Citation Nr: 1042012 Decision Date: 11/08/10 Archive Date: 11/18/10 DOCKET NO. 03-16 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. `Entitlement to an effective date earlier than January 29, 2001, for the assignment of a 70 percent rating for the service- connected post-traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than January 29, 2001, for the grant of a total rating for compensation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Jacques P. DePlois, Attorney ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2001 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO) which granted an increased rating of 70 percent for the service- connected post-traumatic stress disorder, and granted a TDIU, both effective January 29, 2001. The Veteran asserts that an earlier effective date is warranted for the increase to 70 percent for the service-connected PTSD, and for the assignment of TDIU. The Board remanded these claims in April 2004 for additional development and adjudicative action. Part of the basis for the April 2004 remand was to have the RO issue a rating decision addressing whether there was clear and unmistakable error in the April 1998 rating decision, which continued the 50 percent evaluation for post-traumatic stress disorder. In June 2004, the RO issued a rating decision, which determined that there was no clear and unmistakable error in the April 1998 rating decision. The Veteran has not appealed that decision, and thus that claim is not part of the current appeal. See 38 C.F.R. § 20.200 (appeal before Board consists of timely filed notice of disagreement in writing and, after the issuance of a statement of the case, a substantive appeal). In a decision promulgated in February 2005, the Board denied an effective date prior to January 29, 2001, for the assignment of a 70 percent rating for the service-connected PTSD, and for the grant of a TDIU, thereby affirming the RO's June 2001 decision. The Veteran appealed the Board's February 2005 decision to the United States Court of Appeals for Veterans Claims (CAVC). In a January 2007 Memorandum Decision, the CAVC set aside the February 2005 decision and remanded the matter for further adjudication, based on a finding that the Board's February 2005 reasons and bases were inadequate. In a subsequent decision issued by the Board, in September 2007, the Veteran's claims for earlier effective dates for the assignment of a 70 percent rating for the service-connected PTSD and the TDIU were once again denied. The Veteran, in turn, appealed the Board's September 2007 decision to the Court. In August 2008, the Veteran and VA's general counsel (the parties) filed a joint motion to vacate and remand the Board's September 2007 decision. The Court granted the joint motion in August 2008, and the case was returned to the Board. The Board denied the claims in a January 2009 decision. By Order dated in January 2010, pursuant to a joint motion, the Court again remanded the decision to the Board for readjudication. The joint motion noted that the Board failed to afford the Veteran a personal hearing. In October 2010, the Veteran's attorney withdrew the Veteran's request for the hearing. Also additional evidence was submitted, and the attorney waived RO consideration of that evidence. FINDINGS OF FACT 1. On April 18, 1998, the RO denied entitlement to an evaluation in excess of 50 percent for PTSD and TDIU. The Veteran did not appeal those determinations and they are now final. 2. An April 27, 1998, VA clinical record is an informal claim for increase for PTSD. 3. An August 27, 1999, VA clinical record is an informal claim for entitlement to TDIU. 4. An increase in disability due to the service-connected PTSD and entitlement to TDIU are factually ascertainable in February 1998. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date of April 19, 1998, for the award of a 70 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.157, 3.400, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for the assignment of an effective date of August 27, 1999, for the award of TDIU have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.157, 3.340, 3.341, 3.400, 4.16 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an October 1970 administrative decision, the RO determined that injuries the Veteran had sustained in a January 1970 automobile-train accident while in service, which included a head injury, were the result of willful misconduct and reckless disregard of the probable consequences of his actions. Service connection for PTSD with an initial 50 percent rating was granted by means of an April 1993 rating decision, effective March 19, 1992. The Veteran was notified of this determination, including his appellate rights, and he did not appeal the decision. In June 1996, the Veteran submitted a claim for increased benefits for PTSD. In a January 1997 rating decision, the RO continued the 50 percent evaluation for PTSD. The Veteran was notified of this determination, including his appellate rights, and he did not appeal the decision. In September 1997, the Veteran submitted a claim for increased benefits for PTSD. A February 1998 VA examination report shows that a social worker had an opportunity to review the Veteran's claims file and interview the Veteran. The Veteran stated that he felt closest to his current wife and stepson and reported that their relationship was "really good," but noted that they had their ups and downs. The Veteran's wife reported that the relationship had problems and that the Veteran had a lot of "rage." She also stated the Veteran had threatened to hit her, but noted that the Veteran had not followed through on his threat. The Veteran stated that the person with whom he was closest to after his wife and stepson was his mother, who he would see two times a week. He noted that they had a "good relationship." He stated that he had one close friend who had moved to Arizona, but denied having any other close relationships, as he did not trust people. He stated that he last worked in 1991 and that "due to a physical injury on the job, he left." The Veteran stated he would drive around two to three hours a day as part of his leisure activities. He also enjoyed housework and yard work and would play with his stepson. He denied having any hobbies. The Veteran reported having nightmares approximately three times a week with some night sweats. He stated that his sleep pattern had been the same for the last one to two years. Regarding intrusive thoughts, he reported that his daily thoughts about Vietnam had increased, which he attributed to getting older. When subjected to an unexpected noise, he was startled. He stated he avoided crowds and would get really anxious. The Veteran stated he spent most of his time at home, which had increased in the last one to two years. His wife complained that the Veteran did not share his feelings with her. The Veteran stated that his prior wife had died in 1995 and that he had no contact with his stepchildren. He reported an increase in his depression symptoms, such as anger, irritability, isolation, and poor appetite. He had poor concentration and short-term memory and feelings of sadness and loneliness. He cried three to four times a week when he was alone. He had poor motivation and self- esteem. The Veteran stated that he would feel angry and that after he would feel angry, he knew he shouldn't have felt that way and would feel "stupid." He denied receiving any treatment at that time for post-traumatic stress disorder. He also denied any suicidal ideations. The social worker stated that the Veteran was polite and provided information willingly with good eye contact but appeared to have difficulty remembering some dates and places. He stated he felt the Veteran's PTSD had increased. He noted the Veteran continued to have nightmares and that the Veteran had reported that his intrusive thoughts about Vietnam had increased by 50 percent. The social worker stated that the Veteran reported an increase in hypervigilance and spending the majority of his time at home, but no significant change in his "numbing symptoms." He also stated that it appeared the Veteran had an increase in depression symptoms and referred the Veteran to the Vet Center for counseling. A February 1998 VA psychiatric evaluation report shows that the examiner had an opportunity to review the Veteran's claims file, including the report by the social worker. The Veteran reported having daily intrusive thoughts about Vietnam and weekly flashbacks. He denied having any friends and reported he suffered from a severe startle response and a lack of trust of other people. The examiner reported past findings related to the Veteran's PTSD and the automobile accident, wherein the Veteran sustained several injuries, including one to his head. The Veteran reported that he was unable to work due to "severe cognitive deficits and physical limitations" stemming from his injuries sustained during a motor vehicle accident in 1970. The examiner stated that the Veteran was cooperative and adequately groomed, was oriented to person, but not to time, place, or purpose of the evaluation. The Veteran displayed poor general fund of knowledge and was unable to recall any of the five most recent presidents of the United States. He displayed poor abstract reasoning skills and had severe difficulties repeating numbers forward and backward. The Veteran was unable to recall what he ate for breakfast the day before and what gift he received from his wife at Christmas. He was also unable to state the date of his wife's birthday or the age of his daughter. The examiner stated the Veteran displayed severe recent and remote memory deficits, displayed a flat affect, and described suffering from a mildly dysphoric mood. He noted the Veteran suffered from an impaired impulse control, given his violent acting out towards his wife. He noted the Veteran denied any past suicidal or homicidal ideation. The rate and flow of the Veteran's speech was within the normal range. The examiner stated the following: The Veteran appears to meet the DSM-IV criteria for chronic post traumatic stress disorder, as well as progressive dementia due to head trauma. The Veteran is severely socially, industrially and emotionally impaired and appears to qualify for a permanent and total unemployability rating. The Veteran is not competent to manage his benefits without the assistance of his wife. The Veteran appears to be primarily unemployable due to his severe cognitive deficits brought on by his head injury which he sustained in 1970. The Global Assessment of Functioning (GAF) score was 35. In an April 18, 1998 rating decision, the RO continued the 50 percent evaluation for PTSD and denied TDIU. The Veteran was notified of this determination that same month, including his appellate rights, and he did not appeal the decision. An April 27, 1998, VA outpatient treatment report shows that the Veteran was seen for low back pain and insomnia due to the back pain. The examiner entered an assessment of PTSD and noted the Veteran had reported having more nightmares. The Veteran reported that he was in a "group" at Klamath Falls. In a January 1999 rating decision, the RO determined that the Veteran was incompetent to handle the disbursement of funds. The Veteran was notified of this determination that same month, including his appellate rights, and he did not appeal the decision. A January 1999 VA outpatient treatment report shows that the Veteran reported his nightmares had gotten worse since he and his wife had separated two weeks prior. He also stated his sleep was worse. The examiner stated the Veteran's mood was somber but that the Veteran was coherent without a psychosis. The Veteran denied any thoughts of harm to self or others. The examiner stated that the Veteran had had a stress exacerbation due to marital separation and that the Veteran was not a danger to himself or others. Another January 1999 VA outpatient treatment report shows that the Veteran reported that medication had helped his mood and sleep. The examiner stated that the Veteran was quiet, calm, polite, and coherent without psychosis. The Veteran denied thoughts of harm to himself and others. A February 1999 VA outpatient treatment report shows that the Veteran was seeking to join a PTSD group. The Veteran stated that he was at 50 percent and would be applying for more. The social worker noted that the Veteran had a head injury in service and had lost the ability to read and write. She also stated that the Veteran reported having nightly nightmares and flashbacks. A March 1999 VA outpatient treatment report shows that the social worker stated the Veteran was doing well with the group. A subsequent March 1999 treatment record shows that the Veteran was anxious about having to go back to Klamath Falls to pick up his mail from his mother. The social worker stated the Veteran would go into flashbacks from Vietnam and was fearful that stress may cause a flashback. Thirteen days later, the social worker stated the Veteran was working on ways to reduce flashbacks of Vietnam. An April 1999 VA outpatient treatment report shows that the social worker stated the Veteran was doing well in the group and supported other participants. She noted the Veteran's feedback was appropriate. A subsequent treatment record from April 1999 shows that the Veteran reported having divorced from his wife and having more problems with PTSD since then. The examiner stated the Veteran had started smoking but was otherwise "doing well." That same day, the social worker stated the Veteran participated well in the group and that the group had worked on PTSD issues, such as dealing with anger problems and authority figures and relationships. A May 1999 VA outpatient treatment report shows that the social worker noted the Veteran was doing well in the group and gave appropriate feedback. She stated that "many" felt depressed due to the rain. In June 1999, the social worker stated the Veteran was participating well in the group and provided appropriate feedback to group members. She stated that "many" were having problems with authority figures and that they discussed nightmares and problems sleeping. At the end of the month, the social worker noted the Veteran was still having problems sleeping. A July 1999 VA outpatient treatment report shows that the Veteran was upset that his wife had told him she wanted nothing to do with him. He expressed believing that there was a reason he survived Vietnam and the car accident, and that there was a reason he would survive the divorce. The Veteran stated that medication had helped with his mood, sleep, and anxiety. The examiner stated that the Veteran had a stoic mood and an appreciative affect. He was coherent without psychosis. The Veteran denied any thoughts of harm to self and others. The Veteran reported he was in a group with a VA social worker and that it was "very helpful for him." An August 10, 1999, VA outpatient treatment report shows that the Veteran was doing well in the social work group. The social worker stated that they worked on PTSD aspects of anger, rage, and flashbacks and issues of betrayal. She noted that the Veteran was depressed over his divorce and how his wife was treating him. He reported increased flashbacks and nightmares. An August 27, 1999, VA outpatient treatment report shows that the Veteran reported that his nightmares and night sweats were occurring nightly and that he had an increase in flashbacks. The Veteran reported that his head injury had caused him not to be able to read or write and had caused short-and long-term memory problems. He stated that his speech was also slow because of it. The Veteran reported that his PTSD symptoms were increasing and that he could no longer work. The social worker entered a GAF score of 45. An August 30, 1999, VA outpatient treatment report shows that the Veteran was "doing better." He reported that the medications were helping his mood and sleep without side effects. The examiner stated that the Veteran had a calm mood and polite affect. He was coherent without psychosis. The Veteran denied thoughts of harm to self and others. The examiner stated the Veteran was oriented times three. A September 1999 VA outpatient treatment report shows that the social worker stated the Veteran did well in the group and gave appropriate feedback to others as needed. She noted the Veteran continued to have flashbacks. A January 2000 VA outpatient treatment report shows that the Veteran was seen by the social worker. He reported he had proposed to his "lady friend" and that they were planning to marry. His nightmares and flashbacks continued. He stated that the girlfriend understood PTSD and that they got along "great." He added that he was excited about the relationship. A March 2000 VA outpatient treatment report shows that the issues discussed during the group session were frustrations of interacting with VA, especially on compensation issues, and low self-esteem. The therapist stated that everyone took part in that day's discussion. An April 2000 treatment record shows that the Veteran participated well in the group and gave other members appropriate feedback. On January 5, 2001, the Veteran submitted a statement asserting that his PTSD was worse. A private psychodiagnostic examination shows that a psychologist, Dr. GW, stated she had examined the Veteran on January 29, 2001. The Veteran reported he had been married five times and that his fifth wife handled him and his emotional problems better than the others had. He denied being on any medication at that time. He reported flashbacks during the day and nightmares at night. The Veteran described himself as "extremely hypervigilant." He stated he got very little sleep at night. He also stated that his social activities had decreased significantly. He noted that he and his wife used to go to concerts and plays, but not anymore. The Veteran stated he did not like to leave home. The psychologist stated that the Veteran's grooming was decent and that he appeared "quite anxious" in the interview. She noted that the Veteran displayed good manners and was cooperative. His speech was normal and understandable. His remote memory appeared to be intact. The Veteran was able to name five recent presidents and could remember his Social Security number. However, short-term memory was poor in that the Veteran was able to remember only two of five items after five minutes. He was particularly disadvantaged in the digit span, being able to give only four digits forward and two backward. The psychologist noted that this was an "improvement" from the Veteran's performance in 1991, when he could give only two digits forward and two backward. The Veteran's remote memory appeared to have improved as well, as did his concentration. The psychologist stated the Veteran's conversation was logical and appropriate. His ability to interpret an abstract saying was adequate, and his reasoning was good. The psychologist stated the Veteran appeared quite anxious and uncomfortable. She entered diagnoses of PTSD, which she stated was "severe," and dementia due to head injury, which she stated was "stable." She entered a current GAF score of 40 "based solely on" PTSD diagnosis. The psychologist stated the following: [The Veteran]'s problem stemming from brain damage from his accident appears to have stabilized and he appears to have compensated in some ways, in that his performance in some areas ha[ve] improved. His cognitive abilities have improved in some areas since 1991. On the other hand, his PTSD appears to be worsening significantly. His isolation is more severe, he does not get relief in terms of being able to sleep or get rid of nightmares, even with various medications. He would be able to still perform his job as a janitor at the mall if his only problem w[as] the brain damage; however, his PTSD symptoms would make it impossible to find any kind of employment at this time. A February 2001 VA PTSD examination shows that the psychologist reviewed the Veteran's medical records and claims file. He specifically indicated that, "This examination will cover the period from 2/18/98 to present." The examiner also noted that special attention was given to the last C&P examination conducted by Dr. M on February 18, 1998. The Veteran reported having intrusive thoughts about once a day. He had nightmares every night and flashbacks every other day. The Veteran stated that he did not watch television because he was worried that Vietnam would be brought up. He did not associate with anyone but his immediate family and was noted to be "extremely distrustful" of people. Affect was blunted. The psychologist stated that the Veteran did not have foreshortened future. The Veteran reported he got about four hours of sleep a night. He stated he had an angry outburst about every other day. He also stated his concentration was impaired. The psychologist noted that the Veteran's concentration problems were "at least in part" due to brain damage. He stated the Veteran was in "considerable emotional distress" daily from his PTSD symptoms. Social functioning was "extremely impaired," and the Veteran was "extremely socially isolated." He noted that the Social Security Administration had found the Veteran to be completely disabled due to a back injury and dementia but that in the absence of these two problems, the Veteran would still be "severely occupationally impaired." He added that due to the Veteran's PTSD symptoms, he would not be able to sustain gainful employment because of his severe problem being around people and getting along with them. The Veteran's thought processes were goal directed and content was not bizarre. His logic was linear, and there was no evidence of looseness of associations. The Veteran was unable to do serial sevens, which the psychologist stated was probably due to the brain injury. The Veteran denied delusions and hallucinations. The psychologist stated that the Veteran behaved appropriately and was cooperative. Eye contact was "good," and there was no unusual motor activity. The Veteran reported having one suicidal attempt in 1995 and his last suicidal thought was approximately one year prior, which was "fleeting." The psychologist stated that the Veteran was unable to recite the alphabet without errors. He was able to state his date of birth and Social Security number, but was unable to name the current president and the last five presidents in chronological order. The Veteran was not aware of current events. Concentration was "impaired." He was able to recall three digits forward and three digits backward. The psychologist stated the Veteran did not have any obsessive or ritualistic behavior which interfered with routine activities. The Veteran's speech was clear, fluent, and at a normal rate. There was no presence of irrelevant, illogical, or obscure speech patterns. The Veteran reported he had panic attacks every other day. His mood was moderately depressed with a blunted affect. The psychologist noted that he called the Veteran's wife and she verified that the Veteran did not know her birthday and could not accurately report his oldest daughter's birthday. She stated that in the two years she had known the Veteran, she had seen him improve in his cognitive functioning. For example, she stated that the Veteran was now able to budget money for the month and not run out of money. She also stated that when she first met the Veteran, he could not go to the store and shop from a short list but that he could now. The Veteran's wife noted where the Veteran had difficulty was reading, writing, and remembering. The Veteran took a test to screen for dementia. The psychologist stated that the Veteran scored 28/30, which was in the normal range "according to Dr. L[]." He noted that senile patients scored in the 9 to 12 range. He stated there was no evidence that the Veteran was "extremely cognitively impaired overall." He noted that the Veteran's score was "much improved over his 1996 testing." The psychologist made the following conclusion, in part: The Veteran clearly has a severe case of chronic PTSD[,] which, in itself, is quite disabling as discussed above. There are assertions in his file that his dementia is progressive and he is primarily unemployable due to his cognitive deficits from his 1970 head injury. The evidence I have does not support these contentions. Dementia due to head trauma typically is nonprogressive (DSM-IV, p. 148). CT Scan evidence supports the hypothesis in the case of this Veteran. In a phone conversation with our radiologist, he reported that the CT scans from 1996 and the recent one done for this C&P in 2001 showed no change. . . . Since the vet had a full-time job 1995-1996 and left because of a back injury, it is not logical to assume that the vet's inability to continue to work was because of his dementia. In spite of the dementia, the vet was holding a job and his dementia is not worsening. Thus, I view Dr. M[]'s statement that "the Veteran appears to be primarily unemployable due to his severe cognitive deficits brought on by his head injury" to be contradictory to the current evidence I have discussed. The psychologist entered diagnoses of PTSD, chronic and severe with panic attacks, and dementia due to head injury. He entered a GAF score of 40, now and for the past 12 months, which was attributable only to PTSD. In June 2004, the RO determined that the April 1998 rating decision, which continued the 50 percent evaluation for PTSD, did not contain clear and unmistakable error. In August 2004, the Veteran submitted additional records from a private facility, which are dated from June 1997 to October 1997. They show that the Veteran complained of flashbacks and about a recent VA examination. In August 1997, the therapist stated that the Veteran and his spouse were doing "fairly well" and noted that they were very committed in their relationship. In September 1997, the therapist noted that the Veteran indicated he was doing well. In October 1997, the Veteran reported having a two-hour intrusive thought about Vietnam. The Veteran contends that an effective date of February 26, 1998, is warranted for the grant of his increased evaluation to 70 percent for PTSD and the assignment of a TDIU, or at least going back to January 7, 1999, based upon an informal claim for increase. Governing regulations provide that a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for increase (which includes a claim for TDIU) shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); see 38 C.F.R. 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is ascertainable that an increase in disability had occurred within one year from the date of claim. If it is factually ascertainable that the increase in disability occurred outside of this timeframe; i.e., sometime prior to the one-year period preceding the date of claim, then the effective date is the date of claim. 38 U.S.C.A. §§ 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). Under 38 C.F.R. 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits, which would include an informal claim for a total rating for compensation based upon individual unemployability. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. 3.157(b). The Veteran's service-connected PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, pursuant to General Rating Formula for Mental Disorders. Under the general formula, a 50 percent rating is assigned for 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 Code 9411. In cases where the schedular rating is less than 100 percent, TDIU may be assigned when the individual is unable to secure or follow a substantially gainful occupation as the result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU's may be assigned, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). Disabilities resulting from common etiology or a single accident, or affecting a single body system, such as orthopedic, will be considered as one disability. Id. When an RO is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of section 4.16(a) and there is evidence of current service-connected unemployability in the claimant's claims file or under VA control, evaluation of that rating increase must also include an evaluation of a reasonably raised claim for TDIU, and VA is required to adjudicate that claim. Norris v. West, 12 Vet. App. 413, 418 (1999); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider TDIU). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An opinion from Alison Prescott, Ph.D., dated in January 2009 is of record. After a thorough review of the Veteran's medical records from the pertinent time period, she stated that the VA examiner who conducted the February 1998 VA examination underestimated the Veteran's PTSD symptoms and she concurred in the opinion of the VA examiner who conducted the February 2001 VA examination that the Veteran's PTSD was chronic and severe. These examiners also disagreed with the opinion of the February 1998 VA examiner who found that the Veteran's nonservice- connected dementia was the major cause of the Veteran's psychiatric impairment. She opined that, based on the Veteran's treatment records and examination reports, that his PTSD increased in severity in February 1998 compared to when he was working as a janitor in the mid 1990's. She also opined that the Veteran's was unable to work solely due to his PTSD starting in February 1998. The Board affords great probative weight to the opinion of Dr. Prescott as she reviewed the Veteran's medical records during the pertinent time period and provided a rationale for her opinion. The opinion of the VA examiner who conducted the February 2001 VA examination also found that the Veteran's PTSD symptoms increased in severity and were severe from February 1998. Here, the facts in this case now establish that the Veteran's disability had increased in severity to the 70 percent level in February 1998, as he has most of the symptomatology contained in the 70 percent rating, particularly severe occupational and social impairment. In addition, he was unable to work due to his PTSD from February 1998. The opinions of Dr. Prescott and the 2001 VA examiner's report clearly show a 70 percent rating is warranted from February 1998. However, the last final denial for an increased rating for PTSD and TDIU was on April 18, 1998. A claim for CUE in that decision was denied in June 2004, was not appealed, and is now final. Accordingly, no effective date earlier than April 19, 1998 (the last final denial) may be assigned even though the evidence of record shows that the increase was warranted in February 1998. The Veteran's date of claim for an increased rating for PTSD is April 27, 1998. As the evidence meets the statutory and regulatory criteria for assignment of a date prior to the date of the claim, April 19, 1998, the day following the last final denial will be the effective date of the increase. See 38 C.F.R. § 3.400(o)(2). In the August 27, 1999, VA clinical note, the Veteran reported that his PTSD symptoms were increasing and that he could no longer work because of them. The Board finds that this established an informal claim for TDIU under 38 C.F.R. § 3.157. From April 19, 1998, the Veteran had a combined evaluation of 80 percent for his service-connected disabilities, as service connection was in effect for PTSD (70 percent); tinnitus (10 percent); shrapnel scars of right arm (0 percent); and right ear hearing loss (0 percent). See 38 C.F.R. § 4.25. Therefore, he met the schedular criteria for TDIU at that time. See 38 C.F.R. § 4.16(a). The medical evidence of record indicates that the Veteran was unemployable due to his service-connected PTSD starting in February 1998. As the evidence demonstrating an inability to work is more than one year prior to the date of the informal claim, the earliest he can be awarded TDIU under 38 C.F.R. § 3.400(o)(2) is the date of the informal claim, August 27, 1999. ORDER Entitlement to an effective date of April 19, 1998, for the assignment of a 70 percent evaluation for PTSD is granted. Entitlement to an effective date of August 27, 1999, for the assignment of TDIU is granted ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs