Citation Nr: 0810369 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 06-13 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), rated as 30 percent disabling for the period from March 19, 2004, to January 19, 2006, and as 50 percent disabling thereafter. 2. Entitlement to an effective date earlier than July 18, 2005, for the grant of a 60 percent rating for diabetic nephropathy. 3. Entitlement to an effective date earlier than January 19, 2006, for the grant of a total disability rating due to individual unemployability resulting from service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from August 1965 to May 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2007, VA received a letter from the North Carolina Division of Veterans Affairs revoking their representation of the veteran. The veteran has not indicated to VA that he has appointed another representative. The Board notes that the veteran's April 2006 notice of disagreement was filed in response to the March 2006 rating decision on appeal. While this rating decision stated that it granted entitlement to service connection for diabetic nephropathy and assigned a disability rating of 60 percent, the Board notes that service connection for nephropathy was actually established in an earlier July 2004 rating decision. At that time, the RO noted that service connection for nephropathy secondary to the veteran's diabetes mellitus was warranted and an effective date of March 8, 2004, the date the veteran's claim for entitlement to service connection for diabetes mellitus was received, was assigned. As the veteran's nephropathy was noncompensable, a separate rating was not assigned in accordance with 38 C.F.R. § 4.120, Diagnostic Code 7913 (2007), and the evaluation of his diabetic nephropathy was combined with his evaluation for diabetes mellitus. The veteran's notice of disagreement was received in April 2006 and was not filed within a year of the July 2004 rating decision. It therefore cannot serve as a notice of disagreement for the effective date of the grant of service connection for diabetic nephropathy as free-standing claims for an earlier effective date are not legally permitted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, the Board finds that the veteran's April 2006 notice of disagreement served to appeal the effective date of the assignment of the 60 percent evaluation for diabetic nephropathy. This issue was addressed by the RO in the April 2007 statement of the case (SOC), and the veteran filed a Form 9 in response in May 2007. The issue of an effective date earlier than January 19, 2006, for the grant of TDIU is addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. For the period prior to June 25, 2005, the veteran's PTSD was manifested by occupational and social impairment with reduced reliability or productivity; the occupational and social impairment from the disability does not more nearly approximate deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the period beginning June 25, 2005, the occupational and social impairment from the veteran's PTSD has most nearly approximated total impairment. 3. The veteran's nephropathy was assigned a 60 percent disability rating effective July 18, 2005; it is not factually ascertainable that the increase in disability occurred prior to July 18, 2005. CONCLUSIONS OF LAW 1. For the period prior to June 25, 2005, the schedular criteria for a disability rating of 50 percent, but not higher, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). 2. For the period beginning June 25, 2005, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an effective date prior to July 18, 2005, for the grant of a 60 percent rating for nephropathy have not been met. 38 U.S.C.A. §§ 5110, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.105(a), 3.155, 3.157(b)(1), 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the veteran's claim for an earlier effective date for his diabetic nephropathy, in a letter issued in March 2006, subsequent to the initial adjudication of the claim, the RO notified the veteran of the evidence needed to substantiate his claim for an earlier effective date. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, although the RO did not specifically request that the appellant submit all pertinent evidence in his possession, it did inform him of the evidence that would be pertinent and requested him to submit such evidence or provide VA with the information and authorization necessary for VA to obtain the evidence on the veteran's behalf. These statements served to advise the veteran to submit any evidence in his possession pertinent to the claim on appeal. Turning to the veteran's claim for an increased rating for PTSD, the appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). In a March 2004 letter, the veteran was provided VCAA notice regarding his service connection claim for PTSD. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran was provided Dingess notice by the March 2006 letter. The Board observes that this case is also affected by Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). In this decision, the Court found that, at a minimum, adequate VCAA notice in increased rating cases requires: (1) that VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The increased rating issue currently before the Board is entitlement to an increased rating for PTSD. The relevant rating criteria, as outlined below, provide for disability ratings not based on specific measurements or test results. In addition, the veteran has been specifically notified by the March 2006 Dingess notification letter that evidence demonstrating the effect his disabilities have had on his employment and daily life would aid in substantiating his claim. In any event, the Board does not find that any procedural defect constitutes prejudicial error in this case because of evidence of actual knowledge on the part of the veteran and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claim(s). See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The notice defect does not constitute prejudicial error in this case because the veteran demonstrated actual knowledge of the need for evidence of the impact of his disabilities on employment and daily life, specifically by discussing his employment status in his April 2006 Form 9 and by specifically referencing and discussing the rating criteria applicable to PTSD in his July 2005 notice of disagreement. The Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Id., slip op. at 12, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge shows that there was no prejudice from the absence of complete notice on the first and third elements of Vazquez-Flores notice. Additionally, the numerous VCAA letters provided notice on the fourth element of Vazquez-Flores notice by providing examples of evidence the veteran could submit or ask VA to assist in obtaining. Finally, the May 2005 and April 2006 rating decision and statement of the case included a discussion of the rating criteria utilized in the present case, and this criteria was set forth in further detail in the January 2006 Statement of the Case (SOC). While such post adjudication notice cannot serve as VCAA notice, Pelegrini II; it should have served to advise a reasonable person that if an increased rating was provided a percentage evaluation would be provided under a diagnostic code. The veteran had a reasonable opportunity to participate in the adjudication of his claims, inasmuch as it remained pending for years after the rating decision and SOC. The veteran was accordingly made aware of the requirements for increased evaluations pursuant to Vazquez-Flores. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service treatment records, records from various federal agencies, and private medical records. Additionally, the veteran was provided proper VA examinations to determine the severity of his PTSD. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Rating Claim Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign 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. 38 C.F.R. § 4.126(a) (2007). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2007). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. A rating of 30 percent is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for PTSD if it is productive of 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 (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Codes 9411. A 100 percent evaluation is warranted for 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. 38 C.F.R. § 4.130, Diagnostic Codes 9411. In assessing the evidence of record, it is important to note that 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 21-30 indicates that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). Id. A GAF score of 31 to 40 signifies some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., where a depressed man avoids friends, neglects family, and is not able to work). Id. A GAF score of 41-50 is assigned where there are, "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A GAF score of 51-60 means there are, "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 Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background Service connection for PTSD was granted in the May 2005 rating decision on appeal. A 30 percent disability rating was assigned, effective March 19, 2004, the date the veteran's claim for service connection was received. In the April 2006 statement of the case, an increased rating of 50 percent was granted for PTSD, effective January 19, 2006, the date of the veteran's most recent VA psychiatric examination. In support of his claim for service connection for PTSD, the veteran submitted an April 2004 private psychiatric examination report. His affect was restricted and his thought process was linear. Judgment and insight were fair and his dress was normal. The veteran reported symptoms of intrusive thoughts, frequent nightmares, flashbacks, distress at exposure to triggers that reminded him of past trauma, avoidance of conversations about service, estrangement and detachment from others, sleep disturbance, and irritability. He also stated that he was hypervigilant and had an exaggerated startle response. He reported memory problems to the point that he forgot the names of family members. The examiner noted that the veteran endorsed depressive symptoms, such as decreased energy, crying spells, and panic attacks two to three times a week. The veteran was also noted to have frequent auditory and visual hallucinations such as hearing his name being called and seeing shadowy figures in his peripheral vision. He was noted to be divorced and worked part-time cleaning homes and buildings. The examiner found that the veteran could not maintain more typical employment. The diagnosis was chronic PTSD, chronic alcohol abuse, and a GAF score of 30 was assigned. The examiner concluded that the veteran was severely compromised in his ability to sustain social and work relationships. He considered the veteran permanently and totally disabled and unemployable. The veteran was afforded a VA psychiatric examination in May 2005. He was alert, neatly dressed, and had no loose associations or flight of ideas. His affect was appropriate. The veteran gave a history of intrusive thoughts and crying spells. He stated that he had sleep disturbances, nightmares three to four times a week, was anxious, easily startled, hypervigilant, and uncomfortable in crowds. The veteran denied panic attacks, suicide attempts, and problems with alcohol. He stated that he had not worked since November 2003 when he was self-employed in maintenance. The veteran lived by himself, did his own cooking and cleaning, and did not have a lot of friends. He watched television and went to church. The veteran was divorced and had two children with whom he had a close relationship. There was no impairment of thought processes or communication, no delusions, and no hallucinations, although the examiner did note that the veteran may have some delusions at times. His memory appeared to be good and insight and judgment were adequate. The diagnosis was PTSD and a GAF score of 54 was assigned. The examiner noted that the veteran was not working and had some impairment of interpersonal relations. Outpatient treatment records from the VA Medical Center (VAMC) show that in May 2004 the veteran reporting symptoms of PTSD such as isolating himself, flashbacks, forgetting the names of his siblings, and difficulty sleeping. He stated that his symptoms worsened after his divorce and he was noted to have a slightly anxious affect. A year later, in May 2005 the veteran stated that his PTSD symptoms were better and he did not feel as emotionally blunted. He also stated that he did not have as much anger. Similarly, in December 2005, the veteran reported that his PTSD symptoms were better with his current treatment, although he still had difficulty sleeping and had nightmares. He also stated that he had lost his business in his divorce. In July 2005, the veteran submitted another private psychiatric examination report, dated June 2005. The examiner noted that the veteran had nightmares at least four times a week, flashbacks seven times a week, and panic attacks three times a week. As with his previous examination, he also reported intrusive thoughts, a heightened startle response, hypervigilance, and that he did not socialize with anyone. He also stated that his recent memory was severely impaired such that he could not remember where he was going when traveling and would get lost. The veteran reported that he had auditory and visual hallucinations when alone. He also stated that he had low energy, little interest in things, and felt helpless and suicidal at times. The examiner diagnosed PTSD and chronic major depression. A GAF score of 30 was assigned, and the examiner concluded that the veteran was unable to sustain work or social relationships and was unemployable due to his PTSD. The veteran's most recent VA examination was conducted in January 2006. He was noted to be hypervigilant throughout the interview, but his motor activity was otherwise normal. His mood was dysthymic. The veteran stated that he had not returned to work since his last examination, and he continued to live alone and do his own cooking and cleaning. He had no friends of social support. He did state that he occasionally talked to his family on the phone. The veteran reported some concentration problems and short term memory loss such as leaving the stove on and having trouble managing his medications. The examiner did note some concentration problems during the interview. The veteran stated that he continued to have trouble sleeping and that he felt down and depressed on a daily basis. He voiced feelings of worthlessness and anhedonia and stated that he cried when thinking about how isolated and depressed he had become due to his PTSD. He reported suicidal ideation. The diagnoses were PTSD and major depressive disorder. A GAF score of 49 was assigned. The examiner noted that the major depressive disorder was secondary to the PTSD and that both were mutually aggravating. The assigned GAF score encompassed both, and could not be delineated further. The symptoms for each disorder had some overlap, with the PTSD most likely accounting for nightmares, avoidance symptoms, and sleep disturbance. The veteran's functional impairment was considered quite serious. Period Prior to June 25, 2005 The veteran is currently assigned a 30 percent rating for his PTSD during the period prior to January 19, 2006. The Board notes that there is some conflict among the medical evidence as to the severity of the veteran's PTSD during this period. While the veteran's private psychiatrist found in April 2004 that the veteran was totally disabled and unemployable, the May 2005 VA examiner concluded that the veteran had only some impairment of his interpersonal relationships. The veteran's private psychiatrist also assigned a GAF score of 30, consistent with an inability to function in almost all areas, while the May 2005 VA examiner assigned a GAF score of 54, consistent with moderate symptoms. The Board finds that the balance of the medical evidence of record establishes that for the period prior to June 25, 2005, the veteran's PTSD most nearly approximated the criteria associated with a disability rating of 50 percent. In this regard, the Board notes that while the June 2005 private psychiatrist concluded that the veteran was unemployable, the veteran reported that he worked part-time cleaning homes and buildings. Furthermore, the majority of his reported symptoms were consistent with a disability evaluation of 50 percent such as panic attacks more than once a week, impairment of short and long term memory, and disturbances of motivation and mood. The Board finds that a disability evaluation of 70 percent is not warranted during this period. The criteria for a 70 percent rating for a psychiatric disability are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). While the veteran reported experiencing some symptoms associated with a rating in excess of 50 percent during this period, such as hallucinations and memory loss of the names of family members, the May 2005 VA examiner found that the veteran's memory was good and that he may have experienced delusions at times. In addition, outpatient treatment records from the VAMC indicate that the veteran reported in May 2005 that his PTSD symptoms had improved and that he did not feel as angry or as emotionally blunted. He also stated at his May 2005 VA examination that he went to church and had a close relationship with his children. Therefore, the Board finds that the veteran has not manifested PTSD with deficiencies in most areas for the period prior to June 25, 2005. The Board therefore finds that the preponderance of the evidence establishes that for the period prior to June 25, 2005, the veteran's PTSD most nearly approximated occupational and social impairment with reduced reliability or productivity. Therefore, an increased rating of 50 percent is warranted. Period Beginning June 25, 2005 The Board finds that for the period beginning June 25, 2005, the veteran's PTSD has been productive of total occupational and social impairment. The veteran's June 2005 private psychiatrist found that the veteran was unemployable and a GAF score of 30 was again assigned. The January 2006 VA examiner noted that the veteran had not worked since his previous examination and concluded that his functional impairment was quite serious. A GAF score of 49, consistent with serious symptoms, was assigned. The veteran also told the VA examiner that he had not worked since his last examination. Both the June 2005 and January 2006 examiners also diagnosed the veteran with major depression secondary to PTSD and noted that the veteran had no friends or social support system. In addition, the veteran reported memory and concentration impairment at both examinations and the January 2006 VA examiner observed that the veteran had concentration problems during his interview. The veteran also reported thoughts of suicide at both the June 2005 and January 2006 examinations. The Board notes that the veteran is entitled to a total rating for PTSD if it causes total occupational and social impairment, regardless of whether he has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not. See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). While the veteran has not endorsed all the symptoms associated with a 100 percent rating for the period beginning June 25, 2005, he expressed suicidal ideation at both the June 2005 and January 2006 examinations, and was found to have no social support system. Moreover, all the medical evidence of record confirms that the veteran has not been employed throughout this period. Therefore, the Board finds that the veteran's disability most closely approximates the criteria for a 100 percent rating for the period beginning June 25, 2005. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Effective Date Claim Legal Criteria In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2007). Once a formal claim for compensation has been allowed, a report of examination or hospitalization by VA will be accepted as an informal claim for increased benefits if the report relates to treatment or evaluation of a disability for which service connection has been previously established. The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2007). Analysis Service connection for nephropathy secondary to diabetes mellitus was granted in a July 2004 rating decision with an effective date of March 8, 2004. As the RO found that the veteran's nephropathy did not meet the criteria for a compensable rating at that time, a separate rating was not assigned. In the March 2006 rating decision on appeal, a separate disability evaluation of 60 percent was assigned for the veteran's nephropathy, effective July 18, 2005. The veteran contends that the 60 percent evaluation should be assigned effective March 8, 2004, the original date of service connection. The RO has stated that the July 18, 2005, effective date for the grant of a 60 percent disability rating for the veteran's nephropathy was assigned as it was the date the veteran's claim was received. The Board notes that the only communication received by VA on July 18, 2005, was a notice of disagreement with the initial rating assigned the veteran's PTSD in May 2005 rating decision. This communication did not reference the veteran's diabetes, nephropathy, or any condition other than PTSD. In any event, no communication was received from the veteran prior to July 18, 2005, that could be construed as a claim for increased disability benefits for diabetic nephropathy. In fact, the earliest evidence that can be accepted as a claim for increased benefits for nephropathy is the January 19, 2006, VA examination report diagnosing the veteran with diabetes mellitus with nephropathy. As noted above, 38 C.F.R. § 3.157(b)(1) states that an outpatient examination report can serve as an informal claim for increased benefits if service connection has already been established for the disability. As the record does not contain evidence that the veteran filed a claim, formal or informal, prior to July 18, 2005, the only basis on which an earlier effective date may be established is if the evidence demonstrates that it is factually ascertainable that the veteran's disability increased to the level contemplated by the increased evaluation assigned in March 2006 rating decision within the year prior to July 18, 2005. 38 C.F.R. § 3.400(o). The medical evidence of record includes records of outpatient treatment at the VAMC. In April 2005, the veteran's physician noted that laboratory testing showed that his creatinine level had been 1.3 in December 2004. In addition, his test for protein leakiness, a measurement of kidney damage, was noted to be abnormal in January 2005. While these test results are indicative of nephropathy, they do not establish that the veteran's disability had increased in severity. The Board notes that the veteran's nephropathy is rated under Diagnostic Code 7541 which provides for rating the disability as renal dysfunction. A 60 percent evaluation is appropriate for renal dysfunction when there is constant albuminuria with some edema; or, a definite decrease in kidney dysfunction; or, hypertension at least 40 percent disabling under Diagnostic Code 7101. 38 C.F.R. § 4.155(a). There is no evidence that the veteran's nephropathy most nearly approximated this criteria within a year prior to July 18, 2005, nor is there evidence that his diastolic blood pressure was predominantly 120 or more, as required for a 40 percent rating under Diagnostic Code 7101 for hypertension. Based on the foregoing, the Board finds that the preponderance of the evidence is against the grant of an earlier effective date. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating of 50 percent for PTSD for the period prior to June 25, 2005, is granted. Entitlement to an increased rating of 100 percent for PTSD for the period beginning June 25, 2005, is granted. Entitlement to an effective date earlier than July 18, 2005, for the grant of a 60 percent rating for diabetic nephropathy is denied. REMAND In April 2006, the veteran filed his substantive appeal perfecting his claim for an increased rating for PTSD. In a statement associated with his Form 9, the veteran appears to have disagreed with the effective date of January 19, 2006, for the grant of TDIU. As the veteran has not been provided a statement of the case in response to the notice of disagreement, a remand is required for the issuance of a statement of the case on this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, DC for the following actions: 1. The RO or the AMC should issue a statement of the case to the appellant on the issue of entitlement to an effective date earlier than January 19, 2006, for the grant of TDIU. The veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 2. If the veteran perfects an appeal with respect to this matter, the RO or the AMC should ensure that any indicated development is completed before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome of this case. The veteran need take no action until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Mark D. Hindin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs