Citation Nr: 1314855 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-48 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent between August 8, 1998 and February 5, 2002, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to February 5, 2002. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Indianapolis, Indiana. In its November 1998 rating decision, the RO denied a disability rating in excess of 10 percent for PTSD. The Veteran initiated and perfected an appeal of this determination. The Board issued a September 2001 decision which granted a 30 percent rating for PTSD, and denied a rating in excess thereof. This award of 30 percent, issued by the RO within a September 2001 rating decision, was made effective August 8, 1998. The Veteran appealed the Board's denial of a higher rating to the U.S. Court of Appeals for Veterans Claims (Court). In January 2002, the Court granted a Joint Motion for Remand which had the effect of vacating the Board's denial of a disability rating in excess of 30 percent, and remanding that issue to the Board for further consideration. Following this action, within a July 2002 rating decision, the Veteran was subsequently granted a 70 percent rating for PTSD (effective February 5, 2002), and a TDIU. In response to this action, the Veteran filed a January 2004 statement which the RO construed as a full withdrawal of the claim for an increased rating for PTSD. In a subsequent statement, however, the Veteran's representative clarified that he wished to withdraw only the issue of a disability rating in excess of 70 percent effective February 5, 2002. Thus, in a January 2013 letter, the Board acknowledged that the issue of a disability rating in excess of 30 percent prior to February 5, 2002 remains on appeal, and is perfected for Board review. The Board also observes that within the September 2001 rating decision, the RO awarded an effective date of August 8, 1998 for the award of a 30 percent rating for PTSD. The Veteran did not appeal the effective date assigned by the RO, and it became final; thus, the issue of entitlement to an effective date prior to August 8, 1998 for the award of a 30 percent rating for PTSD is not before the Board. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT For the period from August 8, 1998 to February 5, 2002, the service-connected PTSD was characterized by nightmares and flashbacks, social isolation, heightened anger and irritability, and other symptoms resulting in serious social and occupational impairment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a schedular evaluation of 50 percent, but no higher, for PTSD have been more nearly approximated for the period from August 8, 1998 to February 5, 2002. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.157, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) 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. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify the appellant under the VCAA. In a March 2006 letter, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. The Board acknowledges that, in the present case, complete notice was also not issued prior to the adverse determination on appeal, which was issued prior to the enactment of the VCAA. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Nevertheless, VA rectified any timing error in providing notice to the Veteran and subsequently readjudicating the claim in January 2009. Id; see also 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Moreover, statements and assertions by the Veteran's representative within a March 2013 brief, as well as evidence submitted in association with this brief, indicate actual knowledge of information and evidence necessary to substantiate the claim on appeal. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). A January 1999 statement of the case notified the Veteran of the criteria for a higher rating for PTSD. The Veteran's representative has submitted argument and evidence regarding the symptoms of the Veteran's PTSD, as well as the effect such symptoms have had on his social and occupational functioning. The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded a VA medical examination, conducted in August 1998, during the time period in question. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disabilities on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Board notes that the Veteran has reported being awarded Social Security disability benefits in the 1980s. Generally, VA has an obligation to obtain Social Security Administration records associated with a veteran's claim for such benefits. See Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In January 2009, however, the Social Security Administration stated the records related to the Veteran's Social Security disability benefits claim were not available. The Veteran was so informed. Remand for further attempts to obtain these records is not required, and would only result in further undue delay. Increased Rating for PTSD The Veteran seeks a disability rating for his PTSD in excess of 30 percent for the period prior to February 5, 2002. The Veteran contends his PTSD has resulted in a higher level of social and industrial impairment, due to such symptoms as a depressed mood, limited social contact, nightmares, insomnia, flashbacks, and poor concentration and memory. Disability evaluations (ratings) are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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 required for that rating. 38 C.F.R. § 4.7. In the case of Hart v. Mansfield, 21 Vet. App. 505 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. As such, the Board will consider whether staged ratings are appropriate to the pending appeal. PTSD is rated under Diagnostic Code 9411, and utilizes the General Rating Formula for Mental Disorders. Under this Code, a 30 percent disability rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. A 50 percent rating is warranted where there is 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 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 where there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation for a psychiatric disability is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA examinations and clinical evaluations reflect assignment of various Global Assessment of Functioning (GAF) scores. The Global Assessment of Functioning is a scale reflecting the subject's psychological, social, and occupational functioning. Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 41-50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). A GAF of 61-70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV) (4th Ed.). The Veteran was afforded a VA psychiatric examination in August 1998. He reported living with his wife of many years, as well as one of his two daughters. He reported that he was currently employed as a truck driver. He reported problems with anxiety and indicated that his PTSD had worsened in the past two years. He also indicated that sometimes he was so nervous that he was unable to swallow food and he felt like he was losing his voice. He also felt more hyper and was more easily irritated. He indicated that he had more problems with intrusive thoughts about his service trauma and his sleep was very poor as he awoke startled throughout the night and had a lot of trouble with bad dreams and perspiring. The Veteran reported that he tended to sleep during the day to make up for sleep that he lost at night. He indicated that his concentration was medium and he continued to have problems with flashbacks and depression. The Veteran reported a poor energy level, fluctuating appetite, and no interest in most activities. He indicated that he worked approximately 6 days a week as a truck driver. On objective examination in August 1998, the Veteran was shown to be overweight and casually and appropriately dressed to the interview. His grooming and hygiene were adequate and he was cooperative with the interview process. He did not demonstrate psychomotor agitation or retardation and he was able to give some information spontaneously. His speech was soft but normal in rate and rhythm and his eye contact was fair. His affect was appropriate to content and seemed depressed. Thought processes were logical, sequential, pertinent, and organized. He did not endorse suicidal or homicidal ideation and did not demonstrate overt signs or symptoms of paranoia, psychosis, or mania. No obsessions or preoccupations were voiced. The Veteran was alert and oriented times three and seemed to have average intellectual functioning based on vocabulary, speech patterns, and fund of general knowledge. The VA examiner opined that, based upon actual symptomatology and objective findings, the Veteran's degree of impairment seemed to be moderate. The examiner assessed that the Veteran was able to work daily but had some trouble with social functioning, with decreased interest in social or pleasurable activities. A GAF score of 63 was assigned. The Veteran was found competent to manage his financial benefits. At a private psychiatric evaluation by D.R.D., M.D., dated January 1999, the Veteran reported driving a truck until the trucking company went out of business two years before. He felt that the trucking company work went well for him because he could hide his true feelings and could drive and not be involved with anybody else, and that was a relatively good job for him. He indicated that he still had flashbacks on a regular basis of combat scenes, as well as intrusive nightmares, and he had extreme difficulty sleeping due to a combination of his nervousness and his shoulder pain. He indicated that he frequently would get no more than 4 hours of sleep per night. The Veteran reported being very isolated in the community and he spent a lot of time at home by himself. He indicated that he did attend church and had a large extended family, but he was not in close contact with his extended family. The Veteran indicated that his appetite varied. On objective evaluation in January 1999, the Veteran had good eye contact and good intelligence. His affect was depressed and somewhat irritable, but he was oriented times three. Memory and intellectual function were average and thought processes were logical, pertinent, and sequential. He had occasional suicidal ideation with no plan or intent. He was angry at the government and the military for the way that they have treated not only him but other Vietnam veterans and that was a large part of his thought processes at the time. Judgment and insight were grossly intact and the Veteran had been reluctant to seek help because of his problems with the VA system and he found it difficult to talk about these issues. The examiner noted that the Veteran had a great deal of impairment in terms of relationships within his family as well as beyond his family and had never fully adapted to returning to the United States. In the examiner's opinion the Veteran met the criteria for a disability rating of at least 50 percent. The examiner assigned a GAF of 42. After considering the totality of the record, the Board finds the evidence in relative equipoise as to whether a 50 percent disability rating is warranted for the period from August 8, 1998 to February 5, 2002. The initial August 1998 VA examination report and January 1999 private examination report both characterized his PTSD symptomatology as severe, or moderate to severe. The Veteran was noted to be socially isolated, with little to no contact with people outside his immediate family. His mood was depressed and he reported frequent nightmares and flashbacks that interrupted his sleep and triggered recurrent thoughts of his combat experiences in Vietnam. Additionally, the private examiner assigned a GAF score of 42 during this period, indicative of serious symptomatology and/or serious impairment in occupational or social functioning. Resolving reasonable doubt in the Veteran's favor by applying the provisions of 38 C.F.R. §§ 4.3 and 4.7, the Board finds that a 50 percent initial disability rating is warranted for the period from August 8, 1998 to February 5, 2002. The Board additionally finds that an effective date of August 8, 1998 is proper for the award of a 50 percent disability rating. This date represents the date of the examination establishing entitlement to an increased rating, and receipt of an examination report or other medical treatment record may serve as an informal claim for an increased rating for a service-connected disability. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.157(b), 3.400(o) (2012). An increased rating award may be granted up to one year prior to the date of the receipt of claim, if it is factually ascertainable that an increase in disability had occurred and a claim for such an increase was received within one year. 38 C.F.R. § 3.400(o). In the present case, the Veteran was last afforded a VA examination in February 1996, more than a year prior to the receipt of his August 1998 claim, and his August 1998 VA examination report. Additionally, the Veteran stated at the August 1998 VA examination that he had first experienced a worsening of his PTSD symptomatology approximately two years ago. Thus, while the Board has considered the one year period (to August 8, 1997) that is prior to date of receipt of claim for increase on August 8, 1998, the Board finds that an effective date prior to August 8, 1998 is not warranted because entitlement to a 50 percent disability rating did not arise during this one year period. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (38 USC section 5110(b)(2) requires that "an increase in a veteran's service-connected disability must have occurred during the one year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date"). The Board must next consider entitlement to a disability rating in excess of 50 percent for the period from August 8, 1998, the VA examination which served as the basis of the present claim, to February 5, 2002, the effective date of the grant of a 70 percent disability rating and a TDIU. For this time period, the Board finds the preponderance of the evidence to be against the award of a disability rating in excess of 50 percent. According to the evidence for this period, although the Veteran reported some occasional suicidal thoughts, he denied any such intent to harm himself or to harm others, citing his religious beliefs. He also denied or otherwise did not display obsessional rituals which interfered with routine activities. His speech was not intermittently illogical, obscure, or irrelevant; at all times of record during this period, he was been able to converse with examiners and others in a clear, coherent manner. Though he has exhibited a depressed mood, he did not exhibit near-continuous panic or depression affecting his ability to function independently, appropriately and effectively, as all examiners of record have found him able to maintain his personal hygiene, finances, and household without assistance. He also has not displayed impaired impulse control, such as unprovoked irritability with periods of violence, and he has denied any recent legal difficulties during the pendency of this appeal. All VA and private examination reports indicate he had been fully alert and oriented at all times of record, and he was employed for many years until his retirement due to physical disorders. The GAF scores were shown to be between 41 and 63 during this period, indicating moderate to serious, but not major, impairment during this period. The Veteran's representative asserts within a March 2013 statement that a higher evaluation is warranted based on persistent delusions, flashbacks, hallucinations, and homicidal or suicidal ideation. The representative cites to July 1994, February 1996, and April 2002 examination reports and other clinical records in support of this contention. The Board notes such examinations, which were not conducted within the time period of issue, although considered as relevant evidence for the rating issue on appeal, are of lesser probative value than symptoms, impairments, and findings during the limited rating period on appeal. See 38 U.S.C.A. § 7104(a) (West 2002) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Review of these reports does not indicate an increased rating is warranted. For example, on VA examination in February 1996, the Veteran did admit to some suicidal ideation, but stated he would contact VA and seek help prior to any attempt. He also denied homicidal ideation. Also in February 1996, he reported experiencing some hallucinations or flashbacks, but the examiner also found he exhibited "some possible embellishment, defensiveness, and manipulativeness." He also exhibited no evidence of hallucinations or delusions at the time of the examination. On VA examination in August 1998, the Veteran denied homicidal or suicidal ideation, and did not exhibit any evidence of mania, paranoia, psychoses, obsessions, or preoccupations. On private evaluation in January 1999, he stated his religious beliefs prevented him from considering suicide. He did report flashbacks at that time, but the examiner found no evidence of any disturbances in the Veteran's thought processes. Thus, the Board concludes a disability rating in excess of 50 percent is not warranted for the period prior to February 5, 2002. The Board has also considered whether referral for an extraschedular evaluation is warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis in the present case, the Board finds that the symptomatology and impairment caused by the Veteran's PTSD for the time period in question is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provides for disability ratings based on a combination of occupational and social impairment, psychiatric symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD is manifested by symptoms of depression, difficulty with concentration, diminished interest in activities, avoidance of crowds, and impairment in motivation. These symptoms are part of, or like or similar to, symptoms or impairments listed under the schedular rating criteria at 38 C.F.R. § 4.130. The schedular rating criteria specifically include occupational and social impairment with reduced reliability and productivity due to psychiatric signs and symptoms. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21 (2012). Additionally, the Board has considered probative GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by the Veteran's PTSD. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's PTSD, and referral for consideration of an extraschedular evaluation is not warranted. In conclusion, resolving reasonable doubt in the Veteran's favor, the Board finds that a disability rating of 50 percent, and no higher, is warranted for service-connected PTSD for the period from August 8, 1998 to February 5, 2002. As a preponderance of the evidence is against the award of a disability rating in excess of 50 percent prior to February 5, 2002, the benefit of the doubt doctrine is not applicable for the rating period on appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER A disability rating of 50 percent, but no higher, for PTSD, for the period from August 8, 1998 to February 5, 2002, is granted. REMAND TDIU prior to February 5, 2002 In a March 2013 brief, the Veteran's representative raises the issue of entitlement to a TDIU for the period prior to February 5, 2002, which is the effective date of the award of a TDIU by the RO. The representative contends that the Veteran's service-connected disabilities prevented him from working for several years prior to February 5, 2002. While the Board notes that entitlement to a TDIU was not explicitly raised by the Veteran at the time he initially filed the pending increased rating claim for PTSD, a claim for TDIU may be considered implicitly within a current increased rating claim. See Comers v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (a TDIU claim is "implicitly raised whenever a . . . veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating"); Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012); VAOPGCPREC 75-91. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the present case, the agency of original jurisdiction (AOJ) has not considered the Veteran's TDIU claim in light of the Board's award of an increased rating, to 50 percent, for PTSD for the period from August 8, 1998 to February 5, 2002. Therefore, remand is required to afford the Veteran such initial consideration of TDIU by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the issue of TDIU for the period from August 8,1998 to February 5, 2002 is REMANDED for the following action: 1. Contact the Veteran and request he file a completed VA Form 21-8940 for the period from August 8, 1998 to February 5, 2002. He should be asked to provide a complete work history, whether he filed any workmen's compensation claims, and any other information regarding his employment or attempts to obtain employment prior to February 5, 2002. 2. After undertaking any additional development deemed appropriate, adjudicate the claim for a TDIU in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. 2012). ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs