Citation Nr: 1334975 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-41 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) with depression and anxiety. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability, prior to February 20, 2008. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In the June 2006 rating decision, the RO, in relevant part, granted service connection for PTSD with depression, anxiety and alcoholism, and assigned a 30 percent disability rating, effective May 24, 2005. Although the Veteran did not file a notice of disagreement (NOD) with the June 2006 rating decision, VA treatment records dated in January 2007, February 2007, and April 2007 reflected ongoing treatment for PTSD symptoms. These records constituted new and material evidence pertaining to the assigned disability rating for the Veteran's PTSD, and were at least constructively of record within one year of the June 2006 rating decision. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the June 2006 rating decision did not become final prior to readjudication in October 2007 and December 2009. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. 3.156(b) (2013); see also Buie v. Shinseki, 24 Vet. App. 242, 251-252 (2011) (holding that evidence submitted to the RO within one year of the RO's decision requires "any subsequent decision based on such evidence [to] relate back to the original claim"). In April 2013, the Board remanded the Veteran's current claims on appeal, and granted entitlement to service connection for tinnitus. In an August 2013 rating decision, the Appeals Management Center (AMC) implemented a July 2013 decision by VA's Director of Compensation and Pension Service (C&P Service), which granted entitlement to a TDIU on an extraschedular basis. The RO assigned an effective date of February 20, 2008, for the TDIU. The issue of entitlement to a separate compensable disability rating for lumbar spine radiculopathy in the lower extremities has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See May 2013 thoracolumbar spine examination and July 2013 decision by VA's Director of C&P Service. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran's PTSD has been manifested by symptoms such as anxiety, depressed mood, irritability, disrupted sleep, decreased concentration, hypervigilance, intrusive thoughts, nightmares, and memories, decreased appetite, decreased interest in hobbies, persistent avoidance, and exaggerated startle response, consistent with symptoms of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran's service connected disabilities have rendered the Veteran unemployable since the effective date of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). 2. The criteria for entitlement to a TDIU have been met since May 24, 2005. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlop v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required with regard to the current issues on appeal. Regarding the duty to assist, VA has obtained the Veteran's VA treatment records, his Social Security Administration (SSA) records, and has provided him with multiple VA examinations. The AOJ also substantially complied with the Board's April 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board, in relevant part, specifically instructed the AOJ to obtain the Veteran's most recent VA treatment records and to afford him a VA examination. The requested VA treatment records were obtained, and the Veteran was afforded the requested VA examination in May 2013. Additionally, while the Board instructed the AOJ to obtain records of treatment by a Dr. K. M., and from other private healthcare providers, the Veteran notified the AOJ in May 2013 that Dr. M. was a VA provider, and maintained that he had no additional evidence to provide. Notably, records of treatment rendered by Dr. M. are of record. The AMC also referred the TDIU claim to the Director of C&P in accordance with the remand instructions. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim for an increased disability rating for PTSD. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The VCAA is not applicable where further assistance would not aid a claimant in substantiating his or her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision regarding the TDIU claim, further assistance is unnecessary to aid him in substantiating the claim. II. Disability Ratings A. Governing Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). Otherwise, the lower rating will be assigned. Id. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where the assignment of an initial disability evaluation is challenged following the disability in question having just been recognized as service-connected. In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Id. The Veteran bears the burden of presenting and supporting his claims for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. B. Rating Criteria The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411, and the disability is rated under the General Rating Formula for Mental Disorders. Under this formula, a 30 percent evaluation is warranted for occupational and social impairment with 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, recent events). 38 C.F.R. § 4.130 (2013). A 50 percent evaluation 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 in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130 (2013). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2013). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability associated with mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b) (2013). C. Analysis The pertinent evidence of record includes VA mental health outpatient treatment reports, and VA psychiatric examinations dated in April 2006, December 2009, and May 2013. These records consistently reflect such PTSD symptoms as anxiety, depression, decreased concentration, hypervigilance, irritability, intrusive thoughts, nightmares, decreased appetite, decreased interest in hobbies, persistent avoidance, and exaggerated startle response. Throughout the appeal period he has been noted to have a varying degree of alcohol dependence. Symptoms including impairment of thought process, and delusions or hallucinations have been found. Additionally the Veteran has been noted to maintain good personal hygiene, and other activities of daily living, and to be oriented to person, place, and time. His speech, psychomotor functioning, and appearance have consistently been noted as normal. The Veteran reported suicidal ideation on one occasion in August 2007. Elsewhere he has consistently denied suicidal or homicidal ideation. In August 2007, he was also noted to have a disrupted sleep cycle with periods of sleep lasting only four to six hours per night, but sleep impairment is specifically contemplated in the criteria for a 30 percent rating. During the Veteran's April 2006 VA PTSD examination, he reported that on a social level he did not care to do anything and felt numb. His only leisure pursuits were watching television and sitting on his patio. At that time, he was noted to be abusing alcohol. His social/interpersonal relationships were described as essentially non-existent. Recreation and leisure pursuits were described as limited. The Veteran additionally endorsed having some short term memory problems secondary to Parkinson's disease. During his December 2009 VA examination, the Veteran reported improved sleep, but was noted to have had dramatically increased drinking by May 2008. He reported mental health symptoms occurring more often than not, currently of mild severity. He noted improved social functioning. Overall, he described a "fairly good" current psychosocial functional status. The VA examiner noted that the Veteran's PTSD with depression and anxiety had remained fairly stable over time, if not mildly improved, as per his recent treatment records. Ongoing mild and stable symptoms were indicated. In his January 2010 notice of disagreement, the Veteran reported an increase in intrusive memories over the years. He noted that these memories caused a disturbance of sleep, and increased nightmares. He noted that his memory and thoughts were triggered by sights and sounds of airplanes landing and taking off at his local airport. He additionally reported difficulty keeping attention on tasks. VA treatment records dated beginning in March 2010 note the Veteran's additional reports of symptoms of somewhat frequent disturbing memories, strong feelings of a foreshortened future, and of frequently feeling tired. He additionally reported an increase in PTSD and depression symptoms. VA mental health evaluations, dated beginning in May 2010, indicate that his symptoms had again significantly remitted. His alcohol consumption was also consistently noted to be decreasing. He also consistently reported attending a social club of which he was a member. In the Veteran's May 2013 VA examination, his PTSD was characterized as mild. He was noted as having occupational and social impairment due to mild or transient symptoms with decreased work efficiency and inability to perform occupational tasks only during periods of significant stress. The Veteran reported that his girlfriend had moved out and that he had increased his alcohol consumption for about the two year prior to that time. He reported that more recently he had been "cutting back." The examiner concluded that the Veteran continued to endorse symptoms of persistent re-experiencing stressors, persistent avoidance, and persistent increased arousal. He reported that his PTSD symptoms were generally under control. With regard to occupational functioning, the examiner was of the opinion that while the Veteran would likely experience decreased work efficiency and an inability to perform tasks during periods of significant stress; his symptoms generally were well controlled by medications. The examiner further noted that the Veteran indicated that he would like to work and had been looking for some jobs, but that cardiac and orthopedic disabilities deterred employers from hiring him. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. An examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. GAF scores ranging from 51 to 60 reflect more 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). Scored ranging from 61 to 70 reflect 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. Scores ranging from 71 to 80 reflect transient symptoms and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); and no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). In this case, the Veteran has consistently been assigned GAF scores ranging from 60 to 65, with a score of 65 being assigned more frequently in his VA treatment records. Thus, these scores would appear to be more indicate of mild impairment. During the course of the appellate period, the Veteran has largely been shown to have symptoms of anxiety, depressed mood, irritability, disrupted sleep, decreased concentration, hypervigilance, intrusive thoughts, nightmares, and memories, decreased appetite, decreased interest in hobbies, persistent avoidance, and exaggerated startle response. The symptoms are substantially similar to such symptoms as described in the rating criteria for his currently assigned 30 percent disability rating. See Mauerhan, 16 Vet. App. at 442-44. Notably, the Veteran has largely not been shown to have symptoms listed in the examples for the next highest, 50 percent, disability rating. He has not been shown to have impaired speech, panic attacks, difficulty understanding commands, impaired judgment, impaired abstract thinking, or disturbance of mood or motivation. While he has reported having difficulty with social relationships in the past, he has not reported specific difficulty maintaining effective work and social relationships. To the contrary, he has frequently attended a social club, and has had at least one long-term girlfriend over recent years. Moreover, while he reported some impairment of memory, he has attributed this impairment to Parkinson's disease. Additionally, while the Veteran exhibited suicidal ideation on one occasion, this symptom has not been shown to cause occupational or social impairment; and this is the only time any symptoms listed in the examples for a 50 percent rating was+ identified. There evidence of any PTSD symptoms listed in the criteria for a 70 or 100 percent disability rating. Accordingly, the Board finds that the weight of the evidence in this case is against a finding that PTSD meets or approximates the scheduler criteria for a rating in excess of 30 percent. In determining whether a higher rating is warranted for a service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, a preponderance of the evidence is against a higher initial rating for PTSD on a scheduler basis. D. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The symptoms associated with the Veteran's service-connected PTSD (i.e., anxiety, depressed mood, irritability, disrupted sleep, decreased concentration, hypervigilance, intrusive thoughts, nightmares, and memories, decreased appetite, decreased interest in hobbies, persistent avoidance, and exaggerated startle response) are specifically contemplated by the rating criteria set forth above, and the criteria reasonably describe the severity of his service-connected PTSD. The rating schedule contemplates the manifestations of the Veteran's disability and referral for consideration of extraschedular ratings is not warranted in this case. III. Entitlement to a TDIU A. Governing Laws and Regulations A TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2013). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2013). The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to insure that all cases where there is evidence of unemployability due to service connected conditions are referred to the Director for initial consideration under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has jurisdiction to review determinations by the Director. Anderson v. Principi, 18 Vet. App. 371 (2004). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). B. Analysis In the instant case, entitlement to a TDIU on an extraschedular basis was awarded pursuant to a July 2013 decision rendered by VA's Director of C&P Service. The RO assigned an effective date of February 20, 2008, based on the date of receipt of the Veteran's most recent formal application for a TDIU. Notably, however, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an initial rating claim irrespective of whether such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, the Board must consider whether entitlement to a TDIU is warranted throughout the entire appellate period; in this case, since May 24, 2005. Prior to February 20, 2008, service connection was in effect for residuals of a lumbar spine injury with degenerative changes, rated as 40 percent disabling, effective June 21, 2004; for PTSD, rated as 30 percent disabling, effective May 24, 2005; for tinnitus, rated as 10 percent disabling, effective October 20, 2006; and for left ear hearing lose, rated as noncompensable. The Veteran reported as early as in his May 2005 claim for service connection for multiple disabilities, including PTSD, that he suffered depression in part due to his inability to work. In a December 2005 application for TDIU, he reported that he had last worked three years before, and that he became too disabled to work at that time. In an accompanying statement, he indicated that the main reason he was unable to work was because of his back disability. During the Veteran's April 2006 VA PTSD examination, the Veteran reported having an employment history of working as a police officer for 11 years, as an emergency medical technician for four years, and at a funeral home for three years. He noted that he had not worked for the previous three years. An earlier disability determination by the SSA noted that the Veteran had only a high school education. A review of the decision by VA's Director of C&P Service shows that a TDIU was awarded primarily due to the level of disability associated with the Veteran's service-connected lumbar spine disability. The Director's based the decision on findings in a May 2013 VA examination report, wherein the VA examiner noted that the Veteran's degenerative disc disease at multiple levels had an impact on his ability to work not only a physical job, but also a sedentary job. The examiner noted that the Veteran had significant pain and numbness going down his left leg, even while sitting. The examiner noted that the Veteran's best position for relief of pain and numbness was lying down, which would not be prudent in seeking employment. The examiner concluded that the Veteran was not employable due to the current severity of his back disability. In reviewing earlier evidence of record, a December 2004 VA spine exam report noted that while the Veteran did not have severe limitations of lumbar spine motion, he estimated that his range of motion was reduced by 60-70 percent by the end of each day. The examination report additionally documented significant painful motion. Severe degenerative changes at L5-S1 have been documented sine the time of the December 2004 VA examination. The February 2005 rating decision awarded a 40 percent disability rating for the Veteran's lumbar spine disability based on findings in the December 2004 VA spine examination report. A later December 2009 VA spine examination report additionally documented painful motion. The VA examiner concluded that the Veteran's lumbar spine disability significantly interfered with activities consistent with the Veteran's prior work experience and education. As a police officer, the Veteran would be unable to walk patrol beats, or even sit in a patrol car for a long period of time. The examiner further noted that the Veteran could only stand for 10 minutes at a time and only walk three to four blocks before he needed to stop due to back pain. The medical and lay evidence of record shows that the severity of the Veteran's lumbar spine disability has remained fairly consistent since service connection was first awarded in the February 2005 rating decision. Moreover, the 40 percent disability rating in effect since that time reflects a consistent level of disability. Thus, where entitlement to a TDIU has been found to be warranted based on more current examination findings, prior medical evidence which have largely been consistent with such current findings, show that a TDIU would be warranted throughout the entire appellate period. Therefore, the claim of entitlement to a TDIU is granted as of the date of service connection for PTSD, May 24, 2005, which is the beginning date for the period of this appeal. 38 U.S.C.A. § 5107 (West 2002). ORDER Entitlement to an initial rating in excess of 30 percent for service-connected PTSD is denied. Entitlement to a TDIU is granted as of May 24, 2005. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs