Citation Nr: 1334372 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 01-07 571A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to July 1, 1997, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and CW ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1968 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, granted entitlement to TDIU effective July 1, 1997. In April 2002, the Veteran testified before a Decision Review Officer at the RO. A transcript of that hearing is of record. The Veteran was then afforded a Board hearing at the RO in June 2003 before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. Unfortunately, the judge who conducted that hearing has since retired from the Board. The Board sent the Veteran a letter in September 2010 informing him of this and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case. In October 2010, the Veteran declined the offer for a second Board hearing. This case has been before the Board on several occasions. This issue of entitlement to an earlier effective date for TDIU was previously remanded by the Board in December 2003 in order for additional notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) to be provided the Veteran. The earlier effective date issue was then returned to the Board in August 2005, at which time it was denied. In an October 2007 order, the U.S. Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand which had the effect of vacating the Board's denial. The issue was then returned to the Board for additional development. The Board next issued a March 2008 decision which again denied entitlement to an earlier effective date for the award of a TDIU. In a June 2009 order, the Court granted another Joint Motion for Remand which again had the effect of vacating the Board's March 2008 denial. Next, the Board issued a September 2009 decision which again denied entitlement to an earlier effective date for the award of a TDIU. This result was again vacated by an August 2010 Court order granting a Joint Motion for Remand. This issue thus returned to the Board. In March 2011, the Board sent the claim to an independent medical expert for a medical opinion. This opinion was received in June 2011. In December 2011, the Board denied entitlement to an earlier effective date for a TDIU on a schedular basis, and remanded the issue of entitlement to an earlier effective date for a TDIU on an extraschedular basis. The Board's remand order requested referral to the Director of VA's Compensation and Pension Service (C&P Director) or VA's Undersecretary for Benefits for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). In response to the Board's remand order, a June 2012 advisory opinion from an Acting Veterans Service Center Manager was received, along with a September 2012 report from the C&P Director. In April 2013, the Board sent the claim to a Veterans Health Administration specialist for a medical opinion. This opinion was received in June 2013. FINDING OF FACT Prior to July 1, 1997, the percentage requirements for TDIU under section 4.16(a) of VA regulations were not met, and there is insufficient evidence to make it at least as likely as not that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to that time. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 1, 1997 for the award of TDIU on an extraschedular basis have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The issue on appeal arises from a notice of disagreement with the rating decision which granted TDIU. As such, the Veteran's filing of a notice of disagreement with the effective date assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Rather, the Veteran's appeal as to the effective date assigned triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105. The July 2001 statement of the case (SOC) set forth the relevant law for consideration in an award of an earlier effective date. Further, by correspondence dated in March 2004 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of him to enable VA to obtain evidence in support of his claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In any event, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. The Veteran's service treatment records are associated with the claims file, as are VA medical records. Retrospective medical opinions were obtained that address the medical matters presented by this appeal in June 2011 and June 2013. The Board finds the June 2013 opinion is probative as it is supported by a rationale which is consistent with the medical record. The claim was also referred to the C&P for extraschedular consideration. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Earlier Effective Date for TDIU The Veteran seeks an effective date prior to July 1, 1997, for the award of a TDIU. He contends his unemployability due to his service-connected disabilities was established prior to this date, and evidence of such unemployability has been submitted for the record. He has reported that although an industrial accident rendered him unable to continue working in the heavy labor occupational field, which was the type of work he mostly "did or could find," he had a lack of trust in people which was a "big part of troubles caused with work." A TDIU is an award of increased compensation. The effective date of an increase in compensation shall be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). However, if evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date shall be the date of the factually ascertainable increase rather than the date of receipt. 38 U.S.C.A. § 5110 (b)(2); see also 38 C.F.R. § 3.400(o)(2). Generally then, to determine an appropriate effective date for an increased rating, the Board must determine when a claim for an increased rating was received and, if possible, when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151 (2012). Additionally, 38 C.F.R. § 3.155(a) provides that any communication or action from a claimant, indicating an intent to apply for one or more benefits under the laws administered by the VA, may be considered an informal claim. Such informal claims must identify the benefit sought. The submission of certain medical records may constitute an informal claim for an increase in disability compensation. 38 C.F.R. § 3.155(a). When considering "informal claims" based on medical records, the "date of claim" will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment and the date of receipt for evidence from a private physician, layman, state, or other institution. 38 C.F.R. §§ 3.155(c); 3.157(b). The Board has previously recognized that a Report of Contact dated August 5, 1992 constituted an informal claim for TDIU. On that date, the Veteran called the RO to establish an informal claim for PTSD, and he subsequently filed his formal claim, VA Form 21-526, Veteran's Application for Compensation or Pension, in March 1993. A January 1995 rating decision granted service connection for PTSD, evaluated as 30 percent disabling, effective August 5, 1992. A January 1997 Board decision granted service connection for chloracne, denied an effective date earlier than August 5, 1992, for the grant of service connection for PTSD, and remanded the issue of entitlement to an evaluation in excess of 30 percent for PTSD. In August 2000, the RO increased the evaluation for PTSD to 70 percent, effective July 1, 1997. An August 2000 rating decision granted entitlement to TDIU effective July 1, 1997. Having determined that August 5, 1992, is the date of claim for purposes of assigning an effective date, the Board must now look to the evidence to determine when it was "factually ascertainable" that the criteria for TDIU were met. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to July 1, 1997, service connection was in effect for PTSD and chloracne. The record indicates that the Veteran did not meet the schedular criteria for TDIU until July 1, 1997. Prior to July 1, 1997, he Veteran's combined evaluation was 30 percent from August 5, 1992, and 40 percent from May 2, 1997. The Board notes in passing that the Joint Motions dated in October 2007, June 2009, and August 2010 have not disputed the fact that the Veteran had not met the schedular criteria for TDIU prior to July 1, 1997. Additionally, in its December 2011 decision, the Board denied the Veteran an effective date prior to July 1, 1997, on a schedular basis, and that denial was not appealed to the Court. Therefore, this Board decision is final, and the issue is no longer before the Board. A TDIU rating may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). For a veteran to prevail on an extraschedular basis, the record must reflect some factor which takes the case outside the schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Review of the record indicates the Veteran first sought treatment for psychiatric symptoms in the early 1980s. A January 1982 employability evaluation report indicates that the Veteran had an "extensive history of withdrawal under stress, authority conflicts, destructive emotional outbursts, and considerable functional difficulty with structured requirements. PTSD was diagnosed. The examiner determined that PTSD greatly limited the Veteran's ability to perform in most conventional interpersonal and/or stress-inducing settings. The examiner further found the Veteran "may be able to do non-stressful, solitary, self-paced short term activities" and that, in response to treatment, the Veteran "may lose most symptoms and improve functional level with months" of treatment. An August 1982 letter written by a psychologist, H.B., Ph.D., stated, "[a]t present, it is probably unrealistic to expect [the Veteran] to handle regular employment in a traditional setting although he may be able to manage relatively low-stress work in a very supportive environment." The psychologist also wrote that "My experience with other, similar individuals, however, suggests that with the type of counseling that is available through this and similar facilities, [the Veteran] could gradually resume more functional and traditional roles in the community." In a September 1983 letter, H. B., PhD., wrote: [PTSD] is a common behavioral anomaly that occurs after relatively extreme and unusual stressors, particularly if human-induced. To the extent that it is conceived as a disease, it is eminently "curable." By extension, the Vet Centers are counseling resources that are particularly structured and capable of responding to the identified problems and minimizing or resolving them. [The Veteran] has now been involved with our ongoing counseling program for several months, maintains a positive attitude towards his involvement and appears to be slowly benefitting. Although many residual problems remain, I expect that he will be able to assume a slowly progressive level of responsibility in the immediate future. I perceive him to now be an appropriate candidate for vocational rehabilitation services[,] although it would be unwise to thrust him directly or quickly into a high stress environment. The Board finds that while the Veteran exhibited serious psychiatric symptoms when he first began seeking VA mental health treatment in 1982, he responded to treatment and was able to participate in vocational rehabilitation by 1983, according to a competent medical examiner. The record includes VA and Vet Center treatment records dating from 1985 to 1997. The 1985 records show the Veteran and his wife sought counseling due to communication issues between the two of them. There are no treatment records dated from 1986 through 1990. The Veteran evidently resumed treatment in 1991, when he was seen for an incident that occurred in his neighborhood, wherein a neighbor reportedly attempted to shoot him for calling animal control on her dog. These treatment records continue until at least 1997 but are silent for a finding, or even a suggestion, that the Veteran was unable to work due to PTSD. Although the Veteran was seen by various medical care providers in this context, no medical professional made a finding that the Veteran was unemployable due to PTSD or any combination of service-connected disabilities, and a March 1993 Vet Center record shows that when asked about the Veteran's "Present Social/Familial Context," the counselor wrote, "[u]nemployed and disabled by industrial accident." A September 1993 VA psychiatric examination record reflects the Veteran's history that he had crushed discs in the cervical and lumbar spinal areas, which was "one of the reasons he [was] unable to work." The Veteran added that he had not been employed regularly since 1976 and was injured in 1973. The Veteran reported symptoms of hyperarousal, difficulty sleeping, intrusive memories with flashbacks, hypervigilance, social withdrawal, and nightmares. The Veteran also reported a history of "many angry outbursts," though he indicated that things had "gotten considerably better." The Veteran denied recent night sweats, and the examiner found the Veteran did not have difficulty with concentration, distant avoiding, numbing, or diminished capacity to feel intimacy. On mental status examination, the Veteran was alert and well oriented, though somewhat cautious. He appeared clean and neat and was neatly dressed. The Veteran's overall attitude was friendly. At the time of examination, the Veteran's mood was seen as neutral to nearly neutral, though he became angry when confronted with the examiner's opinion that he did not appear depressed. The Veteran's affect was full, and his speech was normal in rate, rhythm, and volume. Thought associations were smooth, logical, and attached, and there was no evidence of any hallucinatory or delusional ideation. At the time of examination, the Veteran denied both homicidal and suicidal ideation. His memory was very good to excellent, and both judgment and insight were satisfactory, "exclud[ing] the fact that the Veteran ha[d] not been able to obtain gainful employment since 1976." The pertinent diagnosis was probable PTSD, with mild depression, anger, hypervigilance, and sleep irregularities. Also noted was the presence of a passive-aggressive personality disorder. The examiner determined that the psychosocial and environmental stressors (i.e. Axis 4) were mild to moderate and assigned a Global Assessment of Functioning (GAF) score of "approximately 65 to 70." The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF of 61-70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). A September 1993 VA Social and Industrial Survey report reveals the Veteran's history of nightmares, sleep disturbance, frequent night sweats, flashbacks, depression, and exaggerated startle response. The Veteran also reported that he had "very few" friends and did not trust people. He described himself as "very reclusive" and reported having a temper which was "very intense sometimes." He also reported that he was still depressed, though the depression had not been "quite as bad" recently. When questioned regarding his work history, the Veteran reported that he had not worked for the past seven years due to a back injury. In the opinion of the examiner, the Veteran did experience some symptoms of PTSD. The examiner added that the Veteran's characterological problems involving authority and taking responsibility were due to early childhood experiences. On VA psychiatric examination in September 1994, the same VA psychiatrist who had examined the Veteran in September 1993 noted, "[The Veteran] still complains of crushed discs in both cervical and lumbar spine areas. He states this prevents him from doing gainful employment." This examiner reported that although the Veteran "complain[ed] of a bad back and finances, [he] seem[ed] to be getting along reasonably well." The Veteran reported symptoms including night sweats, exaggerated startle response, hypervilance, and explosive anger managed with medication. The examiner found the Veteran did not have flashbacks. On mental status examination, the Veteran was alert and clean and made adequate contact. Thought associations were intact, and the Veteran readily completed goal ideas. The Veteran's mood at the time of examination was neutral. He appeared to be under no undue stress, and there was no evidence of any hallucinatory or delusional ideation. At the time of examination, the Veteran was neither suicidal nor homicidal. His affect was good, and he appeared quite relaxed. Following the Veteran's description of his PTSD symptomatology, the examiner stated that it was impossible to determine how much the Veteran had "learned" versus how much he had "experienced." Overall, the Veteran's thinking was found to be smooth, logical, and intact, with no evidence of psychosis. Judgment was satisfactory, as was insight. Reportedly, the Veteran's last gainful employment had been in the mid-1970s or earlier. The pertinent diagnosis was chronic PTSD, with a history of ongoing treatment for anger and depression. Also noted was a passive-aggressive personality disorder. The examiner found the Axis 4 stressors were mild and assigned a GAF score of 65 to 70. A September 1994 VA Social and Industrial Survey reflects histories of symptoms of sleep impairment, nightmares with sweats, intrusive thoughts, flashbacks, very strong startle reaction, and depression. The Veteran reported improvement in controlling his anger though he still got enraged and hollered and screamed. The Veteran complained that he was still depressed, though medication helped, and he stated that medication had helped him sleep better. According to the Veteran, he was a "house husband," taking care of his 12- and 13-year-old children. When questioned, the Veteran stated that he had not put in for Social Security disability, even though he had a "bad back" in addition to PTSD. In the opinion of the evaluating social worker, there had been "little change" in the Veteran's status from that of a year earlier. An April 1997 VA psychiatric examination record indicates that the Veteran had a GED, and had completed three years of college. According to the Veteran, he had been a "house parent" for the previous 12 years. When further questioned, the Veteran stated that he had last worked "for a salary check at a sanitary dump in Mapleton in 1981," working three days per week. The Veteran explained that he "had quite a bit of trouble with all the jobs in [his] life" and that he was "likely to be unemployable due to PTSD." He added that he was good as a houseparent instead of working where he "probably would not survive for long." When questioned regarding his psychiatric history, the Veteran stated that he had undergone "zero hospitalizations" for PTSD, or any other psychiatric issue. Rather, he reportedly had received outpatient treatment on an intermittent basis since approximately 1982. The Veteran was fairly cooperative on examination and was responsive to the examiner's questions, though often providing minimal information in regard to some specific questions. The Veteran's appearance was casual, and he seemed casual both about his hygiene and grooming. Motor behavior was calm and within normal limits throughout the course of the examination. Noted at the time was that the Veteran made intermittent eye contact and showed something of a delayed response latency with regard to questions. Otherwise, his speech patterns were normal for rate, volume, and tone. The Veteran appeared to be well oriented, and there was no evidence of any clouding or thought disorder. Memory functions appeared intact for both recent and remote memory, and there was no evidence of blocking. Noted at the time of examination was that the Veteran's mood was mildly dysphoric, and characterized by subjective complaints of depression. The Veteran's thinking appeared essentially on track, and he was both logical and coherent in his responses to questions. Judgment was rated as poor, with a remote history of extreme impulsiveness and disregard for social convention. The Veteran's insight into the nature of his difficulties appeared average or above, which the examiner noted was most likely attributable to years of individual and group counseling. In the opinion of the examiner, the Veteran's range of (PTSD) symptoms included most all of those in the DSM-IV listing, which is to say, flashbacks, constriction of emotional responsiveness, nightmares, hypervigilance, social isolation, emotional numbing, substance abuse problems, etcetera. According to the examiner, it was difficult to say what portion of the Veteran's "current mild to moderate symptoms of PTSD" were the result of his Vietnam experiences as opposed to later civilian experiences. However, in the opinion of the examiner, the Veteran's current rating for PTSD was "appropriate." The pertinent diagnosis was mild to moderate, delayed onset PTSD. Also noted was a passive-aggressive personality disorder, as well as a history of back surgery in September 1973 following an industrial accident. The examiner determined the psychosocial and environmental stressors were mild and assigned a GAF score of 67. A May 1997 VA skin examination record reflects the Veteran's history of rash affecting the back, chest, abdomen, and extremities. He reported that the rash was "sometimes" associated with stinging, burning, and "a little" soreness or tenderness when there were pus bumps. After examination, the Veteran was diagnosed with folliculitis, acneiform, affecting torso, anterior and posterior buttocks, thighs, and upper extremities. At the time of a VA Social and Industrial Survey on July 1, 1997, the Veteran stated that his sleep pattern continued to be an issue. Also noted were problems with night sweats, as well as an easy startle response. According to the Veteran, he was hypervigilant, and therefore experienced difficulty in crowds. Also noted were problems with anger, as well as depression, withdrawal, and an inability to motivate himself. When further questioned, the Veteran stated that he functioned as a house parent, and basically fluctuated between "being productive to being totally unproductive." He stated that he had few outside friendships, with most of his friends having been those he met at the local Vet Center. According to a previous social and industrial survey, the Veteran did not work due to back pain. When this was mentioned to the Veteran, he commented that, while his back pain contributed to his inability to work, it was in fact "a small portion" of his problem. Rather, the Veteran contended that he had been unemployed since the 1970s, because he was unable to relate to his work environment and the people in it due in part to explosive behavior and a depressive attitude. According to the Veteran, in the 1970s, he found out that he was not able to work, following which he injured his back on a job. According to the examiner, the Veteran felt that his mental/emotional issues were the primary obstacle to his working, and that his back was secondary up until the time of recent surgeries. In the opinion of the examining social worker, the Veteran continued to suffer significantly from PTSD and depression. In that regard, he continued to be hypervigilant, with difficulty in being around people, a situation which was basically unchanged since his last review. Apparently, it became obvious to the Veteran that his ability to function in the workplace was not good, and he continued to believe that it would not be easy for him to sustain work. According to the social worker, the Veteran did not appear to be employable, and his fluctuations in mood, etcetera, appeared to substantiate that assessment. In the opinion of the examining social worker, the Veteran continued to have severe PTSD which was unlikely to change. While taking medication and undergoing counseling at the Vet Center, the best the Veteran was able to do was still "not very good." Rather, the Veteran continued to suffer from mental/emotional issues, in addition to frustration at not being able to function to the degree that he would like. In the opinion of the examining social worker, the Veteran's ability to be employed in the community was marginal, and "probably improbable to impossible based on his presentation and level of emotional pain." In June 2011, an opinion was received from an independent medical expert (IME), W.B.L., M.D. This opinion addressed the question of whether PTSD was sufficient to preclude the Veteran from securing or following substantially gainful employment prior to July 1, 1997. It was noted that the Veteran clearly had other problems that could limit employability. It was also indicated that he had a chronic spinal disorder, claimed as crushed discs, and that he was abused as a child and undereducated, but had earned a GED degree in the service. It was indicated that, nevertheless, there is evidence that PTSD alone could limit his employability, according to Dr. L. The examiner concluded that the Veteran had emotional behavioral problems noted since the 1970s that caused a lack of competitive sustained employment, as well as domestic problems, and was likely due to PTSD. Additionally, the Veteran continued to have clear-cut PTSD symptoms noted in multiple evaluations and remained unemployable in a competitive setting. Ultimately, Dr. L. found that the Veteran's PTSD, in and of itself, "could limit his employability." The appeal was then forwarded to the C&P Director for further consideration. In a September 2012 report, the C&P Director determined that a TDIU on an extraschedular basis was not warranted. The Director noted that while the Veteran's PTSD was service connected, he also had nonservice connected chronic back pain, hip pain, hypertension, hepatitis C, and osteoarthritis, all of which limited his employability. Additionally, the evidence of record for the time period between August 1992 and July 1997 indicated that although the Veteran's PTSD resulted in some occupational impairment, the occupational impairment was not total. The Director cited September 1993 and April 1997 VA examination reports in support of his conclusion. The claim was then returned to the Board. It is noted that the C&P Director's denial of extraschedular benefits is not binding on the Board, and the Board is not affording it any weight in the ultimate determination here. Rather, it is noted solely for the purpose of procedural continuity. Once the C&P Director reaches his conclusion, the Board is charged with undertaking a critical and comprehensive review of the evidence and then independently determining whether an extraschedular TDIU is warranted for the time period in question. In undertaking this review, the Board, in an effort to ensure that every effort was made to assist the Veteran in substantiating his claim, obtained an additional independent medical opinion. In a June 2013 opinion, an Associate Professor of Psychiatry and Attending Physician, determined that the available evidence did not support the claim that the Veteran's PTSD alone resulted in his total unemployability prior to July 1, 1997. The psychiatrist explained that PTSD is a debilitating disorder often associated with impairment in psychosocial functioning, especially with respect to social interaction, emotional behavior, and communication; that PTSD is often comorbid with other psychiatric disorders; and that the degree of psychosocial impairment depends on the severity of PTSD symptoms and comorbid conditions. The examiner added that it was "unlikely" that mild PTSD without other comorbidities would result in total disability in psychosocial function. The psychiatrist noted that the record clearly demonstrated that the Veteran had PTSD and that the PTSD symptoms caused impairment in psychosocial function. The psychiatrist also noted that the Veteran had not worked since an industrial accident, which he previously claimed was the cause of his unemployability. The psychiatrist determined that psychiatric evaluations performed after 1992 and prior to 1997 suggested mild to moderate PTSD symptoms, as reflected in the assigned global assessment of functioning (GAF) scores of 65 to 70, which corresponded to findings of some mild symptoms or some difficulty in functioning though generally functioning pretty well. The psychiatrist determined that it was unlikely that an individual with a GAF score of 65 to 70 would be totally disabled. The psychiatrist added that more recent psychiatric evaluations, i.e. those dated after July 1, 1997, suggested that the Veteran "may" suffer from severe PTSD, as shown by a GAF score of 35. The psychiatrist reported that individuals with a GAF score of 35 would be more likely to be precluded from gainful employment. Thus, the psychiatrist concluded that although it was reasonable to opine that the Veteran's current PTSD symptoms are severe enough to preclude substantially gainful employment, the record did not support a finding that the PTSD resulted in unemployability prior to July 1, 1997. The psychiatrist noted that the evidence presented in the record was "very limited." In weighing the Veteran's claim, the Board may not consider the effects of the Veteran's nonservice connected cervical and lumbar spine disabilities on his ability to function in determining whether an earlier effective date for the award of TDIU is warranted. See Van Hoose, 4 Vet. App. 361, 363 (1993). After review, while the record clearly indicates that the Veteran was in fact unemployed during the period from August 5, 1992 to July 1, 1997, and indicates that his occupational functioning may have been affected by PTSD, the Board finds the evidence as a whole, including the Veteran's own statements during this period, indicate that the Veteran's service-connected disabilities did not render him unemployable prior to July 1, 1997. The finding that the Veteran's service-connected disabilities alone did not prevent him from securing or following a substantially gainful occupation prior to July 1, 1997 is bolstered by the VA examinations during the period in question. Following VA examinations in September 1993, September 1994, and April 1997, two distinct examiners assigned Global Assessment of Functioning scores which reflect findings that the Veteran's PTSD did not result in more than mild symptoms or "some difficulty" in occupational impairment. The examiners also characterized the Veteran's PTSD with depression as mild and mild to moderate. The assigned GAF scores and assessments, and the findings and histories recorded in the examination records, suggest a level of impairment below that which would render the Veteran unemployable. The Board acknowledges that a July 1, 1997, social and industrial survey determined the Veteran was unable to work. However, as discussed, this is the first piece of evidence that suggests that the Veteran's PTSD rendered him unemployable. Yet, this opinion found manifestations and impairment that was more severe than the symptoms found prior to July 1, 1997, to include new histories of periods of unproductivity, inability to motivate, difficulty with crowds, and inability to work since the 1970s due to the PTSD symptoms. These symptoms were new, even when compared with the April 1997 VA examination record. As such, the Board finds that the July 1, 1997, social survey is not probative evidence as to the impact of the Veteran's PTSD on his occupational functioning prior to July 1, 1997. The treatment records also do not suggest that the service-connected disabilities rendered the Veteran unemployable during the period in question. The VA and Vet Center psychiatric treatment records are silent for a finding that the PTSD resulted in severe or total occupational impairment. Although the Veteran was seen by various medical care providers, no provider made a finding that the Veteran was unemployable due to PTSD or any other service-connected disability. The Board acknowledges that medical records dated in 1982 suggest severe occupational impairment due to the psychiatric symptoms. The Veteran subsequently underwent treatment for the psychiatric symptoms, however, and the record indicates that the Veteran responded to treatment and was capable of participating in vocational rehabilitation by 1983, which suggests a diminution of occupational impairment. See, e.g., September 1983 H.B. letter. See generally Vet Center treatment records (reflecting treatment from 1985). In sum, although the Veteran was possibly unemployable due to PTSD in 1982, his PTSD improved with treatment so as to not render him unemployable at any time during the period in question. This determination in consistent with the 1982 determinations that the PTSD could improve with treatment, the 1983 determination that the PTSD had improved with treatment, and the findings on examination in 1993, 1994, and 1997. Finally, the Board finds the record does not include a probative retrospective opinion suggestive of unemployability due to a service-connected disability prior to July 1, 1997. Quite the opposite. As noted above, after reviewing all of the relevant evidence of record, an Associate Professor of Psychiatry and Attending Physician determined that the available evidence did not support the claim that the Veteran's PTSD alone resulted in total unemployability prior to July 1, 1997. The Board finds this retrospective opinion is highly probative as it is based on a complete, and well-reasoned rationale which is consistent with and grounded in the medical evidence. The Board acknowledges that an IME, Dr. L., concluded that the Veteran's PTSD, in and of itself, "could limit his employability." The Board finds this opinion carries little probative weight, however. Initially, the Board notes that probative value is significantly lessened because the opinion uses terms which merely suggest the possibility of a conclusion, not the probability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative.). The opinion is alternately with diminished probative value because Dr. L. did not provide an adequate rationale for the finding of unemployability prior to July 1, 1997. Dr. L. did not cite any specific symptoms which would have rendered the Veteran unemployable and did not address any examination reports or other competent evidence for the period between 1991 and 1997. This failure to provide a detailed rationale is particularly problematic because Dr. L's findings, to the extent that he is suggesting that the Veteran was rendered unemployable by his PTSD prior to July 1997, are inconsistent with the medical evidence dating between 1991 and July 1, 1997, which reflected no more than moderate impairment from PTSD. In this regard, the Board finds the VA examiners' assessments of the impairment associated with the PTSD are more probative because the examiners personally examined the Veteran during the time period at issue and reached independent determinations regarding his employability at that time. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Dr. L. also failed to address the role of the Veteran's nonservice-connected back disability in his employability. Specifically, Dr. L. did not mention the fact the Veteran had consistently attributed his inability to work to his spinal disorder and consistently reported that he had ceased working because of that disorder prior to July 1, 1997. Thus, the Board finds the opinion provided by Dr. L. provides limited probative evidence as to the Veteran's employability prior to July 1, 1997, and it is therefore afforded little weight. Furthermore, the record does not include any evidence that the Veteran was unable to obtain or maintain any form of employment prior to July 1, 1997, solely due to his service-connected PTSD and/or chloracne. The Board notes that the Veteran had not worked for many years prior to that date. The record does not indicate that the Veteran looked but was unable to find work, however. On VA examination in 1994, the Veteran reported that he worked as a houseparent. He explained that he assumed his PTSD would mean he "would not survive for long" in a work environment. Although the Veteran is competent to describe his symptoms and functioning, he is not competent, as a layperson, to blankly determine that his PTSD rendered him unemployable; in the absence of a rationale, such as a summary of symptoms, in support of the assertion that he would not be able to maintain employment, the Board finds it is not probative evidence of unemployability as of 1994. In reviewing the Veteran's appeal, the Board has noted that the Veteran has also been awarded service connection for chloracne, with a 10 percent disability rating. The record never suggests that the associated symptoms interfere with the Veteran's employability in any way, however. The Board has considered the Veteran's own contentions regarding his PTSD and chloracne symptomatology prior to July 1, 1997, and its affect on his employability. Despite being a layperson, the Veteran is competent to testify regarding such observable symptomatology as his mood and other psychiatric symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, the Board finds such testimony to be credible, generally. Nevertheless, insomuch as the Veteran contends his service connected disabilities prevented him from working prior to July 1, 1997, the Board finds this evidence to be of lesser probative weight when compared to the objective clinical findings of multiple examiners between 1992 and 1997. Thus, even when the Veteran's August 1992 Report of Contact is accepted as his informal claim for entitlement to TDIU, the evidence of record does not establish that the Veteran was unable to obtain a substantially gainful occupation solely as a result of his service-connected disabilities prior to July 1, 1997. As such, the claim is denied. ORDER Entitlement to an effective date prior to July 1, 1997, for the award of a TDIU on an extraschedular basis is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs