accord him every consideration. Next, the record as it stands does not include a VA medical opinion on the matter of whether the Veteran's PTSD, combined with his diabetes mellitus, rendered him unemployable at any time between September 27, 2001, and February 24, 2003, and the record as it now stands shows TDIU awarded from February 24, 2003, when the Veteran's disability rating for PTSD was increased to 70 percent and his diabetes mellitus -- his only other service-connected disability -- was 20 percent. Accordingly, the Board finds that a remand to obtain a medical opinion on this question is necessary in order to comply with VA's duty to assist the Veteran under 38 C.F.R. § 3.159. In providing the TDIU opinion, the examiner should take into account the fact that, among other things, the Veteran contended that his PTSD was rendering him unemployable or very close to unemployable at the September 2002 VA examination, but the record at this time also revealed that, while he was admitted to a VA facility in August 2001 because of cocaine abuse, after his medications were stabilized and he was discharged he was able to work in a canning factory and as an appliance tester. The examiner should also take into account the fact that the September 2002 VA examiner did not render a diagnosis of PTSD, but instead diagnosed polysubstance abuse. Accordingly, this issue is REMANDED to the RO/AMC for the following actions: 1. Provide the Veteran with VCAA notice and assistance concerning his claim for a TDIU from September 27, 2001, and February 24, 2003. See Dingess, supra. 2. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with a TDIU examination conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to the examiner and all appropriate tests should be performed. The examiner must thereafter provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities (PTSD and diabetes mellitus during), alone or in the aggregate, rendered him unable to secure or follow a substantially gainful occupation at any time from September 27, 2001, to February 24, 2003, and if so, when during this time period. In providing an answer to the above question, the examiner should not consider his non service connected poly-substance abuse and his age. In providing an answer to the above question, the examiner should considering the Veteran's 2 years of college education, 1 year of trade school, and work experience as a custodian, in a canning factory, and as an electrical appliance tester In providing an answer to the above question, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disorders, such as it making it difficult or impossible to work as reported to the September 2002 VA examiner even when her records are negative for symptoms and that the record in August 2001 revealed that, while he was admitted to a VA facility because of cocaine abuse, after his medications were stabilized and he was discharged he was able to work in a canning factory and as an appliance tester. The examiner should also take into account the fact that the September 2002 VA examiner did not render a diagnosis of PTSD, but instead diagnosed poly-substance abuse. In providing an answer to the above question, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. If the examiner cannot provide an answer to the above question, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 3. After completion of the above, the RO/AMC should review the expanded record. If the evidence shows that it is at least as likely as not (a probability of at least 50 percent) that the Veteran was unemployable due to the service-connected PTSD and/or diabetes mellitus during any time between September 27, 2001 and February 24, 2003, the case should be forwarded to VA's Director of Compensation Service for consideration of an extraschedular TDIU rating prior to February 24, 2003. 4. The RO/AMC should thereafter readjudicate the claim. If any of benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Neil T. Werner Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs