Citation Nr: 1304820 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-00 037A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date prior to July 26, 2007 for the assignment of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for the time period prior to July 26, 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which granted an increased rating of 100 percent for the Veteran's service-connected PTSD, effective July 26, 2007. The Veteran appealed the effective date assigned for the 100 percent rating, and the case was referred to the Board for appellate review. In August 2012 the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The issue of entitlement to a TDIU for the time period prior to July 26, 2006 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A December 2003 Board decision granted service connection for PTSD. An April 2004 rating decision implemented the Board's decision granting service connection for PTSD; a 50 percent rating was assigned, effective January 24, 2001. The Veteran did not appeal the April 2004 rating decision. 2. In June 2004 the Veteran filed a claim for an increased rating for his service-connected PTSD. 3. In an unappealed October 2004 rating decision the RO denied a rating in excess of 50 percent for PTSD. 4. In June 2005 the Veteran filed a claim for an increased rating for his service-connected PTSD. 5. In an unappealed January 2006 rating decision the RO denied a rating in excess of 50 percent for PTSD. 6. Based upon the review of May 2007 VA treatment records showing that the Veteran was being treated on an inpatient basis at a VA Medical Center (VAMC) for his PTSD, the RO issued a July 2007 rating decision on August 1, 2007, which granted a temporary 100 percent rating for the Veteran's PTSD effective May 21, 2007 and then assigned a 50 percent rating as of July 1, 2007. 7. The May 2007 VA treatment records did not show an intent to file an informal claim for an increased rating for PTSD. 8. Subsequent to the unappealed January 2006 rating decision, the Veteran first filed an informal claim for an increased rating for his service-connected PTSD on July 26, 2007. 9. The evidence of record shows that it was factually ascertainable that one year prior to July 26, 2007, namely on July 26, 2006, the Veteran's PTSD met the criteria for a 100 percent rating. CONCLUSION OF LAW The criteria for entitlement to an effective date of July 26, 2006, but no earlier, for the assignment of a 100 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's claim for an earlier effective date, the Board notes that such notice is unnecessary in this case because the Veteran is challenging the effective date for the grant of an increased rating for PTSD in the December 2007 rating decision. If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105 (d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006) (in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required). Thus, the Board finds that under the holding in VAOPGCPREC 8-03 and in Dingess, further notice from VA to the Veteran is not required with regard to his claim for an earlier effective date prior to July 26, 2007, for the award of an increased rating for PTSD. In addition, the duty to assist the Veteran has been satisfied in this case. All available relevant evidence pertinent to the issue on appeal is in the claims file, including service treatment records, private treatment records, VA treatment records and VA examination reports, records associated with a Social Security Administration (SSA) disability benefits determination, and lay statements. The Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing reflects that he has indicated the existence of any relevant evidence that has not been obtained or requested. Finally, the Board notes that adjudication of a claim for an earlier effective date in this case is based upon evidence already in the claims file; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the Veteran. Consequently, there is no additional development that can be conducted, nor any other records which can be obtained, which would substantiate the Veteran's claim. For example, any additional medical examination would only document the current severity of the Veteran's service-connected disability, and not whether he satisfied the criteria for an effective date earlier than July 26, 2007. Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was a participant in the claims process, identifying relevant treatment records and providing statements on the severity of his disability. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Law and Analysis Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400. An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). Generally then, to determine an appropriate effective date for an increased rating, the Board must determine when a claim for an increased rating was received and, if possible, when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 510(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The submission of certain medical records may constitute an informal claim for an increase in disability compensation. 38 C.F.R. § 3.155(a). When considering "informal claims" based on medical records, the "date of claim" will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment and the date of receipt for evidence from a private physician, layman, state, or other institution. See 38 C.F.R. §§ 3.155(c); 3.157(b). Service connection for PTSD was originally denied in an August 2001 rating decision. The Veteran filed a notice of disagreement in March 2002 with respect to the denial of service connection for PTSD. Specifically, the Veteran's March 2002 notice of disagreement (a VA Form 21-4138) requests that the statement be accepted as a notice of disagreement with the decision to deny the claim for PTSD. A statement of the case was issued in June 2002. The Veteran filed a VA Form 9 and after supplemental statements of the case were issued in November 2002 and March 2003, the claim was certified to the Board for appellate review. In a December 2003 decision, the Board granted the claim of entitlement to service connection for PTSD. In an April 2004 rating decision, the RO implemented the Board's December 2003 decision and granted service connection for PTSD. A 50 percent rating was assigned, effective January 24, 2001. In June 2004 the Veteran sent a letter to his Congressman's office, indicating that he could not believe that he received a rating of 50 percent for a single individual when he had been married for 37 years. He stated that he had submitted a VA Form 21-8940 (Veteran's Application for Increased Compensation based upon Individual Unemployability) which showed decreasing income since 1993, ending with zero earnings from October 1, 2002 to the present. With this information available to VA and with the requirements for a 100 percent disability rating, the Veteran stated that he did not know why he did not receive a 100 percent disability. Also in June 2004, the Veteran's representative submitted a memorandum which notes that the Veteran had been granted service connection for PTSD and assigned a 50 percent rating in an April 2004 rating decision. The memorandum then notes that as a result of this action, the Veteran requested that reconsideration be given to the Veteran with the submittal of the VA Form 21-8940 (which was noted to have been submitted on two separate occasions in January 2004). The Board finds that the Veteran did not submit a notice of disagreement regarding the April 2004 rating decision. While the abovementioned June 2004 statements were received within one year of the April 2004 rating decision, neither is a valid notice of disagreement. A notice of disagreement is a statement from a Veteran or his representative expressing dissatisfaction or disagreement with an adjudicative determination. 38 C.F.R. § 20.201. Although special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with the previous determination. Id. The Veteran's June 2004 statement indicates that he was surprised that he was assigned a 50 percent rating for a single individual, that he had submitted a VA Form 21-8940, and that he did not know why he did not receive a 100 percent rating. The Veteran's representative's June 2004 statement indicates that the Veteran wanted his disability evaluation reconsidered along with the previously submitted VA Forms 21-8940. Nowhere in these statements did the Veteran express disagreement with the April 2004 rating decision. (The Board also notes that the Veteran's March 2002 notice of disagreement specifically states that it is a notice of disagreement. The fact that neither of the June 2004 statements was written with similar language tends to show that the Veteran was not in fact trying to file a notice of disagreement with respect to the April 2004 rating decision.) As such, these June 2004 statements are construed as a new claim for an increased disability rating for PTSD, rather than as a notice of disagreement in response to the April 2004 rating decision. Based upon the June 2004 statements, which were considered by the RO to be a claim for an increased rating, the RO issued a rating decision continuing the 50 percent rating for PTSD. Notice of this October 2004 rating decision was mailed to the Veteran in November 2004. In June 2005, the Veteran submitted a VA Form 21-4138, in which he stated that he was requesting a new compensation and pension evaluation for his service-connected PTSD. He went on to state that he is currently rated at 50 percent and he was requesting a rating of 100 percent. Again, nowhere in this statement did the Veteran express disagreement with the October 2004 rating decision which was issued in November 2004. He merely requested a new examination and a higher evaluation for his PTSD. As such, the June 2005 statement is construed as a new claim for an increased disability rating, rather than as a notice of disagreement in response to the October 2004 rating decision. 38 C.F.R. § 20.201. Based upon the Veteran's June 2005 claim for an increased rating for PTSD, the RO issued a rating decision in January 2006 which continued the 50 percent rating for PTSD. Notice of the rating decision was sent to the Veteran in January 2006. The Veteran did not file a notice of disagreement with respect to this January 2006 rating decision. Instead, VA treatment records showing that the Veteran was admitted to a VA Hospital on May 21, 2007 were submitted to the RO subsequent to the January 2006 rating decision. Thereafter, in a July 2007 rating decision (notice of which was sent to the Veteran by letter dated on August 1, 2007), the RO granted a temporary 100 percent rating, effective May 21, 2007 due to hospitalization over 21 days; a 50 percent rating was assigned from July 1, 2007. The Veteran did not file a notice of disagreement with respect to this rating decision. In sum, the Veteran did not file a document that could be construed as a notice of disagreement with respect to the April 2004 rating decision, the October 2004 rating decision, the January 2006 rating decision, or the July 2007 rating decision. The April 2004, October 2004, January 2006, and July 2007 rating decisions, therefore, became final. See 38 U.S.C.A. § 7105 (2002); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (2012). On July 26, 2007, the Veteran submitted a VA Form 21-4138, in which he requested an increase in his service-connected PTSD. The July 26, 2007 statement was received prior to the issuance of the July 2007 rating decision, as the July 2007 rating decision was not issued until August 1, 2007. The July 26, 2007 statement therefore cannot be considered to be a notice of disagreement with respect to the July 2007 rating decision because it was submitted prior to the time he could have received notice of the July2007 rating decision, and because it does not express any disagreement with the July 2007 rating decision; the July 26, 2007 statement merely requests an increased rating for his service-connected PTSD. In response to the July 26, 2007 claim for increase, in a December 2007 rating decision, the RO granted an increased rating of 100 percent for PTSD. The 100 percent rating was made effective July 26, 2007, the date the claim for an increased rating was received. Notice of the rating decision was sent to the Veteran in January 2008. In a VA Form 21-4138 received by VA in January 2008, the Veteran stated that he had recently received his award of 100 percent for his service-connected PTSD, and he wished to file a notice of disagreement with the effective date of the award. He stated that he feels that the effective date for the 100 percent rating should be January 24, 2001. The Board therefore finds that on July 26, 2007, the Veteran filed the instant claim for an increased rating for PTSD. In the December 2007 rating decision on appeal, the RO increased the rating for PTSD to 100 percent, effective from the date of claim for increase, namely July 26, 2007. The record does not contain any earlier statement (prior to July 26, 2007) indicating an intent to file a claim for an increased rating for PTSD since the last final prior denial in January 2006. The Board notes that the VA treatment record from May 21, 2007 was received prior to the July 26, 2007 informal claim for increase; however, the May 21, 2007 treatment record does not show an intent to file a claim for an increased rating for PTSD. Instead, it shows an intent to file a claim for a temporary total disability rating based upon hospitalization and was treated as such. This claim for a temporary total disability rating based upon hospitalization was adjudicated in the July 2007 rating decision which was issued on August 1, 2007 (granting a temporary 100 percent rating from May 21, 2007 based upon hospitalization over 21 days, and assigning a 50 percent rating for PTSD from July 1, 2007). As such, July 26, 2007 is the date of claim for increase for effective date purposes. Based on the foregoing, the Board finds that a formal or informal claim for an increased evaluation was not received prior to the informal claim filed on July 26, 2007. While the date of claim has been established, the Board must next determine under 38 C.F.R. § 3.400(o)(2) the earliest date as of which it is factually ascertainable that a 100 percent disability evaluation was warranted during the one year prior to July 26, 2007. As previously discussed, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date. Otherwise, it will be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). (As previously noted, the Veteran is in receipt of a temporary 100 percent rating for PTSD from May 21, 2007 but prior to July 1, 2007, based upon hospitalization over 21 days.) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411, which provides that a 50 percent evaluation is warranted 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 warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. The factors listed in the Schedule described above are examples, and not an exhaustive list of the criteria to be considered in an increased rating claim involving a mental disorder. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that "any suggestion that the Board was required . . . to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.") Instead, the evaluation of a service-connected mental disorder such as PTSD must be based on all evidence of record that relates to occupational and social impairment, not just those listed under the appropriate diagnostic code. Id. at 443; 38 C.F.R. § 4.126(a) (2012). One factor to be considered is the GAF score which is a scale reflecting the "psychological, social and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM IV), page 32]. A GAF Score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score of 21 to 30 indicates that behavior is considerably influenced by delusions or hallucinations, or serious impairment in communication or judgment (e.g., sometimes incoherent, acting grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). A GAF Score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant), or where there is 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). A GAF of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends, unable to keep a job). A GAF of 51 to 60 indicates moderate symptoms (e.g., flattened 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). A GAF of 61 to 70 indicates some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or social functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Accordingly, GAF scores do not automatically equate to any particular percentage in the Rating Schedule. Rather, they are but one factor to be considered in conjunction with all the other evidence of record. For background purposes, the Board notes that a November 2005 VA examination report reflects that the Veteran receives outpatient psychiatric care through VA and takes antidepressant medication, which helps control some symptoms. It was noted that the Veteran had never been psychiatrically hospitalized. He also sees a psychologist on an as needed basis, which he feels helps. He denied substance abuse. It was noted that the Veteran has been married for the past 37 years and lives with his wife in their own home. He has three children and five grandchildren. He was described as a good father and grandfather. He reportedly enjoys interacting with his family but finds that after about an hour he begins to become irritable. The noise bothers him. His sister lives two houses away from him and he visits with her occasionally. He enjoys going fishing with his son-in-law and grandkids when the weather permits. He is capable of doing his own driving. Occasionally he takes the wrong exits when he is distracted. He recently began handling the family finances, and his wife reported that he is doing a good job. He does his own activities of daily living. He also helps with the laundry, vacuuming, yard work, and other chores around the house. He has no financial or legal difficulties. He enjoys playing cards with his friends. He stated that he was placed on SSA disability about two years ago due to the combined effects of bipolar disorder and PTSD. When asked to describe how PTSD symptoms interfere with his ability to interact socially, he responded that he avoids noise. He is able to interact for about an hour and then he starts to go into his "shell." He stated that he does not feel he is happy very often. The examiner stated that there did not appear to be any significant change in his level of social functioning as compared to the time of his last examination 14 months ago. It was noted that he graduated from college with a degree in business. He was a computer programmer for years before starting his own woodworking business. He started his own cabinet making business about 18 years ago. He has been gradually handing over responsibility for the day to day operations of his company to his son. He still goes to work but acts more as a consultant. The Veteran stated that he is becoming increasingly forgetful and irritable at work. Objective examination revealed that the Veteran was alert and fully oriented. He was neatly and casually dressed. Grooming and hygiene were adequate. He was polite, pleasant, and cooperative throughout the interview. Attention and concentration seemed adequate. However, when serial sevens were attempted, his responses initially were slow, but soon into the test he stopped trying and refused to continue. Initially he was able to do the computations without difficulty and then seemed to decide to quit after he realized he was doing the task too well. Long term memory seemed adequate. He was able to provide good detail and sequencing of previous events. The Veteran was able to recall three of four simple nouns at five minute recall, and he was able to get the fourth noun with a cue. His mood appeared slightly dysphoric and he described feeling "bland" much of the time. He affect was mildly constricted. He described feeling little pleasure in activities, particularly during the winter months. He stated that he has felt more down since his mother-in-law died recently. He stated that his last significant depressive episode was about three weeks earlier. He denied ever having any suicidal ideation and denied any serious anger outbursts. He does feel irritable at times. There is no evidence of psychosis, although his records indicate that he has had delusional episodes in the past. He denied nightmares about the war. He does experience intrusive thoughts, especially when he is feeling more depressed. He has difficulty coping with sudden noises and crowds. He startles easily. His appetite is adequate. The examiner stated that the Veteran experiences the following PTSD symptoms: distressing, recurring recollections about combat-related trauma experiences; efforts to avoid thoughts, feelings, activities, and situations which arouse recollection of the trauma; diminished interest in significant activities; difficulty falling and staying asleep; diminished concentration; and exaggerated startle response. The Veteran's GAF for his PTSD alone was noted to be 65. The examiner stated that the Veteran is not completely unemployable due to his PTSD symptoms alone. A November 2006 VA treatment record notes that the Veteran was not suicidal or homicidal. His appearance was normal and speech was appropriate. He was cooperative and his affect was appropriate. The Veteran was fully oriented. His motor activity was described as friendly and at ease. His judgment was described as fair. His memory function was noted to be normal. It was noted that the Veteran appeared relaxed and at ease during the session. No future sessions were planned. A December 2006 VA treatment record notes that the Veteran requested assistance with being admitted for a VAMC inpatient program for PTSD. On examination the Veteran was not suicidal or homicidal. His appearance was normal and speech was appropriate. H was cooperative and his affect was appropriate. He was fully oriented. His motor activity was friendly and at ease. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. No further sessions were scheduled. A January 2007 VA treatment record notes that the Veteran discussed his application to be admitted to the VAMC 35 day inpatient PTSD treatment program. On examination the Veteran was not suicidal or homicidal. His appearance was normal and speech was appropriate. He was cooperative and his affect was appropriate. He was fully oriented. His motor activity was friendly and at ease. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. No further sessions were scheduled. Another January 2007 VA treatment record notes that the Veteran introduced himself to new group members. On examination the Veteran was not suicidal or homicidal. His appearance was normal and speech was appropriate. He was cooperative and his affect was appropriate. He was fully oriented. His motor activity was friendly and at ease. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. Future group sessions were scheduled. A February 2007 mental health screening record notes that the Veteran was assessed by phone interview for admission into the VAMC inpatient treatment program for PTSD. He denied suicidal attempts or ideation. He was noted to be a computer consultant for a time and had a business selling computer and office furniture. The business went bankrupt and he has not worked in four years. He receives SSA disability benefits. He lives with his spouse of over 30 years. He reported feeling disconnected from others and feeling emotionally numb. He does not relate well to people and can only tolerate children and noise for short periods of time before he becomes panicky and has to leave. This has caused problems with family functions with his grandchildren. He reports broken sleep with weird dreams. He feels that he is becoming more agitated and short-tempered. He struggles with poor memory and concentration and episodic depression. He has periods of intense sadness and a sense of foreboding a great deal of the time. No formal thought disorder or psychosis was noted currently or by history. It was noted that the Veteran was accepted into the program. A February 2007 VA individual treatment record reflects that the Veteran was not suicidal or homicidal. His appearance was normal and speech was appropriate. He was cooperative and his affect was appropriate. He was fully oriented. His motor activity was friendly and at ease. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. Future individual sessions were scheduled. A February 2007 VA group session treatment record reflects that the Veteran was not suicidal or homicidal. His appearance was normal and speech was volatile. He was angry and his affect was appropriate. He was fully oriented. His motor activity was restless, uneasy, and tense. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. Future group sessions were scheduled. VA group and individual treatment sessions in March 2007 note that the Veteran was not suicidal or homicidal. His appearance was normal and speech was volatile. He was angry and his affect was flat. He was fully oriented. His motor activity was restless, uneasy and tense. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. Future individual and group sessions were scheduled. It was noted that the Veteran reported increased levels of anxiety recently. He discussed his isolation and alienation. April 2007 VA treatment records note that the Veteran discussed his participation in gardening, working in his yard and house, and being with his family. His appearance was normal and his speech was volatile. He was angry and his affect was flat. He was fully oriented. His motor activity was restless, uneasy, and tense. His judgment was fair. His memory function was normal. He appeared restless and tense during group session. An April 2007 individual VA treatment record notes that the Veteran reported a stable work history until 1996 when he had a mental and emotional meltdown severe enough that he could no longer function. He went on SSA disability. He was not currently suicidal or homicidal. His appearance was normal and speech was appropriate. He was cooperative and his affect was appropriate. He was fully oriented. His motor activity was friendly and at ease. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. Future individual sessions were scheduled. A May 14, 2007 VA group therapy session notes that the Veteran discussed being rejected from the VA PTSD program due to alcohol use. He was not suicidal or homicidal. His appearance was normal and speech was volatile. He was angry and his affect was flat. He was fully oriented. His motor activity was restless, uneasy, and tense. His judgment was noted to be fair. His memory function was normal. He appeared at ease during the conversation. Future individual sessions were scheduled. Although outside of the year period in question, the Board is also including the November 2007 VA examination report for a point of reference. The November 2007 examination report notes that the Veteran reported that his family and marital relationships have been deteriorating and communications have been worse and worse. The Veteran reported that he gets paranoid, he doesn't talk much, his feelings are gone, he is more irritable, he does not respond much in conversations, and he forgets things. His wife reported that it is like he is not there. He started going to the Vet Center last December, and it has helped. Socially, he described himself as very socially isolated and without initiative to contact others. He has not worked for years. He reports being outside a lot. He does yard work, housework chores, and watches television during the evening. He has a hard time staying focused. He does have family events, and reportedly enjoys the grandchildren for about 30 minutes. After 30 minutes, he becomes paranoid and has to leave. He has no history of suicide attempts or violence/assaultiveness. He has not worked since 2002. He was previously self employed. He is married but socially isolated. He has no problems associated with alcohol use, and he does not use other substances. Mental status examination revealed that he was casually dressed, lethargic, hesitant, and cooperative. His affect was constricted. His mood was depressed and dysphoric. His thought process was unremarkable, as was his thought content. He did not have delusions. His judgment was intact. He has sleep impairment in that he gets five hours of sleep. He spends a lot of time in the recliner, and wakes up frequently. He has some nightmares about Vietnam. He does not have hallucinations. In terms of inappropriate behavior, he experiences some irritability, social isolation, and withdrawal. He does not have obsessive or ritualistic behavior. He has panic attacks when his grandchildren are around more than 30 minutes. He gets very anxious, nervous, his hands shake, and he has trouble in any public setting with groups of people. He has no suicidal thoughts. He has fair impulse control. He does not have episodes of violence; when he is angry, he will withdraw. He may not shower, change clothes, or shave for several days if his wife does not remind him. He avoids situations with groups of people. He reported problems with his memory in terms of forgetfulness and distractions. His PTSD symptoms cause persistent reexperiencing the traumatic event by: recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. He has persistent avoidance of stimuli associated with the trauma; numbing of general responsiveness in terms of efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect (unable to have loving feelings); and sense of foreshortened future. He also has difficulty falling or staying asleep, irritability, or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The symptoms are chronic. It was noted that since the last examination, the Veteran's routine responsibilities of self care, family role functioning, social interpersonal relationships, and recreation or leisure pursuits have worsened. He remains socially isolated. He has no social relationships. He spends time at home working in the yard or watching television. He has decreased energy and motivation, panic attacks, anxiety, depressed mood, isolation, and difficulty concentrating and focusing. He has problems with memory, irritability, and anger, and problems with hygiene and ability to perform activities of daily living. The examiner opined that the Veteran's PTSD signs and symptoms cause total occupational and social impairment. The examiner opined that the Veteran remains severely impaired in his ability to interact with others, focus, concentrate, be around others, and complete tasks. His GAF score was noted to be 45. Based upon the above listed medical evidence, the Board finds that it is factually ascertainable that the Veteran met the criteria for a 100 percent rating earlier in the one year period prior to July 26, 2007. Specifically, the Board notes that at the November 2005 VA examination, the Veteran was described as a good father and grandfather. He reportedly enjoyed interacting with his family up to about an hour. He enjoyed fishing with his son-in-law and he reportedly enjoyed playing cards with friends. Although he did not report feeling happy very often, his last serious depressive episode was three weeks earlier, and his symptoms overall did not show that he was totally socially impaired. He expressed concern with memory, but the examiner stated that memory was intact. Moreover, grooming and hygiene were adequate, and no problems were described in that regard. Furthermore, the examiner stated that the Veteran's PTSD did not render him totally occupationally impaired. The Veteran's GAF score for his PTSD was noted to be 65, representing only mild symptoms. However, by December 2006 the Veteran's symptoms had deteriorated to the point that he sought help in being admitted to a VAMC inpatient PTSD treatment program, and was in fact admitted to such program in May 2007. The Veteran is in receipt of a temporary 100 percent rating for such hospitalization. The Board notes that the November 2007 VA examiner opined that the Veteran was totally socially and occupationally impaired by his PTSD symptoms and signs. The November 2007 examination report reflects that the veteran complained of being more irritable and feeling more isolated. He no longer reported enjoying some of the activities he had reportedly enjoyed at the time of the November 2005 VA examination. His irritability increased to the point that he could not spend more than 30 minutes of time with his grandchildren. He also reported that his family and marital relationships had deteriorated. Moreover, his personal hygiene had deteriorated. The Board finds that the medical evidence shows that at some point between the November 2005 VA examination and the November 2007 VA examination, the Veteran's PTSD increased in severity to warrant a 100 percent disability rating. When considering the full year prior to the July 26, 2007 claim for increase, the Board finds that, based upon the evidence set forth above, it is reasonable to conclude that the increase in the disability to warrant a 100 percent rating occurred on July 26, 2006, a full year prior to the date on which the Veteran filed his claim for increase. As previously noted, in December 2006 the Veteran sought help in the admission process for a PTSD inpatient program. The Board cannot conclude that the Veteran's increased symptomatology began exactly on the date that he sought help in the inpatient treatment admission process. Therefore, in giving the Veteran the benefit of the doubt, the Board finds that it is factually ascertainable that the increase in disability warranting the 100 percent disability rating for PTSD occurred on July 26, 2006. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361,(Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an earlier effective date of July 26, 2006 for the award of a 100 percent rating for PTSD is granted, subject to the criteria governing the grant of monetary benefits. REMAND In July 2007 the Veteran filed a claim for TDIU. In the December 2007 rating decision on appeal, the RO acknowledged that the Veteran had submitted a claim for TDIU which was received on July 26, 2007; however, the RO determined that because the Veteran's service-connected disability (PTSD) had been assigned a 100 percent evaluation, entitlement to TDIU was not for consideration. However, the Board notes that the issue of entitlement to TDIU for the time period prior to July 26, 2006 has been raised by the record. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider a total rating for compensation based upon individual unemployability). In this regard, a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the Veteran or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id at 455. Here the record reflects that prior to July 26, 2006, the Veteran had claimed both that he was entitled to an increased rating for his service-connected PTSD, and that he was unemployable due to his PTSD signs and symptoms. As the RO has not yet considered whether the Veteran is entitled to TDIU for the time period prior to July 26, 2006, the issue must be remanded to the RO for initial adjudication. VA's Office of General Counsel has stated that when the issue of entitlement to a TDIU for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the RO is necessary with respect to TDIU, the Board should remand rather than refer the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). In this case, for the time period prior to July 26, 2006, the Veteran is service connected for two disabilities (PTSD rated as 50 percent disabling and multiple small shrapnel scars on the dorsum of the left hand rated as noncompensably disabling) with a combined evaluation for compensation of 50 percent. The Veteran's service-connected disabilities, therefore, do not satisfy the minimum percentage requirements set forth in 38 C.F.R. § 4.16(a) for this time period. However, even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU rating is warranted if the Veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, the Board finds that the issue has been raised by the evidence of record, and referral for consideration of an extraschedular TDIU rating is warranted for the time period prior to July 26, 2006. Thun v. Peake, 22 Vet. App. 111 (2008). Based on the foregoing, the Board finds that the issue of entitlement a TDIU rating prior to July 26, 2006, including on an extraschedular basis, should be remanded for referral to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claim for entitlement to a TDIU for the time period prior to July 26, 2006 to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether an extraschedular rating is warranted. 2. If the benefit sought on appeal is denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs