Citation Nr: 1314741 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 00-18 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) for the period from October 1, 1999, to November 5, 2012, exclusive of periods of temporary total evaluations due to hospitalization. 2. Entitlement to an effective date earlier than October 1, 1999, for the assignment of a 70 percent schedular evaluation for PTSD. 3. Entitlement to an effective date earlier than July 1, 2002, for the assignment of a total disability rating based on individual unemployability due to service-connected disability (TDIU rating). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of March 2000, which increased the 10 percent rating for service-connected anxiety disorder to 30 percent, effective from September 28, 1999. During the ensuing appeal period, the diagnosis of the service-connected disability was changed to PTSD. The Veteran was afforded personal hearings at the RO in August 2000 and February 2005. Over the course of the appeal period, temporary total hospitalization ratings under 38 C.F.R. § 4.29 were also assigned for the service-connected psychiatric disability from August 2, 1999 to September 30, 1999; from May 20, 2002 to June 30, 2002; and from July 29, 2002 to August 31, 2002; and from September 19, 2005, to October 31, 2005. Additionally, in a July 2003 rating decision, the 30 percent rating for PTSD was increased to 70 percent, effective July 1, 2002, and a TDIU was granted effective that date. As discussed below, the Board finds that the Veteran indicated that he did not agree with the effective date within one year of the September 2003 notice, and the issue is properly before the Board as part of the increased rating issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (TDIU claim is part of an increased rating claim and is properly before the Board when such claim is raised by the record). In a decision dated in January 2009, the Board granted a 70 percent rating for PTSD, effective from October 1, 1999, through June 30, 2002, and remanded the issue of entitlement to a rating in excess of 70 percent from July 1, 2002. The Board also denied an effective date earlier than October 1, 1999, for the grant of a 70 percent rating. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a joint motion to the Court, the parties (the Veteran and the VA Secretary) requested that the Board decision be vacated, insofar as it denied a rating in excess of 70 percent effective from October 1, 1999, through June 30, 2002, and an earlier effective date for the 70 percent rating prior to October 1, 1999. A January 2010 Court order granted the joint motion. The Board remanded the issues for additional development in November 2010 and again in April 2012. Additionally, in December 2012, the RO granted a 100 percent schedular rating for PTSD, effective November 6, 2012. This constitutes a complete grant of the benefit sought effective that date, but the other issues remain on appeal, as a grant of less than the maximum available rating does not terminate the appeal, unless the veteran expressly states he is satisfied with the assigned rating. See AB v. Brown, 6 Vet.App. 35, 38 (1993). All of the remanded issues have now been returned to the Board, with the issues as stated on the title page of this decision. The issue of entitlement to an effective date earlier than October 1, 1999, for the assignment of a 70 percent schedular evaluation for PTSD, to include whether an evaluation in excess of 10 percent is warranted prior to that date, 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. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. For the period from October 1, 1999, to November 5, 2012, the Veteran had deficiencies in most areas due to PTSD, but he did not have total social and occupational impairment due to symptoms of PTSD. 2. The Veteran became unemployable due to service-connected PTSD on February 15, 2002. 3. Prior to that date, the Veteran engaged in substantially gainful employment. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 70 percent for PTSD for the period from October 1, 1999, to November 5, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an effective date of February 15, 2002, but no earlier, for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). Concerning the increased rating issue, in letters dated in May 2006 and February 2009, the RO advised the claimant of information necessary to substantiate the claim. He was advised of various types of lay, medical, and employment evidence that could substantiate his claim, and of his and VA's respective obligations in obtaining such evidence. The Veteran was also advised that a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). He was also provided with information regarding effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although these letters were not sent until after the initial adjudication of the claim, they were followed by readjudication and issuance of the statement of the case in July 2007-as well as by multiple subsequent readjudications and issuances of supplemental statements of the case, most recently in December 2012. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Concerning the earlier effective date issue decided herein, the United States Court of Appeals for the Federal Circuit has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the effective date assigned by an RO in connection with a compensation award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran has not claimed any prejudicial notice errors. Hence, the VCAA notice requirements have been satisfied. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159. VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained, as have VA treatment records, including hospitalization reports and Vet Center records. Private treatment records adequately identified by the Veteran have also been obtained. Records were obtained from Social Security Administration (SSA). VA examinations were provided in February 2000, October 2006, and November 2012; those examinations, in conjunction with the other evidence of record, describe the disability in sufficient detail for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The most recent examination resulted in an increase in the Veteran's rating to 100 percent, effective the date of the examination; thus, the question of a material change in the service-connected disorder since the last examination does not arise. 38 C.F.R. § 3.327(a). The case was previously remanded in January 2009 to obtain all VA clinical records, inpatient and outpatient, dated from November 2002 to October 5, 2005 and from July 11, 1007 to the present, and all Vet Center records pertaining to the veteran dated from July 1, 2002 to the present. In November 2010, the appeal was remanded to obtain any records documenting the Veteran's treatment for PTSD from the Grand Rapids Vet Center for the period from 1996 to present, and records from the Grand Rapids VA outpatient clinic for the period prior to March 2001, and from the Battle Creek VAMC from April 20, 2010. In April 2012, the appeal was again remanded to obtain all records of treatment for his PTSD from the Vet Center in Grand Rapids, Michigan for the period from July 1985 to January 2005 and from BRAINS, LLP, Grand Rapids, Michigan, dated from April 2004 to the present. Of these requested records, as discussed in the remand below, it is not clear that all Vet Center records prior to October 1999 have been obtained. The other VA records were requested, and the Battle Creek records, as well as Grand Rapids VA outpatient clinic records for the period prior to March 2001 were provided. Although there were no records at Grand Rapids dated between November 1999 and February 2001, the content of those records indicates that his only Grand Rapids treatment during the intervening period was most likely at the Vet Center. Moreover, for records dated between October 1999 and February 2001, it is not essential that such records be obtained, because the Veteran was employed and in receipt of a 70 percent rating. The Veteran's gainful employment during this period precludes a TDIU, which requires, at best, marginal employment, which, as discussed below, has not been shown. In addition, it precludes a 100 percent rating, because such requires total occupational impairment. Therefore, the records could not conceivably form the basis for a grant of either issue decided below, and further attempting to obtain any would be "an idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Records from BRAINS, LLP, Grand Rapids, Michigan, were only dated from September 2009, and not from April 2004. However, the request for the records from BRAINS beginning in April 2004 was based on a statement from a psychologist who said he was treating the Veteran at BRAINS and had treated him since 2004. However, he did not say he had been treating him at BRAINS since 2004; this psychologist previously treated the Veteran at the Vet Center prior to moving to BRAINS. The Vet Center records show that the psychologist treated the Veteran at the Vet Center through July 20, 2009, at which time he informed the Veteran he was leaving VA in August 2009. Therefore, all of the BRAINS records have been obtained. The Board finds that with the exceptions explained above, the remand terms have been substantially complied with. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (remand terms must be complied with, unless an explanation is provided as to why the terms will not be fulfilled). Thus, there has been substantial compliance with the prior remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the veteran is entitled to substantial compliance with the Board's remand directives). II. Increased Rating for PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Although the disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the appeal period, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Currently, a 70 percent schedular rating is in effect for the period from October 1, 1999, immediately following a temporary total rating for a hospitalization from August to September 1999, through November 5, 2012, the day prior to the effective date of an increased schedular rating to 100 percent. Temporary total hospitalization ratings under 38 C.F.R. § 4.29 were assigned for the service-connected psychiatric disability from August 2, 1999 to September 30, 1999; from May 20, 2002 to June 30, 2002; and from July 29, 2002 to August 31, 2002; and from September 19, 2005, to October 31, 2005. Psychiatric disabilities are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. According to the general rating formula, a rating of 70 percent is warranted when a mental disorder results in 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9434. A 100 percent rating is assigned when the condition results in 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. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 2012-7114, Slip Op. at 9 (Fed. Cir. Apr. 8, 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scaled rating 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 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The higher the score, the higher the overall functioning of the individual is. GAF scores ranging from 51 to 60 reflect 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). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (i.e., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect 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). 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). While the Rating Schedule indicates 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 (2012). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence bearing on occupational and social impairment. See generally 38 C.F.R. §4.126; VAOPGCPREC 10-95. The evidence throughout the lengthy period under consideration does not demonstrate 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. Furthermore, other, unlisted symptoms of comparable severity, frequency, and duration have not been shown. In August and September 1999, shortly before the Veteran filed his claim for increase, he was hospitalized at a VA facility. At that time, he was experiencing anxiety, panic attacks, and crying episodes. His GAF score was assessed as 32. On a February 2000 VA psychiatric examination, the Veteran was distraught. He reported that he was divorced but living in a house he was planning to purchase and that he cooked his own meals and did his own laundry. At that time, he was working as a substance abuse counselor with a good work attendance record. He denied, however, any social outlets, and he spent a great deal of time on his own. The Veteran did indicate that he had a platonic relationship with a woman. The Veteran complained of anxiety and panic attacks. Objectively, the examiner noted that the Veteran's hair was not combed and that his trousers were soiled. He was flushed and highly anxious. The examiner diagnosed PTSD characterized primarily by high levels of anxiety, panic attacks, and emotional lability and assessed a GAF score of 55. In September 2000, the Veteran sought mental health treatment at a state facility due to extreme anxiety. He was described as tearful, panicky, and afraid. He was, however, oriented times four. His memory was adjudged as fair, and his affect was described as sad. He spoke haltingly, but his speech was goal directed and clear. There was no evidence of psychosis. A record of contact dated in January 2001 indicated that the veteran was living alone. He had been living with a girlfriend, but he found that he could not tolerate too much emotional involvement. As for employment, he was a substitute teacher. He had lost his job as an alcohol counselor due to a confrontation with his boss. Objectively, the veteran was described as fully oriented but emotionally labile, possessed of tangential speech with loose associations and incomplete sentences. His insight was assessed as good to fair as was his judgment. There was no evidence of delusions or hallucinations. The Veteran was seen in January 2001 in a state-run crisis center. Although he was noted to be substitute teaching, he was also observed to be highly emotionally labile, and with tangential speech, loose associations, and incomplete sentences. He had previously lost a job as an alcohol counselor due to a confrontation with his boss. Objectively, the Veteran was described as fully oriented but emotionally labile, possessed of tangential speech with loose associations and incomplete sentences. His insight was assessed as good to fair as was his judgment. There was no evidence of delusions or hallucinations. The Veteran was hospitalized from February 20, 2001, to March 6, 2001, in a VA facility. Reportedly, he was unemployed. The Veteran complained that he had been unable to sleep during the previous three months and that he felt angry and anxious. On admission, his GAF score was 45. He complained of nightmares and avoidance of others. The Veteran denied suicidal ideation as well as an inclination to hurt others when angry. He denied auditory and visual hallucinations. Objectively, the Veteran was alert and oriented, and displayed logical thought, memory, and concentration. His attention span was grossly intact. The discharge diagnosis was chronic PTSD, and a GAF score of 45/55 was assessed. On March 20, 2001, the Veteran was seen on an outpatient basis; at that time, his symptoms included feelings of hopelessness and helplessness, conversational drift, and tearfulness. In an April 2001 written statement, the Veteran's former girlfriend, indicated that during their relationship, the Veteran had "many highs and lows" as well as sadness and depression stemming from living apart from his children due to divorce. She indicated, however, that although the Veteran's children were now adults, he rarely saw them. She said that the Veteran had very few friends and an inability to form interpersonal relationships. She related that the Veteran was insufficiently organized to manage his finances, keep order in his home, or maintain a healthy schedule. The Veteran was again hospitalized from April 17, 2001, to May 1, 2001, due to depression. He was noted to be back to substitute teaching. He cried at times while speaking of his problems. According to the examiner, he expressed himself well and had a good command of the language. An evaluation on April 23, 2001, resulted in a conclusion that he seemed capable of employment in substitute teaching and as a rehabilitation counselor. On discharge from the hospital, he was considered competent for VA purposes. The discharge diagnosis was recurrent major depressive disorder with a history of PTSD and a GAF score of 45/50. In a June 2001 written statement, the Veteran indicated that he was seeking employment, which was hard to come by. However, SSA records show that he secured a full-time job in July 2001. An April 2002 Vet Center report indicated that the Veteran suffered from anger and rage, which kept him from interacting with others. He was depressed and insecure about the possibility of finding employment and having to interact with co-workers and superiors. Although the Veteran was reportedly homeless and unemployed, he showed a commitment to regularly attending Vet Center treatment sessions. Objectively, the Veteran suffered from depression, extreme anxiety, anger, rage, memory loss, isolation, and nightmares. Due to fear of the dark, the veteran was unable to accept nighttime employment. The author of the report, a psychologist, opined that due to the foregoing symptomatology, the Veteran was not able to obtain or maintain any type of meaningful employment. The psychologist diagnosed PTSD and assigned a GAF score of 40. In a May 2002 written statement, the veteran indicated that since April 2000, he had five jobs, had no social relationships, a broken romantic relationship, and very limited family interaction. The Veteran was hospitalized at a VA facility from May to June 2002. He sought hospitalization due to feelings of depression, anxiety, rage, nightmares, flashbacks, irritability, and social avoidance. On admission, he was tearful with a depressed mood. Hospital reports reveal that the Veteran was alert and oriented, and cooperative with good personal care and normal motor behavior. The Veteran denied delusions and hallucinations as well as suicidal or homicidal ideation. His affect was appropriate. According to the discharge summary, it was noted that his symptoms related to PTSD were chronic and could recur or exacerbate during periods of increased stress. Just prior to his hospitalization, some family issues emerged that could become a major stressor. He had a supportive significant other. The discharge diagnosis was chronic PTSD with a GAF score of 30. According to employment histories that the Veteran completed in July 2002, in connection with a claim for SSA benefits, he had been employed at six jobs from September 1987 to March 2002, with short periods of unemployment between jobs. The Veteran was again hospitalized from July to August, 2002. On admission, his chief complaints were of social withdrawal and anger. He reported that he had been feeling a lot of stress since his father died the previous March. He complained of intrusive symptoms of PTSD including nightmares, flashbacks and fear of the dark. On mental status examination, he was tearful, with a depressed mood, but not psychotic. At the time of discharge his mood was euthymic. A GAF score of 30 was noted. VA outpatient psychiatry clinic records show that in April 2003, the Veteran reported anger about the Iraq war. In June 2004, he was noted to be doing better due to an increase in his compensation, which relieved him of his pressing financial problems and unstable living situation. He was getting along well with his girlfriend. In December 2004, he was kind of stressed by the holidays, but was enjoying having his adult children over for Christmas. He was reading a lot. His mood was anxious, but very friendly. He was well-groomed and well-dressed, had no symptoms of psychosis, and cognitive function and memories were intact. In September 2005, the Veteran was volunteering at a veterans home, and had taken up water color painting. However, he also reported feeling unhappy. The assessment was PTSD, dysthymic disorder, generalized anxiety disorder, and insomnia due to another mental disorder. His GAF score was 50. However, three days later, on September 19, 2005, he presented himself for hospitalization in a VA facility. He reported flashbacks, nightmares, and panic attacks, as well as an increasing fear of death which left him afraid to be at home alone. The admission diagnoses were PTSD and generalized anxiety disorder, with a GAF of 40. By the time of his discharge on October 18, 2005, he had improved significantly, and his GAF score was 60. The Veteran has not required any hospitalizations for psychiatric purposes since the period of hospitalization in September and October 2005. His outpatient treatment records show that in June 2006, he denied depression. He had tearful episodes 3-4 times per week, mostly during his Vet Center counseling sessions. Sometimes he felt hopeless, but indicated he was regaining interest in activities. The Veteran was doing gardening, household chores, dining out, watching television, and using his computer. He reported episodes of high anxiety, and reported that he sometimes had memory, attention, or concentration problems. On mental status examination, however, memory, attention, and concentration were grossly normal. His grooming, hygiene and dress were good. He did not have perceptual disturbances. The GAF score was 45. On a VA examination in October 2006, the Veteran's current symptoms included constant nervousness, panic attacks, sleep disturbance, intrusive thoughts, hypervigilance, and hyperarousal. He reported that his anxiety and nervousness and other symptoms had been slowly worsening. On mental status examination, his appearance was disheveled. He appeared to be extremely anxious. Reportedly, he had much employment dysfunction, and had been fired and unable to hang onto any jobs because of his nervousness, panic attacks and PTSD. He was diagnosed as having PTSD, severe, and panic disorder, severe, with a current GAF of 39. Outpatient treatment records show symptoms such as exemplified in April 2008, when it was noted that the Veteran had no psychotic trends, did not present as depressed, and had mild anxiety. He was doing gardening and household chores, going out to eat, watching television, and using his computer. On mental status examination, his grooming and hygiene were fair; his clothing was in need of laundering. Thoughts were organized, and there was no gross impairment of memory. Similar symptoms were noted in June 2009; at this time, he reported that he continued to have intermittent PTSD symptoms. He said he had bouts of depression, and was currently only slightly depressed. He denied feeling hopeless, and maintained interest, to some extent. He was doing some on-line dating, and learning languages. Vet Center records dated from 2005 to 2011 show that the Veteran was seen for individual and group therapy sessions. He behaved appropriately, and thought content largely centered around issues in his life, such as a daughter in Iraq, dating, and aspirations. At times, he exhibited anxiety, significantly in December 2008, when he was feeling intense rage towards his ex-wife, and appeared tense, anxious and out of control. He was, however, neat, clean, and appropriately dressed. In September 2010, it was noted that his memory, concentration, and attention were impaired. However, in October 2010, his memory seemed intact. On several occasions, he was noted to have tangential speech, which could be redirected. Records from Behavioral Resources and Institute for Neuropsychological Services (BRAINS) dated from September 2009 to March 2011 show that the Veteran's PTSD symptoms were stable but he continued to report frequent anxiety, social isolation, irritability/anger, avoidance of stimuli, and intrusive thoughts, with slight improvement shown. On a VA examination in November 2012, the Veteran said he had stopped going to the Vet Center. On examination, he was clean, neatly groomed, and appropriately dressed. His speech was clear and coherent but pressured. His mood was anxious, expansive, depressed, fearful, and labile. His remote and immediate memory were normal; recent memory was mildly impaired, most likely due to anxiety. Thought process was racing with overabundance of ideas. He ruminated about many things. He did not have any delusions or hallucinations. He did not have inappropriate behavior. He reported poor impulse control. It was noted that he was not able to maintain minimum personal hygiene, noting that he usually went 2 to 3 weeks without taking a shower, and changed his clothes every 2 to 3 days. He managed to brush his teeth, do the dishes, and do laundry, but not much more. He cleaned the house when his children came to visit. He had severe anxiety. The examiner concluded that the Veteran's symptoms of generalized anxiety disorder and PTSD resulted in total occupational and social impairment. His anxiety and worry escalated to such severity that his thought processes, communication and memory were grossly impaired. He was intermittently unable to perform activities of daily living. He had experienced road rage, with the possibility of causing harm. He admitted to poor impulse control with unprovoked irritability and violence. He had difficulty in adapting to stressful circumstances and in establishing and maintaining effective relationships. The above evidence presents an overall picture of an individual who has suffered from symptoms of PTSD and anxiety, which are particularly severe during periods of stress. However, the evidence throughout the lengthy period under consideration does not demonstrate gross impairment in thought processes or communication. He has frequently exhibited tangential speaking, but has been able to return to topic. He has been described as talkative. His thought processes have been largely normal. The most recent examination found that they were grossly abnormal, but the only abnormality noted was racing thoughts with overabundance of ideas, and his speech was described as clear and coherent but pressured. Moreover, such symptom was not noted prior to the effective date of the 100 percent evaluation. He has not exhibited any, let alone persistent, delusions or hallucinations. His behavior has been noted to be appropriate; even the November 2012 VA examination reported appropriate behavior. He has not been in persistent danger of hurting himself or others. The examination reports, hospital summaries, and outpatient treatment and counseling records have consistently been devoid of any such symptoms, although the November 2012 VA examiner noted he experienced road rage, with the possibility of causing harm. Poor impulse control with unprovoked irritability and violence are contemplated by the 70 percent rating, but, in any event, the Veteran has not demonstrated episodes of violence against himself or others. Regarding the intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), this must be considered along a spectrum, because neglect of personal appearance and hygiene are encompassed by the 70 percent evaluation already in effect. It is significant that the only medical report which found intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), was the November 2012 examination, at which time the Veteran was reported to be clean, neatly groomed, and appropriately dressed. Although records show that on occasion he appears disheveled, he is able to feed and dress himself, attend to the wants of nature, and protect himself from hazards of the environment. In any event, because he was granted a 100 percent rating effective the date of the examination, and the evidence does not show that he was unable to maintain minimal personal hygiene prior to that date, it is not necessary to obtain elaboration as to how this is not a matter of volition. He has not exhibited disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Furthermore, other, unlisted symptoms of comparable severity, frequency, and duration have not been shown. See Vazquez-Claudio. The veteran's GAF score has dipped to as low as 30, which is indicative of an inability to function in almost all areas, but that more closely approximates the criteria for a 70 percent rating, rather than a 100 percent rating. Most of his scores have been in the 40's or higher, indicative of severe, but not total impairment. In sum, while the evidence showed deficiencies in many and sometimes most areas contemplated by a 70 percent rating, the symptomatology did not more closely approximate the criteria for a 100 percent rating prior to November 6, 2012. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). In this case, the Veteran has had several psychiatric hospitalizations during the period under consideration. He has been granted temporary total hospitalization ratings for those periods in excess of 21 days. However, there is a three-step analysis in determining whether referral for extraschedular consideration is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). The initial step is a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no further analysis is required. Id. In this case, as discussed above, the criteria for a 70 percent rating reasonably describe the disability level and symptomatology. Moreover, because the schedular criteria are explicitly based on social and industrial impairment resulting from the psychiatric symptoms, the degree of interference with employment has already been considered, notwithstanding the hospitalizations. Therefore, referral is not warranted. See 38 C.F.R. § 3.321(b)(1). Additionally, the evidence does not show that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. See Hart, supra. Accordingly, a question as to which of two evaluations to apply has not been presented, and the disability picture does not more nearly approximate the criteria required for the next higher rating. 38 C.F.R. § 4.7 (2012). In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim for a 100 percent evaluation for PTSD for the period from October 1, 1999, to November 5, 2012 (exclusive of the temporary total hospitalization ratings), and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Earlier Effective Date for TDIU Rating When evidence of unemployability is submitted in the course of a claim for a higher rating for one or more service-connected disabilities, and the evidence of unemployability pertains to the service-connected disability or disabilities at issue, a claim for TDIU will be considered part and parcel of the increased rating claim(s). See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the RO considered the issue of entitlement to a TDIU rating separately in a July 2003 rating decision, which granted a TDIU rating effective July 1, 2002. There is no free-standing claim for an earlier effective date, and, ordinarily, once an effective date has become final, a claimant's only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296 (2006). Thus, it must first be determined whether the July 2003 rating decision became final. The notice of the July 2003 rating decision was sent in September 2003. In an August 2004 statement, identified as concerning the issue of service connection for PTSD (although service connection for PTSD had previously been granted), a number of contentions were set forth, including that the "granting of 50 percent should have been greater and up to 70 percent on the first rating, to include individual unemployability." This suggests a disagreement with the effective date assigned for the TDIU rating, reinforced by a DRO hearing in February 2005, which identified the issue at that time as the effective date of the TDIU rating. Although the testimony itself seemed largely concerned with the effective date of the rating increase to 70 percent, there was some discussion of employability. Therefore, the Board finds that the effective date of the TDIU rating did not become final as a separate issue, and it is now before the Board. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Evidence from the SSA shows that the Veteran was granted SSA disability benefits in October 2002. According to the decision, his disability began February 15, 2002, and was due to affective disorders and anxiety related disorders. The work history submitted in connection with that claim included the Veteran's description of full-time employment with gaps of no more than a few months (and usually less) between jobs from September 1987 or 1988 to March 2003, although he evidently last actually worked on February 15, 2002. Between that date and July 1, 2002, the effective date of the TDIU grant, he was hospitalized also from May 20, 2002, to June 22, 2002, for treatment in a PTSD program. (He was awarded a temporary total rating for this hospitalization effective July 29, 2002.) A Vet Center psychologist wrote, in April 2002, that he did not believe the Veteran was able to work, due to PTSD, and that he had a GAF score of 40, which contemplates symptoms such as inability to work. In view of these factors, the Board finds that the Veteran was unable to engage in substantially gainful employment beginning February 15, 2002, his last day of employment. Prior to that, the Veteran was employed, except for fairly brief periods between jobs. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (proof of unemployment is necessary to raise a TDIU claim); 38 C.F.R. § 4.16. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." Here, as reported on his SSA application, and despite his having had several different jobs, his annual income for every year reported, back to 1987 or 1988, exceeded the poverty threshold, which, in 2002, was $9,183 (with slightly lower thresholds in prior years), as established by the U.S. Department of Commerce, Bureau of the Census. He was not employed in a protected environment such as a family business or sheltered workshop, nor were there any other circumstances indicating that his employment was marginal. Accordingly, the evidence establishes that a TDIU rating is warranted effective February 15, 2002, but that the Veteran was previously engaged in substantially gainful employment since, at the latest, 1988, and an effective date prior to February 15, 2002, is not warranted. 38 C.F.R. § 4.16(a). ORDER Entitlement to an evaluation in excess of 70 percent for PTSD for the period from October 1, 1999, to November 5, 2012, is denied. Entitlement to an earlier effective date of February 15, 2002, for the assignment of a TDIU rating is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND The Veteran contends that an earlier effective date for a 70 percent rating for PTSD is warranted back to December 1984, when he was admitted to St. Mary's Hospital. The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). In June 1985, the Veteran filed a claim for increase. By October 1985 rating decision, the RO denied the claim, and the Veteran's disability evaluation remained at 10 percent. The Veteran did not express disagreement with the October 1985 rating decision, or submit any evidence within a year of the notice of that decision, and it became final. However, it must be determined whether another claim was filed prior to the September 1999 claim for increase. Once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by the VA will be accepted as informal claim for increased benefits for an informal claim to reopen. 38 C.F.R. § 3.157(b)(1) (2012). In determining what constitutes a "report of examination" under 38 C.F.R. § 3.157(b)(1), although such may be less detailed than a formal compensation examination, it must at least "describe the results of a specific, particular examination." Massie v. Shinseki, 25 Vet. App. 123 (2011). Moreover, the report of examination or hospitalization must indicate that the service-connected disability worsened since the last time it was evaluated. Id. For increased rating claims, 38 C.F.R. § 3.157(b)(1) operates in conjunction with section 5110(a) to entitle such a veteran to an effective date for any increase in compensation as of the date of the examination (or, pursuant to section 5110(b)(2), up to one year prior thereto, should the examination report or other evidence demonstrate that the increase in disability was first ascertainable within that period). Id. In this case, the November 2010 Board remand requested Vet Center records dated from 1996 to the present, which yielded a May 1985 readjustment counseling assessment, a client intake sheet dated in April 1987, an intake report dated in September 1996, and an undated intake report which specifically mentions that the Veteran's symptoms have been increasing in severity over the past 10 years. Further action must be taken because, first, this latter record could meet the Massie criteria for a claim under 38 C.F.R. § 3.157(b), and the Vet Center must be requested to provide the date of that evaluation. Next, there is a great deal of ancillary mention, from different sources, of the Veteran's having been treated at the Vet Center on a weekly or at least regular basis since around 1996. Because of this, the fact that no more records were provided is insufficient, alone, to establish their non-existence. The Vet Center must be asked to search for such records and provide an explicit statement if there are no additional records available. Finally, since the Vet Center records included a readjustment counseling note, it must be ascertained whether there may be a different location for such records. Accordingly, the case is REMANDED for the following action: 1. Contact the Grand Rapids Vet Center, and request the following: * The date of a Vet Center Intake form identified as RCS-IN/SEP97 on each if its 3 undated pages (see volume 6 of claims file); * All records, including rehabilitation counseling, of the Veteran's evaluations, individual counseling, group therapy, tests, and other contacts, which occurred prior to September 1999. * An explicit statement that no additional records are available must accompany the response, whether or not additional records are found. * If rehabilitation counseling or other records may be located elsewhere, provide the location. 2. If an alternate location of the records is provided, make all necessary attempts to obtain such records. 3. Readjudicate the Veteran's claim for an effective date earlier than October 1, 1999, for the assignment of a 70 percent rating for PTSD. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and given an opportunity to respond thereto. The appeal must then be returned to the Board for appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs