Citation Nr: 1324157 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-02 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an effective date earlier than November 25, 2008, for the award of a 70 percent disability rating for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than November 25, 2008, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to July 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, granted the Veteran service connection for PTSD, with an initial rating of 30 percent for the period from August 6, 2007 through November 24, 2008, and a 70 percent rating thereafter. The RO also granted the Veteran TDIU benefits, effective November 25, 2008. In December 2009, the Veteran withdrew his appeal for a higher rating for PTSD and for service connection for glaucoma. FINDINGS OF FACT 1. The Veteran timely filed a Notice of Disagreement (NOD) on December 5, 2007, to appeal the RO's November 2007 award of an initial 30 percent rating for his service-connected PTSD. 2. The evidence of record includes factually ascertainable evidence demonstrating entitlement to a 70 percent rating for PTSD arose effective from February 6, 2008; the date entitlement arose for this staged rating for PTSD is later in time than the date of receipt of the claim for service connection for PTSD or the date of receipt of the NOD requesting a higher initial rating for PTSD. 3. The Veteran's application for a TDIU was received on December 2, 2008. 4. Prior to November 25, 2008, the evidence of record contained no medical evidence that the Veteran's service-connected disabilities rendered him unemployable. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an effective date of February 6, 2008, but no earlier, for the award of a 70 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2012). 2. The criteria for an award of TDIU were not met prior to November 25, 2008. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in letters from the RO dated in August 2007 and June 2011. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Since the issues in this case (earlier effective dates) are downstream issues from that of service connection for PTSD (for which a VCAA letter was duly sent in August 2007), another VCAA notice was not required (although one was sent in June 2011 after all rating actions had been completed). VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the Court has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the appellant was furnished proper VCAA notice with regard to the claim of service connection itself. As the original service connection claim for PTSD was more than substantiated in that it was proven, section 5103(a) notice is no longer required because the purpose that the notice was intended to serve has been fulfilled. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The Court also noted in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, the TDIU claim was part and parcel of the increased rating claim. Therefore, the Board finds that the Veteran was already provided sufficient VCAA notice as to his earlier effective date claims in this appeal when he was sent the August 2007 letter. The Board notes that the Veteran was notified of how VA determines effective dates in both the August 2007 and June 2011 letters. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. The duty to assist also has been fulfilled as medical records from VA and the Social Security Administration (SSA) have been requested and obtained. Therefore, the Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Earlier Effective Dates - Laws and Regulations Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for 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 the later. 38 C.F.R. § 3.400. An exception to the general rule governing claims for increased compensation is contained in 38 U.S.C.A. § 5110(b)(2). If the evidence demonstrates that the increase in disability occurred prior to the date of receipt of claim, the Department may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating is received within a year of the date that the increase occurred. See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). 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. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. A report of an examination or hospitalization which meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(a). Under 38 C.F.R. § 3.157(b), 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 an informal claim for increased benefits for an informal claim to reopen. In the instant case, the Veteran's appeal arises from the assignment of a staged disability rating for his service-connected disability after the award of an initial disability rating. With regard to initial rating cases, separate ratings can be assigned to separate periods of time, based upon the facts found - a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's disability due to service-connected PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under the general rating formula for mental disorders, a 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of 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 (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating contemplates reduced reliability and productivity in occupational and social situations due to such symptomatology as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating envisions 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss of names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The Board notes that the symptoms listed in VA's General Rating Formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve 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). Reports of psychiatric examination and treatment frequently include a Global Assessment of Functioning (GAF) score. According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), Fourth Edition, a GAF scale includes scores ranging between 0 and 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, an assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). 38 C.F.R. § 4.126(a) (2012). VA has adopted DSM-IV, under 38 C.F.R. §§ 4.125 and 4.130. A GAF score of 61-70 suggests 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, has some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 signifies serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). (TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The question is whether the veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an award of increased disability compensation is the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year thereof. Otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o)(1) (2012). Factual Background The Veteran contends that he is entitled to an effective date earlier than November 25, 2008, for the grant of a 70 percent disability rating for his service-connected PTSD and for the grant of a TDIU award. In his written submissions, the Veteran contends that treatment records show that both effective dates should be earlier than November 25, 2008. In the present case, a November 2007 rating decision granted service connection for PTSD and awarded a 30 percent initial disability rating, effective August 6, 2007, the date the Veteran's claim for service connection for PTSD was received at VA. Subsequently, on December 5, 2007, the Veteran filed a Notice of Disagreement (NOD) objecting to the initial 30 percent disability rating for PTSD. He contended that the horrors of his combat experience had been with him for the last 40 years. He stated that he had trouble sleeping, was easily startled and distracted, found it hard to concentrate, and had panic attacks. During the course of the appeal for a higher rating for PTSD, the Veteran also filed what he termed a Request for Reconsideration on November 26, 2008 - after the October 2008 Statement of the Case had continued his 30 percent initial disability rating. He attached a copy of a November 25, 2008 VA treatment record in which his VA treatment nurse concluded that the Veteran had severe symptoms of PTSD and that any exposure to a work environment would exacerbate his PTSD symptoms. In an April 2009 Supplemental Statement of the Case (SSOC) the Veteran's disability rating for PTSD was increased from 30 percent to 70 percent, effective November 25, 2008. On December 2, 2008, VA received the Veteran's application for a TDIU. In an April 2009 rating decision the RO granted an award of TDIU, effective November 25, 2008, the date the RO found when the Veteran had met the schedular requirements for a TDIU. In May 2009, the Veteran filed a NOD to the April 2009 decisions awarding a 70 percent disability rating for PTSD, effective November 25, 2008, and awarding a TDIU, also effective November 25, 2008. The Veteran contended that both effective dates should be earlier than November 25, 2008. By way of history, the grant of service connection for PTSD and the award of an initial disability rating of 30 percent were based, in part, on the results of an August 2007 VA PTSD examination. According to the examination report, the Vietnam combat Veteran woke up in the middle of the night thinking about this Vietnam experiences. He also reported problems with large crowds and loud noises. He had no psychiatric treatment history up to that point. Mental status examination showed that the Veteran was not withdrawn or agitated. He reported auditory and visual hallucinations every 3 to 5 weeks involving a male voice or children. The men were often calling for mortars. In the visual hallucinations he reported seeing Vietnamese people. There was no evidence of any altered level of consciousness. He denied compulsive behaviors or obsessive thinking. He said he was quiet and angry and an anxious affect was noted. He said that he slept 4 to 5 hours and described his energy level as pretty good. He reported irritability, but no tearfulness, mania, or panic attacks. The Veteran had a good relationship with his wife, two sons, and two cousins and estimated that he had 40 to 50 friends. The diagnosis was chronic PTSD with periods of remission. It was noted that the Veteran was able to work full-time and had done so at the same company since December 1975. The diagnosis also included a depressive disorder not otherwise specified and mild alcohol abuse. A GAF score of 60 was assigned. The VA psychologist also opined that the Veteran's PTSD symptoms had no negative impact on his ability to obtain and maintain physical or sedentary employment. In a handwritten letter received in August 2007 the Veteran's wife stated that the Veteran had nightmares, was uncomfortable in crowds, and had no patience with anyone or anything. An August 2007 VA mental health assessment and consultation by a staff psychologist showed that the Veteran's symptoms were consistent with a diagnosis of PTSD and a recurrent, moderate major depressive disorder. It was noted that he had a good support system and maintained close relationships with his family. The Veteran reported that his symptoms had increased over the past two years, mostly as a result of following the war in Iraq. A GAF score of 60 was assigned and it was noted that 65 was the highest score in the past year. Referrals were made to a VA psychiatrist and to a PTSD group. A September 2007 VA medical record of a psychotherapy session noted that the Veteran was out of work on worker's compensation with a torn meniscus of the knee. The Veteran wanted medication for insomnia, nightmares, and flashbacks. After a mental status examination, the diagnosis was moderate PTSD and depression. A GAF score of 50 was assigned. VA mental health clinic records dated in October 2007, November 2007, December 2007, and February 2008 noted further psychotherapy sessions with moderate or mild PTSD, depression, and episodic alcoholic abuse diagnosed. A GAF score of 50 was assigned on each occasion. VA mental health records dated from October 2007 to August 2008 document the Veteran's attendance at PTSD group therapy sessions. In a signed statement received in January 2008, the Veteran stated that he thought he deserved a higher disability rating because he thought of Vietnam every day and was reliving his combat experiences more than ever. He noted trouble sleeping, a startle response, and difficulty concentrating. He also claimed panic attacks while waiting in line at the store or while in traffic jams. On multiple occasions in February 2008, beginning on February 6, 2008, a VA social worker saw the Veteran in psychotherapy sessions and noted that the Veteran suffered chronic and severe PTSD including flashbacks, intrusive imagery, avoidance, isolation, irritability, anger, sleep disturbance, nightmares, and anxiety as well as depression. Mental status examinations showed a stressed mood on two occasions and a euthymic mood on the third, but otherwise no abnormalities. He denied suicidal and homicidal ideation and contracted for safety. The VA social worker assigned GAF scores of 50 and 49. A VA clinical nurse specialist also saw the Veteran. On February 4, 2008, she indicated the Veteran's GAF was 50. He had a level mood, normal speech and was pleasant and cooperative. She indicated the Veteran's PTSD was mild. According to a March 2008 VA mental health record, psychotherapy sessions resumed with the Veteran's treating VA clinical nurse specialist who noted mild PTSD and dysthymia. A GAF score of 50 was assigned. In another March 2008 VA mental health clinic record, the VA clinical nurse specialist noted the Veteran's improving symptoms and that he had no suicidal or homicidal ideation or psychotic symptoms. Subsequent VA psychotherapy sessions with the VA social worker in March 2008, April 2008, May 2008, and June 2008 noted chronic and severe PTSD; the mental status examinations showed an euthymic mood with no abnormalities, and the assignment of a GAF score of 49. A GAF score of 48 was assigned in one May 2008 session. In a July 2008 VA mental health record, the VA nurse assigned a GAF score of 47. An August 2008 VA mental health treatment plan noted a diagnosis of PTSD and recurrent, moderate major depressive disorder with a GAF score of 60 assigned. A September 2008 VA mental health clinic record noted that the Veteran was saddened by the death of two friends and was aggravated by young neighbors littering his driveway and lawn. Moderate PTSD was diagnosed as well as recurrent major depressive disorder in partial remission and a GAF score of 47 was assigned. Records from the Social Security Administration (SSA) show that in November 2008 the Veteran was granted disability benefits retroactive to May 2007. The primary diagnosis was affective disorders and the secondary diagnosis was disorders of muscle, ligament and fascia. A review of the CD-ROM containing SSA medical evidence disclosed that VA mental health treatment records dated in 2007 and 2008 were included in the SSA record, many of which are noted above. A November 2008 VA mental health record noted incidents with a littering neighbor who aggravated the Veteran. However, a mental status examination showed no abnormalities. Diagnosis was moderate PTSD, recurrent major depressive disorder in partial remission, anxiety, and episodic alcohol abuse. A GAF score of 48 was assigned. A VA mental health treatment record dated on November 25, 2008 showed a follow-up visit and mental status examination with no abnormalities. The diagnosis was PTSD, depression, and anxiety. A GAF score of 46 was assigned. The VA clinical nurse specialist, who treated the Veteran during the past year, noted that the Veteran had daily recurrent and intrusive distressing recollections and recurring distressing dreams or nightmares about four times a week as well as flashbacks. She also noted his difficulty with sleep, irritability, and outbursts of anger, hypervigilance, and an exaggerated startle response. She stated that these symptoms were consistent with a PTSD diagnosis and that there were no periods of remission. The VA nurse also opined that the Veteran had severe symptoms of PTSD and that any exposure to a work environment currently would exacerbate his PTSD symptoms and could create a danger to himself, and possibly others, as his mood was extremely labile and he had difficulty controlling his anger. She further stated that the Veteran's disorder also resulted in very poor concentration and severe difficulties in relating to others. These impairments, though varying in severity over time, were permanent. She concluded that the Veteran, therefore, was permanently disabled and unable to be employed. In December 2008 the Veteran was provided a VA PTSD review examination. He told the examiner that within the past year he had arguments with his youngest son living at home where he ended up pinning his son up against the wall by his neck. He also told the examiner that he had been out of work on disability for the past year and a half due to problems with his right knee. Now he wanted to retire after 33 years with the same company and get a knee replacement. On mental status examination, the Veteran reported both audio and visual hallucinations, but it was unclear whether they represented a psychotic process. The VA examiner stated that it was most likely that they were related to his PTSD and depression. It was noted that frequently the Veteran heard voices of friends he knew who had died, particularly voices related to Vietnam, and sometimes he thought that he could see them or see images from his past in a sort of flashback experience. The Veteran stated that he never had these experiences when someone else was around, but only when he was alone. The diagnosis was PTSD; recurrent, moderate major depressive disorder; and alcohol abuse. A GAF score of 50 was assigned. The VA examiner opined that the Veteran's functioning was worse than indicated in the prior C & P examination: the Veteran was socially isolated, did not get along with his younger son or with neighbors, and had a lot of difficulty functioning in his job before his worker's compensation disability. It was her opinion that the Veteran's PTSD and depression were severe enough to cause unemployability. PTSD Rating Given the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that it was factually ascertainable that the Veteran's PTSD met the criteria for a 70 percent disability rating on February 6, 2008. This was the first of a number of recorded psychotherapy sessions the Veteran had with a VA social worker that month. These records document that the Veteran's PTSD symptoms were chronic and severe, including intrusive imagery, perhaps an indication of the occasional audio and visual hallucinations that were noted in both of his VA PTSD examinations but otherwise not noted in the periodic treatment records. Not only was there evidence of a disturbance of mood, and likely motivation, that month, but from this point forward the GAF scores assigned fell from the 50 to 60 range noted in 2007 to the 46 to 50 range. Although the medical evidence recorded from February 2008 onwards showed that the Veteran denied suicidal and homicidal ideation, it documented complaints of panic attacks and depression, unprovoked irritability, violence against a family member, and difficulty in adapting to stressful circumstances when bothered by a littering neighbor. Considering the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that from February 6, 2008, the Veteran's PTSD symptoms more closely reflected those symptoms found in the General Rating Formula which reflect occupational and social impairment with deficiencies in most areas, or a 70 percent disability rating. Thus, an effective date of February 6, 2008, for the award of his 70 percent rating for PTSD is warranted. An even earlier effective date is not warranted. The Board acknowledges evidence of GAF scores of 50 in the last months of 2007/early 2008, shortly after service connection was granted and he began treatment at VA for his PTSD. As noted above, a score of 50 indicates serious symptoms, but is on the borderline with moderate symptoms reflected in scores ranging between 51 and 60. In 2007, two scores of 60 were noted as well as a 65 reflecting moderate or mild symptoms. In addition, VA mental health clinic records noted mild or moderate PTSD symptoms in late 2007 and early 2008 in spite of the assigned GAF score of 50. Possible indications of an increase in symptoms thus appear to have been situational and transient and do not provide for an earlier effective date. Further, the Board notes that the Veteran has withdrawn his appeal for a higher initial rating and is, therefore, without jurisdiction to increase his initial 30 percent rating, or grant a further staged rating for 2007. In any event, as indicated above, the VA medical records do not show an increase reflecting that a 70 percent rating was warranted until February 6, 2008. An earlier effective date for the award of the 70 percent disability rating is also not warranted on the basis of the receipt of any claim. As noted above, the Veteran filed his claim for service connection for PTSD on August 6, 2007, and filed his NOD to the initial 30 percent disability rating awarded on December 5, 2007. However, the Board notes that the effective date of a rating and award of compensation based on a claim for increase will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In this case, as demonstrated above, the date entitlement arose for a higher 70 percent rating for PTSD, February 6, 2008, is later in time than the date of receipt of the claim for an increased rating or the date of his claim for service connection for PTSD. Here, the date entitlement arose is controlling. TDIU The Board finds that the evidence of record does not warrant the assignment of an effective date earlier than November 25, 2008, for the award of TDIU. The Veteran essentially argues that the effective date for the TDIU should match the effective date for the award of a higher rating for his PTSD disability. The Board notes that while the Veteran filed his TDIU claim on December 2, 2008, the November 25, 2008 VA treatment report may otherwise be considered an informal claim for TDIU as the VA nurse stated that the Veteran's PTSD symptoms were permanent and severe and he was unable to be employed. Nevertheless, the Board finds that the evidence does not support finding that any effective date prior to November 25, 2008, is properly for assignment for the grant of TDIU in this case. The Board stresses at this point that in order to establish a TDIU, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the present case, the Veteran is service connected for PTSD with a 70 percent disability rating, effective February 6, 2008; for tinnitus with a 10 percent disability rating; and for bilateral hearing loss with a noncompensable rating. There is no allegation or suggestion in the record that the Veteran's unemployability is due to his tinnitus or hearing loss. The Board notes that this appeal does not include any issue or contention raising an inquiry as to whether the Veteran's service-connected disabilities ever met the schedular criteria for entitlement to a TDIU. VA regulations establish objective and subjective standards for TDIU. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there are two or more disabilities one shall be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to at least 70 percent. If the claimant has only one disability, such must be rated at 40 percent or more. See 38 C.F.R. § 4.16(a). The Veteran meets either of these schedular requirements because his PTSD is rated at 70 percent. Therefore, the essential inquiry in this case is whether the PTSD disability alone was of sufficient severity to produce unemployability during the pertinent period. After reviewing the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities alone precluded gainful employment at any time prior to November 25, 2008. As indicated above, the August 2007 VA examiner had opined that the Veteran, who was then working full-time with the same employer since December 1975, suffered no negative impact on his ability to obtain and maintain physical or sedentary gainful employment as a result of his PTSD symptoms. However, the next month a VA treatment record noted that he was out of work on worker's compensation with a torn meniscus of the knee. From September 2007 onwards, the medical evidence of record indicated that the Veteran was not working, but this unemployability was due to his nonservice-connected knee disorder and not to any of his service-connected disabilities. There is no suggestion in the record contemporaneous to this period of time that the Veteran was precluded from gainful employment because of anything besides his worker's compensation injury. The first medical evidence of unemployability due to a service-connected disorder found in the record does not appear until the November 25, 2008 VA treatment record wherein the VA nurse who treated the Veteran for his PTSD opined that any exposure to a work environment would exacerbate his PTSD symptoms and presented a possible danger to the Veteran or others. She concluded that the Veteran was permanently disabled and unable to be employed. The subsequent December 2008 VA mental examiner was in agreement. The Board observes that multiple VA treatment reports from 2007 and 2008 document the Veteran's report of symptoms and impairments, but the Board's review of these records does not reveal evidence of preclusion from gainful employment due to a service-connected disability before November 25, 2008. The Board finds that the earliest evidence of record showing severity of service-connected disabilities precluding employment is the November 25, 2008 VA treatment record; this is the date of the already assigned effective date for the award of TDIU. The Veteran does not appear to point to any particular records as evidence of unemployability prior to that date. Instead, the Veteran simply argues that the 70 percent rating for the PTSD disability considered together with his not working warrants an effective date for TDIU matching the effective date for the 70 percent disability rating for the PTSD disability, which the Board has now established as February 6, 2008. The Board finds, based on a review of all of the evidence, that it was not until the VA mental health clinic visit on November 25, 2008, that the evidence suggested that gainful employment was precluded due to a service-connected disability. The general rule is that the effective date for the assignment of an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110. 38 C.F.R. § 3.400 provides that the effective date for increase shall be the date of claim, or the date entitlement arose, whichever is later. Applicable law further provides that 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 an application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). In this case, the earliest date as of which it is factually ascertainable that the Veteran was precluded from working due to his service-connected PTSD was November 25, 2008. The Board notes that his application for a TDIU was received within one year of that date. Further, as explained above, the Board's review of the evidence within the one year period preceding the filing of his TDIU claim shows that while the schedular criteria for a TDIU was met in February 2008, there was no medical evidence of the Veteran's unemployability due to a service-connected disorder until the November 25, 2008 medical record and the subsequent December 2008 VA examination. Therefore, the effective date of the Veteran's TDIU in this case is actually earlier than his date of claim for a TDIU. Thus, an effective date earlier than November 25, 2008, for the grant of TDIU is not warranted in this case. Conclusion In conclusion, the Board has applied the benefit of the doubt doctrine in granting an effective date of February 6, 2008, for the award of a 70 percent rating for PTSD. As the preponderance of the evidence is against an effective date earlier than November 25, 2008, for the award of TDIU, the benefit of the doubt doctrine is not applicable to that claim. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date of February 6, 2008, for the award of a 70 percent disability rating for PTSD is granted, subject to the law and regulations governing an award of monetary compensation. Entitlement to an effective date earlier than November 25, 2008, for the grant of TDIU is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs