Citation Nr: 1041925 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 07-31 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for PTSD prior to August 28, 2009, and an initial rating in excess of 70 percent from that date. 2. Entitlement to an effective date earlier than August 28, 2009, for the grant of total disability based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, VA. As an initial matter, a discussion of the case's procedural history is necessary. In a March 2007 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating, effective October 19, 2005, the date on which the claim was filed. In August 2007, the RO continued the 50 percent rating for PTSD and denied a claim for TDIU. In September 2007, the Veteran perfected his appeal in seeking entitlement to TDIU and an increase in the assigned initial 50 percent rating. In a September 2009 rating decision, the RO increased the rating assigned for PTSD to 70 percent, effective August 28, 2009. The Board notes that the multiple rating decisions have resulted in "staged ratings" and as the rating decisions represented less than the full benefits sought, the entire appeal period remained on appeal. In a VA Form 21-4138, dated in August 2009, the Veteran referred to the issues as an increased rating for PTSD (including TDIU) and effective date of rate increase. He indicated that he disagreed with the August 28, 2009 effective date of the rating increase from 50 to 70 percent. He stated that the correct effective date was October 19, 2005. In January 2010, the RO granted entitlement to TDIU, effective August 28, 2009. In February 2009, the Veteran filed a Notice of Disagreement (NOD) in regards to the effective date assigned for the TDIU claim. He also again indicated that the PTSD condition should have been rated as 70 percent disabling from October 19, 2005. In regards to the initial increased rating claim, in an October 2009 supplemental statement of the case and a May 2010 statement of the case, the RO separated out the issues into two claims, one characterized as an initial rating in excess of 70 percent and the other as entitlement to an effective date earlier than August 28, 2009 for the assignment of the increased evaluation of 70 percent for PTSD. The Board acknowledges that the Veteran used terms relating to the effective date of the 70 percent rating, however, the RO's characterization of the issue(s) was too limiting. The entire period prior to and from August 28, 2009 remained on appeal and the claim represented an increased rating claim rather than an effective date claim. Therefore, the Board broadly characterized the issue more favorably to the Veteran as entitlement to an initial increased rating of 50 percent for PTSD prior to August 28, 2009, and an initial rating in excess of 70 percent from that date. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Prior to and from August 28, 2009, the Veteran's PTSD manifests occupational and social impairment with deficiencies in most areas, such as work, school, judgment, thinking, or mood; it is not productive of total occupational or social impairment. 3. The evidence of record first established that the Veteran's service-connected PTSD rendered the Veteran unable to obtain or maintain suitable gainful employment beginning September 1, 2007. CONCLUSIONS OF LAW 1. Prior to August 28, 2009, the criteria for an initial 70 percent evaluation, and no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16, 4.130, Diagnostic Code 9411 (2010). 2. From August 28, 2009, the criteria for an evaluation higher than 70 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.16, 4.130, Diagnostic Code 9411 (2010). 3. The criteria for an effective date of September 1, 2007, for the grant of entitlement to TDIU have been met. 38 U.S.C.A. §§ 1155, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.340, 3.400, 4.16, 4.18 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background With his claim for service connection for PTSD received in October 2006, the Veteran submitted a report of a September 2005 psychological evaluation by L. G., a Licensed Psychological Assistant, which shows that on mental status examination, the Veteran was dressed normally; cooperative; oriented to time, place, and person; had a guarded mood; his affect was restricted; his judgment and insight were limited; and he had no current suicidal or homicidal ideation. The Veteran was diagnosed with chronic and severe PTSD. He re-experienced traumatic events as distressing thoughts and dreams. He avoided stimuli associated with trauma and general numbing as evidenced by his avoidance of any media concerned with war, his avoidance of conversations about his war experiences, his isolating behaviors, and his feelings of estrangement. He demonstrated increased arousal as difficulty staying asleep, hypervigilance, and exaggerated startle response. The symptoms caused clinically significant impairment in his occupational, social, and personal life. His concentration problems and his hyperarousal compromised his productivity at work. The same symptoms interfered with his ability to learn new tasks. Because of his estrangement and isolating behaviors, he was unable to initiate or sustain work relationships. His hypervigilance and distrust of others severely limited his ability to initiate or sustain social relationships. L. G., therefore, stated that she considered the Veteran to be permanently disabled. He was assigned a Global Assessment of Functioning (GAF) score of 39. On June 2007 VA examination, it was noted that the Veteran had been working during the past 57 years up to the present time in a textile mill as a superintendent overlooking such things as boiler operations and other things associated with the plant. He indicated that he had growing difficulty managing the demands of the job due to emotional distress. Concerning his treatment, he reported that his first mental health treatment was in 2005 with "Dr. Louise," apparently referring to L.G., and that he had seen her on a few occasions since then; he had no psychiatric hospitalizations and no medications related to mental health functioning. He reported experiencing daily intrusive thoughts of his war experiences in Korea. He denied any psychiatric hospitalization or medications related to mental health functioning. He was noted to be cleaned and adequately groomed. He was alert and oriented x 4. Memory function was good and he was able to recall recent and remote information without difficulty. His mood appeared significantly anxious and depressed. He indicated that he slept six hours per night and his appetite was fair. He reported that he was socially withdrawn and had difficulty focusing on things due to his intrusive memories about Korea. He indicated that he was less patient with co-workers due to his anxiety and he felt jittery. He described some hypervigilance around others and had a history of an exaggerated startle response. He reported some passive suicidal thoughts but there was no evidence of plan or intent. There was no objective evidence of obsessional rituals, panic attacks, or impaired impulse control. He was currently married to his third wife of five years. He had two adult children from his first marriage. The examiner indicated that the Veteran's insight was fair and judgment was adequate for current safety. He was assigned a GAF score of 50. The examiner noted that his impression was that the Veteran's high level of tension was putting his ability to manage the job at high risk and the examiner was concerned about the Veteran's ability to maintain employment. In response to VA's request for treatment records, L.G. submitted in July 2007 another copy of her September 2005 report, a June 2007 report, and a letter dated in June 2007, which was addressed to the Veteran's employer and which stated: [The Veteran] has been in treatment with me since September of 2005. He needs to retire immediately from his position with the Dan River Company due to health concerns. He has requested that I notify you. In her June 2007 report, L.G. noted that she had seen the Veteran for an initial psychological evaluation in September 2005, adding "[s]ince that time he has returned on a regular basis for follow-up visits." She reported that she had last seen him on May 15, 2007. She indicated that her current evaluation was that the Veteran had severe PTSD and a GAF score of 35. He consistently reported marked worsening of his PTSD symptoms. He described having more nightmares and intrusive thoughts about his time in the military. He woke up sweaty with his heart racing. He sometimes felt so nervous that he had trouble going to sleep. His hands often shook, which was a problem for him at work. His shakiness became significantly worse in the past year. He sometimes had to find an empty office to get away from co-workers and calm him down. He was increasingly concerned about memory problems and would get frustrated when he would forget things. He commented that he was losing confidence in his ability to do his job. His symptoms continued to interfere significantly in his occupational, social, and personal life. His intrusive thoughts and hyperarousal contributed to sporadic productivity at his job. These same symptoms negatively impacted his concentration and memory further interfering with his paperwork and severely limited his ability to initiate or sustained work relationships. Likewise, his hypervigilance and isolating behaviors severely limited in his ability to initiate or sustain social relationships. Due to the severity and chronicity of his symptoms, his prognosis for recovery was poor. He was highly likely to have marked worsening of his PTSD symptoms due to stressors inherent in any work environment. Therefore, L. G. considered him to be permanently and totally disabled and unemployable. A July 2007 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from Dan River, Inc, showed that the Veteran had been employed with them since July 20, 1950. He worked 36-48 hours per week and 12 hours per day as a boiler operator. No concessions were made by reason of age or disability. There was no evidence of time lost on the job due to the Veteran's PTSD or any other disability. The employer did not report a date last worked, listed the benefits and payments which he was entitled to receive, and listed "n/a" for the date such benefits began. Thus, it is apparent that the Veteran was still working in mid-July 2007, at the time this document was completed by the employer. On August 2009 VA examination with the same person who had examined him in 2007, the Veteran denied any mental health treatment since his 2007 VA examination. He stated that he tried to avoid direct treatment as it made him think about his Korean War experiences, and he wished to block them out despite not being able to do so. He reported that his relationship with his third wife was stable, although his nightmares and tendency to lash out while sleeping caused her to sleep in another room. The examiner noted that when the Veteran was last seen, he was still employed at a textile mill where he had worked for approximately 57 years, but that the Veteran reported that he left that job "some months" after his last VA examination in 2007. He explained that he had decided to leave his job so as to not cause injury to himself or to others through negligent work performance as a result of his decreased concentration, anxiety, and intrusive memories. On mental status examination, the Veteran was clean, adequately groomed, and casually dressed. His gait and posture were unimpaired. He was cooperative in the interview, but quite tense. He demonstrated a good deal of psychomotor agitation when the discussion turned toward his Korean War experiences. The examiner stated that, since much of the Veteran's history was obtained in 2007, it was unnecessary to view that in great detail at the current examination, given the high level of distress it caused the Veteran. The Veteran was alert and oriented x 4. His affect was of normal intensity and reflected sadness and worry. His mood was quite anxious and mildly depressed. He reported intrusive thoughts of his Korean War experiences on a frequent daily basis. He stated that he found himself at times unable to think of anything else. He continued to experience nightmares several times per week. He described strong feelings of fear and sadness associated with memories of the Korean War. He reported that he was sleeping only three to four hours per night. His appetite was fair. Socially, he was becoming even further withdrawn. He found it difficult to manage social interaction as he was preoccupied by thoughts of the Korean War. He had a history of exaggerated startle response and continued to experience hypervigilance around others. He tried to avoid reminders of his Korean War experiences, but could not block them out. He reported that he had been experiencing suicidal thoughts as recently as a couple of days prior to this examination. He indicated that he did not have a plan of harming himself and would reach out for assistance should that occur. He described an overall worsening of problems secondary to those memories. The Veteran's mental pace and general energy level were within normal limits. His insight and judgment were fair. His motivation level was fair. His speech was clear, goal-directed, spontaneous, and of normal pace and volume. He had no history of hallucinations, delusions, or mania. The examiner confirmed his existing diagnosis of PTSD and provided a GAF score of 48. The examiner commented that the Veteran felt forced to leave employment not because of his age or medical issues, but due to worsening PTSD symptoms that were disrupting concentration and caused a high level of emotional distress. The examiner found that the Veteran was likely to experience significant difficulty managing the stress tolerance and social interaction demands of employment due to his PTSD symptoms. His capacity to tolerate any additional stress at this time was poor. He was unlikely to be able to manage to hold full-time or consistent employment at this point secondary to his PTSD issues. In October 2009, the Veteran reported on VA Form 21-8940 that in September 2007 his disability affected full-time work, he last worked full-time, and he became too disabled to work. He also indicated, however, in another part of the form that he did not leave his last job because of his disability. He wrote, "Could no longer handle the job because of working conditions, due my nerves." In an accompanying statement, he reported that he last worked for Dan River Corporation and that, after he retired, they went out of business and he did not know how to contact anyone to complete VA Form 21-4192, which is the VA form previously completed by his employer. II. Criteria and Analysis for PTSD As previously noted, a rating decision dated March 2007 granted service connection for PTSD and assigned a 50 percent disability rating, effective October 19, 2005. The Veteran perfected his appeal in regards to the initial 50 percent rating. Although a September 2009 rating decision increased the rating assigned to 70 percent effective August 28, 2009 as this is less than the full benefit sought the entire appeal period, which includes staged ratings, remains on appeal. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 C.F.R. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 50 percent disability evaluation encompasses PTSD manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability evaluation is warranted for PTSD 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 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); or the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted for PTSD which is productive of 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; or memory loss for the names of close relatives, own occupation, or own name. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. With regard to the Global Assessment of Functioning (GAF) scores assigned, the Board notes that the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). According to the American Psychiatric Association's DSM-IV, GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co- workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). A GAF score of between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF Scores. See 38 C.F.R. § 4.130 (2010). Accordingly, a certain GAF score does not automatically equate to any particular percentage in the Rating Schedule. Rather, it is but one factor to be considered in conjunction with all the other evidence of record. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 this claim for increase, 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). On review of the evidence, the Board concludes the objective medical evidence and the Veteran's statements regarding his symptomatology shows disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating throughout the entire appeal period (prior to and from August 28, 2009). See 38 C.F.R. § 4.7 (2010). The symptoms throughout the time period on appeal are substantially consistent. For this reason, staged ratings are no longer applicable. See Fenderson, supra. Throughout the appeal period, the Veteran's PTSD symptoms included, restricted affect, limited judgment and insight, avoidance behavior, hypervigilance, exaggerated startle response, intrusive thoughts, suicidal thoughts, decreased concentration, psychomotor agitation upon questioning, sleep disturbances, and mood disturbances such as anxiety, depression, and guarded mood. The Veteran's psychiatric symptoms have also resulted in social isolation and detachment from others. In the September 2005 report from L. G., it was noted that the Veteran had isolating behaviors and feelings of estrangement that made him unable to initiate or sustain work relationships. Also, his hypervigilance and distrust of others severely limited his ability to initiate and sustain any social relationships. On June 2007 VA examination, he reported that he was socially withdrawn and was less patient with co-workers due to his anxiety. On August 2009 VA examination, he reported that he found it difficult to manage social interaction as he was preoccupied with thoughts of his Korean War experiences. The only relationship that the Veteran reported was that with his third wife, which was described as stable. Throughout the appeal period, the Veteran's GAF scores ranged from 35 to 50 representing a serious impairment in social, occupational, or school functioning to a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. As previously described, his symptoms included social isolation, restricted affect, limited judgment and insight, avoidance behavior, hypervigilance, exaggerated startle response, intrusive thoughts, suicidal thoughts, decreased concentration, psychomotor agitation upon questioning, sleep disturbances, and mood disturbances such as anxiety, depression, and guarded mood. He was severely limited in his ability to initiate and sustain work or social relationships. On June 2007 VA examination, it was noted that his high level of tension was putting his ability to manage his job at high risk and the examiner expressed concern over the Veteran's ability to maintain employment. On August 2009 VA examination, it was noted that the Veteran was likely to experience significant difficulty managing the stress tolerance and social interaction demands of employment due to his PTSD. His capacity to tolerate any additional stress was poor. Overall, the Veteran's GAF scores and associated symptoms approximately resembled the 70 percent criteria. Based on the medical evidence of record, the Board concludes that the Veteran's PTSD does not more nearly approximate the criteria for a 100 percent rating for this time period. At no point throughout the appeal period did the Veteran demonstrate total occupational and social impairment, or 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, disorientation as to time or place, or memory loss for names of close relatives, own occupation, or own name to warrant a higher rating. The Veteran did not have total social impairment; he reported that his relationship with his wife was stable. In regards to his occupational impairment, although L. G. indicated in June 2007 correspondence that the Veteran was permanently and totally disabled and unemployable, the Veteran was in fact still employed at that time, working 36 to 48 hours per week with the same company since 1950. On VA Form 21-8940, the Veteran indicated that he was employed until September 2007. Although he had deficiencies in social and occupational areas, these deficiencies are contemplated in the 70 percent rating. Since the Veteran has some of the criteria for a 70 percent rating, along with several psychiatric symptoms not listed in the rating schedule such as hypervigilance, exaggerated startle response, intrusive thoughts, decreased concentration, psychomotor agitation upon questioning, etc., see Mauerhan, supra, the Board concludes his overall level of disability more nearly approximates that consistent with a 70 percent rating throughout the appeal period. The GAF scores of record support the Board's conclusion that a 70 percent, but no higher, rating is warranted. The majority of the scores are in the 35-50 range reflecting "serious" to "major" impairment in social and occupational functioning, which is commensurate with degree of social and industrial impairment as required for the assignment of a 70 percent disability evaluation. In summary, the Board concludes that prior to August 28, 2009; the evidence supports an initial increased rating of 70 percent, but not higher. To this extent, the appeal is granted. 38 C.F.R. § 4.3. However, the Board finds that the evidence is indicative of no greater impairment than that contemplated by the initial 70 percent rating assigned for PTSD from August 28, 2009. To that extent, the appeal is denied. The Board decision has determined that the Veteran's PTSD symptoms throughout the appeal period have approximated the 70 percent criteria and staged ratings are no longer warranted. See Fenderson, supra. The Board has also considered whether higher ratings are warranted on an extra-schedular basis. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Here, as discussed above, the rating criteria for the service- connected PTSD reasonably describe the Veteran's disability level and symptomatology for the designated appeal periods. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the above designated rating periods are adequate, and no referral for an extraschedular evaluation is required. Thun v. Peake, 22 Vet. App. 111 (2008). III. Criteria and Analysis for the Assignment of an Earlier Effective Date for TDIU The Board notes that VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such 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) (2010). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b) (2010). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2010). A claim for TDIU is a claim for increased compensation if, as in this case, the "disability upon which entitlement to TDIU is based has already been found to be service connected." Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009). Accordingly, the assignment of an effective date is controlled by the criteria for assigning the effective date for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). The effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). An exception to that rule applies, however, under circumstances where 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. In such an instance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2010); Harper v. Brown, 10 Vet. App. 125 (1997). The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of 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)(1)(2); VAOPGCPREC 12-98 (1998). The Federal Circuit has held that where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the regulatory requirements have been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual employability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Furthermore, the Court has held that a request for a total disability rating based on TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that in a January 2010 rating decision, the RO granted TDIU effective August 28, 2009, the date of the VA examination showing that the Veteran was unemployable due to his PTSD and the date from which concluded that he was shown to meet the schedular rating criteria for entitlement. However, in considering the evidence of record under the laws and regulations as set forth above, and having resolved doubt in favor of the Veteran, the Board finds that September 1, 2007, is the correct date for the grant of entitlement to TDIU. In this regard, the Board notes that the Veteran's service- connected PTSD, found herein to be 70 percent disabling since October 19, 2005, now satisfies the percentage rating standards for individual unemployability benefits prior to August 28, 2009. However, the analysis does not end there; the Board must determine when the Veteran was no longer able to secure and follow a substantially gainful occupation. The evidence of record clearly indicates that in June 2007, the VA examiner was questioning the Veteran's ability to maintain employment; however, the Veteran continued to work as a full-time superintendent of boiler operations at a textile mill. In June 2007, L. G. sent correspondence to the Veteran's employer, Dan River, Inc., that stated that the Veteran needed to retire immediately due to health concerns. In June 2007 correspondence to VA, L. G. found that the Veteran was permanently and totally disabled due to his PTSD symptoms. However, VA Form 21-4192, dated in July 2007 from the Veteran's employer indicated that he was still employed with no ending date noted, worked 12 hours a day, earned $21,572 (in the year to date), and had been with the same company since 1950. It was not until his August 2009 VA examination that the Veteran reported he left his job "some months" after his June 2007 VA examination, reportedly due to his PTSD symptoms. On his VA Form 21-8940 (submitted in October 2009), he provided conflicting information concerning whether he left his employer of over 50 years due to his service-connected disability, but he reported that he last worked full-time in September 2007. He also later reported that this employer had gone out of business after he had retired. Although there is nothing in the record before the Board that supplies the exact date in September 2007 on which the Veteran ceased working, the Board finds that there is no evidence of record to show employment beyond September 1, 2007. In order to receive a total disability rating under § 4.16(a) prior to August 28, 2009, it must be determined that the Veteran's PTSD rendered him unemployable as of some prior date without regard to any impairment caused by nonservice-connected disabilities. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the 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). The Board has reviewed the claims file, to include the VA and private medical records that document symptoms and manifestations of the Veteran's service-connected disabilities. As discussed above, the Veteran's service-connected PTSD has been attributed by the Veteran, L.G., and the VA examiner to be a contributing factor in the Veteran's current unemployment or general unemployability. Although the circumstances of the Veteran's retirement from his employer of over 50 years are vague and, to some extent, contradictory, and whether, and to what extent, the subsequent demise of that employer played a role in the Veteran's cessation of employment, the Board will also resolve reasonable doubt in the Veteran's favor - particularly in light of the RO's determination that the Veteran's PTSD renders him unable to secure and/or follow substantial gainful employment - and conclude that the Veteran left his long-term employment due to his service-connected PTSD. And, although the exact date in September 2007 was not reported, the Board will resolve all doubt in favor of the Veteran and grant an effective date of September 1, 2007 for entitlement to TDIU. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2010). In summary, the Board finds that, based on the medical evidence of record, and having resolved doubt in favor of the Veteran, an earlier effective date of September 1, 2007 is warranted for a TDIU. The Board notes that an effective date prior to September 1, 2007 is not warranted. Although the Veteran reported on his June 2010 Form 9, that his treating psychiatrist showed that he had been unable to work since at least October 2005 due to his PTSD, the evidence of record indicates the Veteran was employed at least until September 1, 2007. The evidence does not reflect that the Veteran missed any time from work prior to September 2007 as a result of his PTSD. While the Veteran was reported to be having significant difficulties with stress on the job prior to September 1, 2007, it does not appear that his PTSD rendered him totally unable to work prior to that date. IV. Duties to Notify & Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In the decision above, the Board has granted the Veteran's claim for a higher initial disability evaluation for PTSD, to the extent that it assigned a 70 percent rating from the effective date of service connection, and entitlement to an earlier effective date for TDIU, to the extent that it assigned an effective date of September 1, 2007. The Board does note that it did not grant a 100 percent rating from the effective date of service connection for PTSD, which is what the Veteran was seeking. In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) with regard to the initial service connection claim for PTSD was furnished to the Veteran in January 2006, prior to the date of the issuance of the appeal rating decision. With regard to the initial TDIU claim, notice was furnished to the Veteran in May 2007, prior to the date of the issuance of the appealed rating decision. The question of whether a further notice letter for such "downstream" issues as increased initial rating and effective date claims is required was addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedent opinion, the General Counsel held that, in such circumstances, a Statement of the Case was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the required Statement of the Case was issued in September 2005. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, the Veteran was afforded multiple VA examinations that addressed his PTSD and TDIU claims. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER From October 19, 2005, an initial rating of 70 percent, but no higher, for PTSD is granted, subject to the laws and regulations controlling the award of monetary benefits. From August 28, 2009, an initial rating in excess of 70 percent for PTSD is denied. Entitlement to an effective date of September 1, 2007 for entitlement to TDIU is granted. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs