Citation Nr: 1301830 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 93-27 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial evaluation higher than 70 percent for posttraumatic stress disorder (PTSD) from March 26, 1991 to February 9, 2011. REPRESENTATION Appellant represented by: Robert V. Chisholm ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from November 1967 to June 1970, and from August 1976 to September 1978. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which granted service connection and assigned a 10 percent disability evaluation for PTSD, effective March 26, 1991. The Veteran appealed from the initial evaluation for service-connected psychiatric disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). In July 1993, the Veteran testified during a hearing before RO personnel. Thereafter, an RO rating decision of September 1993 denied entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). This matter was also formally recognized as a matter on appeal. In September 1995, the Board remanded the matters for additional development of the evidence. While the case was in remand status, in October 1996, the Veteran testified at another RO hearing. Through an October 1996 rating decision, the RO increased the initial evaluation for the Veteran's PTSD to 50 percent. While an increased rating was granted, the issue of entitlement to a still higher schedular rating remained in appellate status. A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). Through an April 2001 decision, the Board denied an evaluation in excess of 50 percent for PTSD, and denied a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2002, the Veteran's attorney and VA's Office of General Counsel filed a joint motion for remand. In an Order dated that same month, the Court granted the motion, which vacated the Board's decision, and remanded the matters decided for further development and readjudication. Since that time period, the Board has remanded this case on several occasions for specified evidentiary development. Most recently, in June 2010 a remand was issued for the Veteran to undergo an updated VA Compensation and Pension examination, and to obtain relevant VA outpatient treatment records. While the appeal was pending before the RO (via the Appeals Management Center (AMC), in Washington, D.C.), a November 2011 rating decision was issued granting the Veteran's claim for a TDIU, from February 10, 2011. This decision effectively resolved the Veteran's TDIU claim on the merits. That notwithstanding, in a December 2011 Written Brief Presentation, the Veteran's representative raised the issue of the proper effective date for assignment of a TDIU. In this regard, the representative claims that such issue is already before the Board on appeal, inasmuch as the current claim for increased initial evaluation for PTSD should include consideration of unemployability dating back to 1991, when service connection for PTSD was established. In February 2012, the Board addressed this matter in addition to the claim for entitlement to an initial rating higher than 50 percent for PTSD. The Board considered the representative's argument, but nonetheless maintained that a claim for an earlier effective date is a wholly distinct issue from the underlying matter of the grant of compensation benefits, and therefore must be separately appealed to the Board through formally completing the appellate process on the earlier effective date issue. In view of the foregoing, the Board deemed the issue of an earlier effective date for a TDIU as not currently on appeal. However, the representative's December 2011 filing constituted a timely Notice of Disagreement (NOD) with the November 2011 rating decision which assigned the effective date of a TDIU of February 10, 2011. Under VA law, therefore, the Veteran must be issued a Statement of the Case (SOC) on the earlier effective date claim as the next stage in the appellate process. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). For this reason, in February 2012, the Board remanded the issue of entitlement to an effective date earlier than February 10, 2011 for the assignment of a TDIU so that the RO could issue a statement of the case. In June 2012, a statement of the case addressing the earlier effective date claim for a TDIU was provided. In an October 2012 statement the Veteran's representative alluded to a VA Form 9 that had been filed in July 2012 regarding this matter. The claims file and review of the Virtual VA records, however, does not reflect the filing of any VA Form 9 in July 2012, or within 60 days after the June 2012 statement of the case. Therefore, it does not appear that the issue of entitlement to an earlier effective date for the grant of a TDIU has been properly appealed to the Board. Nonetheless, a derivative claim for a TDIU has been raised by the record, effectively since the date of the Veteran's initial service connection claim for PTSD, as he has contended that he has been unemployable due to his PTSD since that date. Thus, the Board may assume jurisdiction over the issue of a TDIU on a derivative basis as of the date of the Veteran's service connection claim for PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (2001). In a case with similar facts, Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court had determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his PTSD. The Court, citing Rice at 453, reasoned that a request for a TDIU is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability. Thus, explained the Court, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim. In a February 2012 decision, the Board granted another increase in the rating for the PTSD, this time from 50 to 70 percent as of March 26, 1991, the date of the Veteran's claim; and also granted a 100 percent rating for PTSD, effective from February 10, 2011. The Veteran again appealed the Board's decision to the Court. In August 2012, the Veteran's attorney and VA's Office of General Counsel filed a joint motion for partial remand with respect to the Board's decision not to grant a total rating for the entire period dating back to March 26, 1991. The parties agreed that they did not wish to disturb the Board's determination that the Veteran was entitled to a 100 percent disability rating from February 10, 2011. In an Order dated that same month, the Court granted the motion, which vacated the portion of the Board's decision that assigned a 70 percent rating for PTSD from March 26, 1991 to February 9, 2011, and remanded the matter decided for further development and readjudication. The Veteran essentially contends that the 100 percent rating should go back to the date of his original claim on March 26, 1991, so as to fully compensate him. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability for all time periods at issue, unless he expressly indicates otherwise). The parties to the Joint Motion for Partial Remand agreed that it was not clear how the findings in the February 2011 VA examination report, which noted that the Veteran had been unemployable since 1991 would not amount to his being "demonstrably unable to obtain or retain employment" as contemplated under the diagnostic criteria for a 100 percent rating for PTSD as of 1991. See August 2012 Joint Motion for Partial Remand, pp. 2-3. If the Board did not determine that a 100 percent rating was warranted as of 1991, then the parties indicated that a remand was warranted to obtain a retroactive medical opinion regarding the Veteran's employability status from March 26, 1991 to February 9, 2011. The Veteran's representative submitted a private medical opinion dated in October 2012 along with a waiver of RO consideration of the new evidence. In this decision, the Board is increasing the rating for the PTSD to the highest possible level of 100 percent, retroactive to March 26, 1991, the date of receipt of the initial, underlying, claim for service connection for this disability. With respect to the derivative claim for entitlement to a TDIU, on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). But in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating). SMC is payable at the housebound (HB) rate where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute. The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Here, service connection is in effect for PTSD - which, as mentioned, as a result of this decision, will be rated as 100-percent disabling since March 26, 1991. Service connection also is in effect for a scar injury to the nose, rated as 10-percent disabling effectively since November 25, 1981, and left leg hypertrophy, rated as 10-percent disabling effectively since November 25, 1982. The combined rating for these latter two disabilities is 20 percent. See 38 C.F.R. § 4.25 (combined ratings table). In light of Buie and Bradley, and VA's obligation to maximize the Veteran's benefits, VA must determine whether the Veteran meets the criteria for a TDIU based on the aggregate impact of these other service-connected disabilities. But there is no such suggestion or indication, so the granting of the 100 percent schedular rating for his PTSD renders moot any claimed entitlement to a TDIU. FINDING OF FACT Effectively since March 26, 1991, the Veteran has been demonstrably unable to obtain or retain employment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria are met for the assignment of a 100 percent evaluation for PTSD as of March 26, 1991. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.132, Diagnostic Code 9411 (prior to November 7, 1996); 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Claimant As provided by the Veterans Claims Assistance Act of 2000 (VCAA), upon receipt of a complete or substantially complete application, VA has duties to notify and assist claimants in substantiating their claims for VA compensation and other benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board is granting a 100 percent rating for the Veteran's PTSD retroactively effective from March 26, 1991, the date of receipt of his original claim for service connection for this condition. Therefore, this award represents a complete grant of the benefits sought on appeal. Thus, the Board need not discuss whether there has been compliance with the duty to notify and assist provisions of the VCAA because this is ultimately inconsequential inasmuch as the Veteran is receiving the requested benefits, regardless. That is to say, even if, for the sake of argument, he has not received the required notice and assistance, this could amount to no more than harmless error, hence, could not be prejudicial. 38 C.F.R. § 20.1102. See, too, Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (wherein the U.S. Supreme Court made clear that VCAA notice and assistance errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing a notice and/or assistance error, but, above and beyond this, showing how it is unduly prejudicial, meaning outcome determinative of his claim). Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. The applicable rating criteria with regard to rating mental disorders including PTSD, evaluated at Diagnostic Code 9411, underwent revision while this appeal was pending, effective November 7, 1996. See 61 Fed. Reg. 52,695 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130 ). Under the rating criteria in effect prior to November 7, 1996, Diagnostic Code 9411 provided that a noncompensable rating was warranted when there were neurotic symptoms that may somewhat adversely affect relationships with others but which do not cause impairment of working ability. A 70 percent evaluation was assigned for severe impairment in the ability to establish or maintain effective or favorable relationships with people. The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent rating was warranted where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms border on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. The veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132 , Diagnostic Code 9411 (1994). Under the revised rating criteria (in effect as of November 7, 1996), the General Rating Formula for Mental Disorders provides that 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; obsessed 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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 Code 9411 (2012). The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Generally, when a law or regulation changes during the pendency of a claim, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation does not address this subject, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If this is the case, VA ordinarily should not apply the new provision to the claim. Provided there are no resulting retroactive effects, however, VA ordinarily must apply the new provision as of the effective date of the revision. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); see also 38 U.S.C.A. § 5110(g). The former criteria, meanwhile, may be applied both prior to and since the change in the substance of the law or regulation. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) score is a scaled rating reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from 0 to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. An examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging between 51 and 60 are assigned when 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). See DSM-IV. GAF scores ranging between 41 and 50 are assigned when 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). GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is 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; child frequently beats up younger children, is defiant at home, and is failing at school). The Board now turns to the evidence of record, which is primarily comprised of a VA Compensation and Pension examination history over the past two decades. The Veteran initially underwent VA examination by a psychiatrist in May 1991. He then reported that he did not socialize, and had no hobbies. He did not sleep much at night, and gave a history of nightmares about two to three times per month. He described hallucinations and flashbacks after watching war movies. As to delusions, he stated he felt someone was after him all of the time. The noise of a gunshot bothered him if he was near it. Sometimes he would get a pistol and shoot back even though he was not specifically being shot at. He reported some emotional numbness, and not having any friends. He described intrusive thoughts. Upon mental status exam, he was appropriately dressed. There was nothing grossly unusual in his behavior. Speech was normal. He was cooperative. Mood showed that he felt he was depressed, probably six hours out of each day. Thought process was normal. Memory showed some problems. He was well-oriented in time, place and person, but sometimes had problems knowing what he was doing at the time. He was quite alert, with no indication of delusions or hallucinations. There was some depression and anxiety present. Insight was superficial, judgment was fair. There was no suicidal ideation. There were some homicidal feelings, but no attempts. The diagnosis was PTSD, chronic, delayed. In the VA examiner's view, the Veteran identified with some of the symptomatology of PTSD. Social Security Administration disability benefits were granted in August 1991, effective November 1983, with a primary diagnosis of severe lower back pain, and a secondary diagnosis of history of headaches and history of a dysthymic disorder. (This was later revised to a primary diagnosis of chronic lumbar pain syndrome, and secondary diagnosis of PTSD.) The Veteran underwent VA re-examination in August 1993, this time by a psychologist. He reported having recurrent nightmares, intrusive thoughts, flashbacks, and hypersensitivity to loud noises and crowds. He stated that he tried to spend his time avoiding people, and most of the time he was in his house. On mental status exam, the Veteran did not display significant anxiety or dysphoria during the interview. His mood was euthymic and affect was appropriate to content. Thought process and associations were logical and tight. No loosening of associations was noted, nor any confusion. No gross impairment in memory was observed, and the Veteran was well-oriented. Hallucinations and delusions were not noted or complained of. Insight was generally adequate, as was judgment. He denied any suicidal ideation. The diagnosis was PTSD, chronic. Upon re-examination by a psychiatrist in November 1995, the Veteran reported again limited socialization, and no substantial hobbies. When asked about hallucinations he stated that he heard voices, and when asked about delusions he stated that he felt all men were dangerous and there was no way of knowing what would happen next. He described flashbacks in terms of feeling as if he were back in Vietnam, which according to the examiner did not meet the symptom pattern for a flashback. Upon mental status evaluation, the Veteran's speech was coherent and relevant, but not always giving of answers to the questions. His mood showed that he got depressed a lot. When asked about the future he stated that if he did not get some help he would not have a future. Though processes were normal. Memory showed that he had some problems, but he thought this was permissible. He denied difficulty with orientation. The VA examiner found some possible hallucinations and some possible delusions, but no schizophrenic trends as such. The Veteran had depression and anxiety. Insight was superficial and judgment good. There was no suicidal ideation elicited. He reported homicidal ideation but that it would depend on his mood. The diagnosis given was questionable schizophrenia versus PTSD, with a recommended period of extended psychiatric observation to confirm the proper diagnosis. A January 1996 hospital record notes the Veteran had an Axis I diagnosis of PTSD, rule out panic disorder with moderate to severe agoraphobia, rule out schizophrenia versus schizotypal personality disorder, and cannabis abuse. His GAF score was 35-40 with a poor level of functioning. In February 1996, the Veteran underwent an observation and examination at a VA hospital for evaluation for his PTSD. The Veteran then related a history of chronic anxiety in the form of generalized arousal, which included exaggerated startle response, insomnia, night terrors, exaggerated vigilance, and physiologic and affective reaction to reminders. He also related symptoms consistent with social phobia, frequent nightmares, and intrusive thoughts and imagery. He avoided reminders of in-service events, and related some emotional numbing. It was considered that he met the criteria for panic disorder. The Veteran also related a history of auditory hallucinations, which took the form of voices commenting on his actions and surroundings with occasional command-type hallucinations. He mentioned having signs of thought broadcasting and thought insertion at one point, but later could not give any example of either one to the evaluator. The Veteran denied any history of recurrent affective symptoms in the form of depression, mania, or hypomania. A mental status exam revealed that early during hospitalization his responses were flat and very blunted, but that later in the interviews he was more appropriate, though his replies always had a somewhat stilted tone. Affect was also constricted. Thought process was fine, without becoming tangential. Thought content did relate some delusions of persecution in the interview. There were no illusions or hallucinations. He denied any suicidal or homicidal ideation. The VA treatment evaluator's overall opinion was that the Veteran presented a diagnostic challenge, inasmuch as his subjective history was consistent with the diagnosis of PTSD and possibly schizophrenia, and panic disorder. However, there was also objective indication of cannabis usage, and further confusing was that he displayed so little in the way of anxiety symptoms. The conclusion was that the Veteran related a subjective history of PTSD, which unfortunately was not immediately validated by his activity or behavior while being observed for three weeks. Giving the greatest consideration to the Veteran's reported history however, it was felt that he did meet the criteria for PTSD, and possibly for panic disorder, and schizophrenia or schizotypal personality disorder. His GAF score was 40. In connection with a June 1997 VA examination, objectively the Veteran was hesitating, evasive, and given of a very limited response to practically all questions asked of him. He stated that he had a very poor memory and did not recall anything from service. He was very evasive, but in spite of this admitted auditory hallucinations, but denied revealing what the voices told him, saying it was not important because he did not listen to them anyway. The Veteran had strange psychotic-like behavior, but did not have active delusional ideal. Hallucinations were admitted but this alone was not enough to indicate schizophrenic disorder. The diagnostic impression was of schizophreniform disorder, and mild dementia, with PTSD not diagnosed. A non-VA psychiatric evaluation was also completed that same month for purposes of a claim for SSA disability benefits. During this evaluation, the Veteran was rather vague and guarded in giving his personal history. When he did speak, speech was goal-directed and could be followed without difficulty. Mood and affect were blunted. There were no hallucinations or delusions reported. The Veteran was alert and well-oriented, although he did not appear to pass some tests of cognition. Regarding diagnosis, the psychiatrist indicated "PTSD, previously diagnosed," and stated that while there were no immediately available records to support this, the Veteran did appear to meet the criteria for the disorder. Further indicated was that alcohol abuse might be included as an Axis I diagnosis and could be one of the reasons for why the Veteran had been forced to move out of his previous home. The Veteran also appeared to have some cognitive dysfunction, but this was judged to be related to lack of cooperation. The GAF score was 49. Pursuant to a subsequent VA examination of March 2000, the Veteran when asked about PTSD symptomatology tended to be rather vague. He reported having nightmares all the time, but had a great deal of difficulty describing particular nightmares that had anything to do with his experiences in Vietnam. Generally the dreams were about something that had recently occurred, although there were some nightmares about attending a court martial and being in a Vietnamese prison. He generally did not report intrusive thoughts about his military experiences during the day. He was very responsive to loud noises, and uncomfortable in crowds. He would not watch war movies. He reported that he heard voices, which could range from telling him would was going to happen tomorrow to someone yelling at him. He reported visual hallucinations, which involved flashbacks from Vietnam or other post-service events. He stated he believed others were out to hurt him because they did not like him. He said he believed he got special messages from television, and individuals could read his mind. Objectively, the Veteran was casually groomed and made little eye contact. He appeared rather dysphoric. Speech was within normal limits with regard to rate and rhythm. He tended to be quite vague. The predominant mood was one of some depression and affect was appropriate to content. Thought processes and associations were logical and tight, and no loosening of associations were noted, nor was any confusion. No gross impairment in memory was observed, and the Veteran was oriented in all spheres. Hallucinations were reported and a considerable amount of delusional material was noted. Insight was limited and judgment was somewhat impaired. The impression was PTSD chronic, and psychotic disorder not otherwise specified (NOS). A GAF score was assigned of 55, based solely on PTSD symptoms. On re-examination by the same evaluating psychologist in August 2000, the Veteran's presentation was very similar to that noted during his March 2000 exam. He was very vague about PTSD symptomatology, and was a rather poor historian. He reported auditory hallucinations, but could not remember their content. He reported visual hallucinations, saying that he saw silhouettes of things. He reported ideas of reference and persecutory ideation. He believed people could read his mind. He reported nightmares, which he said involved his prison stay in Vietnam. He reported intrusive thoughts, but could not describe them. He described himself as being very easily startled by any kind of loud noise, and said he avoided crowds. Objectively, the Veteran was causally groomed and made virtually no eye contact during the interview. He appeared somewhat confused and rather lethargic. He did not display significant anxiety or dysphoria during the examination. Mood was generally neutral, and affect was somewhat constricted. Thought processes and associations were logical and tight, and no loosening of associations or confusion was noted. No gross impairment of memory was observed. Auditory and visual hallucinations were reported, although their content was vague, and delusional material was quite prominent. The Veteran denied suicidal ideation. He reported some homicidal ideation, but denied any intent. The diagnosis was PTSD, chronic; and psychotic disorder, NOS. The GAF score assigned was 58. The VA examiner further commented that the GAF score was based on the Veteran's PTSD. However, the information the Veteran provided in the August 2000 exam was different from what was noted in previous interviews with other examiners. There were some marked inconsistencies. The nightmares he reported did not appear to be consistent with combat-related experiences. That might have been attributable to the psychotic symptomatology. The examiner knew of no evidence linking schizophrenia to PTSD. Upon re-examination again in February 2004 by this treatment provider (again, a VA psychologist) the Veteran reported that he was doing alright overall regarding mental health problems. He was, however, having difficulty sleeping and frequent nightmares, which involved events from 8 to 10 years previously. He generally denied having problems with intrusive thoughts. He described himself as very easily startled, and stated he avoided crowds. He did watch war movies at times. Objectively, he was casually groomed and cooperative. He did not display any anxiety or dysphoria, and speech was within normal limits with regard to rate and rhythm. Mood was euthymic and affect was appropriate to content. Thought processes and associations were logical and tight, and no loosening of associations or confusion was noted. No gross impairment of memory was observed, and the Veteran was oriented in all spheres. Hallucinations were not complained of and no delusional material was noted. Insight was adequate as was judgment. The Veteran denied suicidal or homicidal ideation. The diagnosis was PTSD, chronic, and the GAF score assigned was 60. The VA examiner further commented that he did not find any evidence that the Veteran was unemployable on the basis of his PTSD. In addition, he reported very few symptoms consistent with a diagnosis of PTSD. The intrusive thoughts he reported were markedly different from the ones he had reported previously. This VA treatment provider examined the Veteran yet again in November 2007. He then described difficulty sleeping, and periodic nightmares which involved "a little of everything." He did not report any nightmares relating to his experiences in the service. He reported having some intrusive thoughts about his time in Vietnam. He stated he had not worked in several years, and did not know when he last worked, and would otherwise occasionally do some odd jobs. He stated he was not able to work primarily because of his back problems. On mental status exam, the Veteran was causally groomed and fully cooperative. He did not appear to display any overt anxiety or overt dysphoria. Speech was within normal limits with regard to rate and rhythm. Eye contact was limited. Mood was generally neutral, and affect was somewhat restricted. Thought processes and associations were logical and tight. No loosening of associations was noted, nor was any confusion. Some memory impairment was noted. He did not report hallucinations or delusions. Insight was limited, and judgment was considered somewhat impaired. The Veteran reported some suicidal ideation but denied intent, and denied homicidal ideation. The diagnosis was PTSD, chronic, and GAF assigned was 57. The examiner commented that the Veteran had reported some stressors not previously reported. It was further commented that the Veteran had reported discomfort around others, a startle response, and intrusive thoughts. However, he tended to recite his reports of intrusive thoughts without showing any overt display of emotion. The intrusive thoughts, startle response, and discomfort around others were all consistent with a diagnosis of PTSD. The frequency of symptoms was somewhat difficult to gauge, but it was anticipated that they occurred at least several times a week. It was believed that these symptoms as reported were mild and had persisted for years. The VA examiner further indicated the belief that some of the Veteran's depression was secondary to his alcohol abuse, as well as incidental to his financial situation. It was thought that there may be an underlying schizophrenia or schizotypal personality disorder which manifested itself in terms of a tendency of isolate from others. The examiner did not find evidence that the Veteran's PTSD symptomatology precluded employment. The Veteran also did not provide evidence of marked impairment in social functioning, indicating instead that he did tend to play cards with friends. Some memory impairment was noted, and the examiner suspected that there were some cognitive processing difficulties that would be noted were he to undergo neuropsychological testing. VA outpatient treatment notes dated in December 2008 and January 2009 indicate a GAF score of 38 with multi psychiatric diagnoses including PTSD. The August 2010 report from a private treating physician, Dr. H.K.P. confirms that during the Veteran's last visit in 2007, the Veteran had presented with a self-inflicted foreign body (a metal shower head) that impacted in the rectum. The Veteran had been taken to surgery where endoscopic removal was done under anesthesia, and then had been discharged following a 2-day hospitalization from March 5 to March 7, 2007. In accompanying correspondence, the Veteran clarified that the circumstances precipitating this incident consisted of a suicidal gesture on his part. A subsequent VA psychiatric examination was completed February 2011. The Veteran then reported that his memory was not good. He was homeless at that point, and had been for the past 8 to 10 years. He stated he was not then receiving treatment for his PTSD. He did endorse that he took two medications for stress. He reported that his mood had been "bad," which he described as depression on and off over the previous several years. He stated that his depression lasted from two to three days, up to two weeks at a time. He reported a poor appetite, and significant problems with sleeping. He reported being easily aroused at nighttime by slight noises. He lived in abandoned houses. He denied thoughts of suicide or homicide. He had nightmares of Vietnam approximately two to three times per week. He had flashbacks of Vietnam approximately three times a day. The Veteran reported that he startled easily. He avoided socializing with others. He reported that he heard voices of people talking to him, which usually made negative comments, and which generally occurred when he was depressed. The Veteran stated he did not feel he was able to work, and identified his eyesight, mental disability and age as contributing factors. He stated he last worked approximately 20 years ago as a laborer at a construction company, where he was employed for two to three years. On mental status exam, the Veteran presented on time, and displayed no psychomotor disturbance. He was dressed casually, a little disheveled appearing. Eye contact was good, and he was pleasant and cooperative throughout the exam. Mood was neutral with a full-ranging, congruent and non-labile affect. Speech was fluent, spontaneous, unpressured and regular in rate and tone. He denied thoughts of suicide or homicide. He denied auditory and visual hallucinations. Insight was fair. The diagnosis given was cocaine dependence; PTSD, chronic; and major depressive disorder with psychotic features. A GAF score was assigned of 50. The VA examiner further commented that based upon the evaluation, it was opined that the Veteran would not be able to work in any substantial capacity. His PTSD had been chronic and manifested by symptoms of irritability, avoidance, nightmares and flashbacks, hypervigilance, chronic sleeping problems and hyperarousal symptoms. According to the examiner, it would be difficult for the Veteran to function in an occupation due to his chronic PTSD symptoms, and the Veteran was not employable. It was stated that "this Veteran became unemployable (as per his report) 20 years ago, which would have been 1991." According to the examiner, the Veteran's PTSD had caused problems in his social interaction due to problems he had had with irritability and his anxiety symptoms (increased startle reflex and flashbacks). It was the opinion of the examiner that the Veteran's PTSD condition (without regard to his nonservice-connected disorder of major depression with psychosis) precluded him from securing or having substantial gainful employment. In October 2012, an employability evaluation was provided by a private psychologist, S.K.W. Dr. S.K.W. noted that an employability assessment had been requested to determine whether it was at least as likely as not that the Veteran's service connected conditions prevented him from securing and following substantially gainful employment and in particular to determine when this inability to secure and follow employment was established. The Veteran had indicated that he did not work beyond the early 1990s. Dr. S.K.W. indicated that he had reviewed the Veteran's entire claims file and conducted interviews on October 7 and 8, 2012. The psychologist went on to document a detailed medical history of the Veteran throughout the years including the finding in November 2007 from the VA examiner who determined that the Veteran's PTSD did not preclude employment. The private psychologist took exception to this finding as the inability to work around others or in close proximity to co-workers or the general public, in fact, was disabling. Dr. S.K.W. determined that in fact if a person needed relative isolation in employment, not only would they need to secure work in such a setting by successfully interviewing for or otherwise security such employment, but they would also require the regular attendance and persistence and pace to maintain such employment. There was no evidence in the Veteran's self reports and reports of others concerning his functioning that would suggest such ability. It was the private psychologist's opinion that one or more days a month of unexpected, unexcused absence compromised a worker's ability to successfully maintain competitive employment. Thus, Dr. C.K.W. determined that the continuity of the medical record and findings and symptoms, the Veteran's self report, and his description of his limitations were the basis for his medical opinion concerning the Veteran's lack of functional capacity for work. Concerning work, the Veteran's lack of work history for the last 15 years demonstrated that he did not have the functional ability to secure or maintain regular attendance at work. It was the opinion of Dr. C.K.W. that it was at least as likely as not that the Veteran's service-connected residual impairments, primarily stemming from PTSD and specifically the associated limits on concentration, persistence, and pace, had rendered him unable to secure or perform a substantially gainful occupation dating back to 1991 when his PTSD symptoms were well-recognized. The opinion was reportedly based on Dr. C.K.W.'s education, training and experience, interview and examinations, and the evidence available, and was expressed within a reasonable degree of vocational certainty. The Board has closely reviewed the evidence in this case, and finds that from the initial March 26, 1991 effective date of service connection for PTSD, continuing through a time period through February 9, 2011, the Veteran's service-connected psychiatric disability is best approximated through the assignment of a 100 percent evaluation. The record shows that the Veteran has not worked since the early 1990s, and was awarded SSA disability benefits in August 1991, effective November 1983, with a primary diagnosis of severe lower back pain, and a secondary diagnosis of history of headaches and history of a dysthymic disorder. However, this was later revised to a primary diagnosis of chronic lumbar pain syndrome, and secondary diagnosis of PTSD. Thus, the Veteran has been determined by SSA to have total occupational impairment due in part to his PTSD as of 1983. Turning back to 1991, contemporaneous with the effective date of service connection, the Veteran's May 1991 original VA examination indicated reports of nightmares, hallucinations and flashbacks. Also reported were intrusive thoughts, and memory problems were noted. There was some depression and anxiety present, and there was no outward indication of hallucinations or delusions. The August 1993 VA exam showed what appeared to be limited improvement, as mood was now euthymic and affect was appropriate to content. Hallucinations and delusions were not part of the Veteran's subjective history. Suicidal ideation was not present. On a VA exam of November 1995, this examiner again found possible hallucinations or delusions. Depression and anxiety were noted. Significantly, the examiner questioned the underlying diagnosis of PTSD as opposed to one of schizophrenia. Then in February 1996, on VA observation and evaluation for three weeks, the Veteran related having many of the previous aforementioned symptoms, including mention now of exaggerated startle response and affective reaction to reminders of service. He reported also having hallucinations; however, the objective medical findings were not significant for this. The overall conclusion was that the Veteran presented a diagnostic challenge, particularly given the lack of anxiety-related symptoms, but that ultimately based upon his reported history a diagnosis of PTSD was warranted. The Board is well aware that the most directly concerning portion of the symptom constellation mentioned by the Veteran is that of intermittent reported hallucinations or delusions. In particular, a June 1997 VA exam identified the report of hallucinations, and apparent strange psychotic-like behavior (though without active delusional ideal). However, the diagnosis given was schizophreniform disorder and mild dementia, with PTSD not diagnosed. When seen later that month for an SSA disability evaluation, the condition of PTSD was diagnosed, but notably, there were no hallucinations or delusions reported. The series of VA psychological exams in March and August 2000 by the same treatment provider did report some characteristic clinical symptoms of PTSD, and the Veteran's subjective history of hallucinations and delusions. The record reflects that the Veteran was hospitalized for a few days in March 2007, for what he described as a suicidal gesture. The Veteran was examined in November 2007. The Veteran reported some suicidal ideation but denied intent, and denied homicidal ideation. He stated he had not worked regularly in several years, and would occasionally do some odd jobs. He stated he was not able to work primarily because of his back problems. The examiner did not find evidence that the Veteran's PTSD symptomatology precluded employment. The Veteran was causally groomed and fully cooperative. Affect was somewhat restricted. Thought processes and associations were logical and tight. No loosening of associations was noted, nor was there any confusion. Some memory impairment was noted. He did not report hallucinations or delusions. Insight was limited, and judgment was considered somewhat impaired. The diagnosis was PTSD, chronic, and GAF assigned was 57. The examiner commented that the Veteran reported discomfort around others, but it was concluded there was no evidence of marked impairment in social functioning. The frequency of symptoms was somewhat difficult to gauge, but it was anticipated that they occurred at least several times a week. It was believed that these symptoms as reported were mild and had persisted for years. The VA examiner further indicated the belief that some of the Veteran's depression was secondary to his alcohol abuse, as well as incidental to his financial situation. It was thought that there may be an underlying schizophrenia or schizotypal personality disorder which manifested itself in terms of a tendency of isolate from others. In February 2011, the VA examiner alluded to the Veteran's reports of not having worked since at least 1991 and noted that the Veteran had been unemployable as of that date. The examiner further found that the Veteran's PTSD had caused problems in his social interaction due to problems he had had with irritability and his anxiety symptoms (increased startle reflex and flashbacks). It was the opinion of the examiner that the Veteran's PTSD condition (without regard to his nonservice-connected disorder of major depression with psychosis) precluded him from securing or having substantial gainful employment. The private psychologist, Dr. S.K.W. also determined in October 2012 that it was at least as likely as not that the Veteran's service-connected residual impairments, primarily stemming from PTSD and specifically the associated limits on concentration, persistence, and pace, had rendered him unable to secure or perform a substantially gainful occupation dating back to 1991 when his PTSD symptoms were well-recognized. The opinion was reportedly based on Dr. C.K.W.'s education, training and experience, interview and examinations, and the evidence available, and was expressed within a reasonable degree of vocational certainty. Dr. C.K.W. also noted that he had considered the VA examiner's opinion in November 2007 that the Veteran's PTSD did not render him unemployable and noted that the Veteran's lack of work history for the last 15 years demonstrated that he did not have the functional ability to secure or maintain regular attendance at work. In weighing the medical evidence of record, the Board resolves all doubt in the Veteran's favor, and determines that the medical evidence shows the Veteran has been demonstrably unable to obtain or retain employment since March 26, 1991. This qualifies for the maximum 100 percent evaluation under the former version of the rating criteria for PTSD. See 38 C.F.R. § 4.132 , Diagnostic Code 9411 (1996). Although some psychiatric symptoms were, at times attributed to non-service-connected psychiatric problems, such as schizophrenia, personality disorder, and alcohol abuse, it was also pointed out that the Veteran's psychiatric condition presented a diagnostic challenge. In such instances, the Court has held that, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Therefore, as the medical evidence does not sufficiently distinguish between the symptomatology associated with the Veteran's PTSD and other non-service connected psychiatric disorders, the Board also is not permitted to do so, and will thus attribute all the Veteran's psychiatric impairment to his PTSD. The Veteran certainly does not meet all of the criteria for a 100 percent rating, but given the above findings, and the findings from some of the SSA records, February 2011 VA examiner, and October 2012 private psychologist that he has been unemployable, at least in part, if not totally, due to his PTSD as of 1991, all doubt is resolved in his favor that he should be entitled to a 100 percent rating for his PTSD effective March 26, 1991. His GAF score range from 55 to 60 indicates more moderate symptoms. However, as noted above, an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. Moreover, the Veteran also had GAF scores of 50, 49, 40, 38, and 35. According to the DSM-IV, scores in the 41-50 range indicate the Veteran had no friends and is unable to keep a job, and those in the 31-40 range indicate he is a depressed man that avoids friends, neglects family, and is unable to work. A finding of unemployability, alone, is sufficient reason to rate the PTSD as 100-percent disabling. See Johnson v. Brown, 7 Vet. App. 95 (1995). For all the foregoing reasons, the Board finds that the evidence supports the assignment of a rating of 100 percent for the PTSD since March 26, 1991. As concerning this effective date, since this claim stems from an appeal of a rating decision granting service connection, the effective date provisions for service-connection claims apply. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later, will be the effective date. The Veteran was discharged from active duty in 1978, and the claim on appeal was not received by the RO until March 26, 1991. Thus, as his claim was not filed within a year following his separation from active duty, the effective date is the later of the two, the date of the claim or the date entitlement arose. The RO apparently determined that entitlement to service connection arose effective the date of his claim on March 26, 1991, and thus assigned the effective date of the claim as the date service connection was warranted. The Board will not disturb that finding. ORDER Entitlement to an initial evaluation of 100 percent for PTSD from March 26, 1991 to February 9, 2011 is granted, subject to the rules governing the payment of monetary benefits. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs