Citation Nr: 1336397 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 04-10 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial evaluation in excess of 70 percent for service-connected posttraumatic stress disorder (PTSD) and dysthymia. (Any issue on appeal for which the below noted attorney has not been retained for representation is addressed in a separate but concurrently issued decision of the Board.) REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from March 1967 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO). In April 2009, the Board granted an earlier effective date of September 19, 1996 for the award of service connection for PTSD, and remanded the issues of entitlement to an initial rating in excess of 30 percent for PTSD for the period from February 23, 2001 through October 21, 2007 and entitlement to an initial rating in excess of 50 percent for PTSD for the period from October 22, 2007 for readjudication of the issues of entitlement to higher initial ratings for PTSD, to include consideration of the period from September 19, 1996 through February 22, 2001. A March 2012 supplemental statement of the case determination assigned a 30 percent rating, and no higher, for the disability at issue from September 19, 1996 through October 21, 2007, denied a rating in excess of 50 percent from October 22, 2007 through February 1, 2012, and granted a 70 percent rating for PTSD and dysthymia effective February 2, 2012. As the requested development has been conducted, there has been substantial compliance with the April 2009 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). In September 2012, the Board granted a total disability rating based on individual unemployability due to service-connected disability (TDIU) from February 2, 2012 and remanded the issues of entitlement to increased initial ratings for PTSD and a TDIU rating prior to February 2, 2102 for readjudication. A February 2013 rating decision granted entitlement to TDIU and Dependents' Educational Assistance (DEA) effective February 2, 2012. A May 2013 rating decision granted an evaluation of 70 percent for PTSD and dysthymia, granted TDIU, and granted DEA, all of which were effective September 19, 1996. Consequently, the only percent for PTSD and dysthymia. Added to the claims files in October 2013 is a VA Form 119, Report of Contact, in which it is noted that the office of the Veteran's attorney confirmed that he was only representing the Veteran on the increased rating issue on appeal. FINDINGS OF FACT 1. For the entirety of the rating period on appeal from September 19, 1996 through August 25, 1997, the most probative evidence of record failed to show that it was at least as likely as not that the disability at issue was manifested by functional impairment comparable to attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or that there were totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or that the Veteran was demonstrably unable to obtain or retain employment, or comparable to total occupational and social impairment at any time from November 7, 1996 through August 25, 1997. 2. Beginning August 26, 1997, the evidence shows that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. CONCLUSIONS OF LAW 1. Prior to August 26, 1997, the criteria for an initial evaluation in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9411 (1996); 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (1997). 2. Beginning August 26, 1997, the criteria for an initial evaluation of 100 percent for service-connected PTSD have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.132, Diagnostic Code 9411 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here the veteran is appealing the initial rating assignment as to his PTSD and dysthymia, following the award of service connection. In this regard, because the February 2003 rating decision on appeal granted the veteran's claim of entitlement to service connection for the disability at issue, such claim is now substantiated. His filing of a notice of disagreement as to the February 2003 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as the statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under the applicable diagnostic code, including as in effect prior to, and as amended, effective November 7, 1996. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected PTSD and dysthymia. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. The record includes the Veteran's service treatment records, and post service VA and private treatment and clinical evaluation reports. There is no indication of any outstanding available records pertinent to the appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. There are several VA psychiatric evaluations on file, with the most recent dated in February 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination reports of record obtained in this case are adequate, as they provide the relevant symptomatology of the Veteran's PTSD. There is adequate medical evidence of record to make a determination on the increased rating issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran has contended that his PTSD is more severe than currently rated due to his psychiatric symptomatology. As noted above, service connection has been established for PTSD, with a 70 percent initial rating assigned effective from September 19, 1996, the effective date of the award of service connection. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 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. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, as in this case, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Board notes that effective November 7, 1996, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating mental disorders. 61 Fed. Reg. 52700 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). The RO provided the Veteran notice of both the old and new regulations in the January 2010 Supplemental Statement of the Case. Thus, the Board finds that it may proceed with a decision on the merits of the Veteran's claim, with consideration of the original and revised regulations, without prejudice to the Veteran. See Bernard v Brown, 4 Vet. App. 384, 393-394(1993). Before November 7, 1996, the General Rating Formula for Psychoneurotic Disorders (VA Schedule) provided that a 70 percent rating was assigned for psychoneurotic symptoms of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent rating was assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when there were totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the Veteran was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Under the previously applicable regulation, the finding of only one of the criteria listed for a 100 percent rating in Diagnostic Code 9400 may be sufficient to support the assignment of that rating. Johnson v. Brown, 7 Vet. App. 95, 97 (1994). Under the current schedular criteria, a 70 percent evaluation is assignable for psychiatric disability when 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation for psychiatric disability is assignable 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. Id. The global assessment of functioning (GAF) score reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score of 31 to 40 involves some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). A GAF of 61 to 70 is defined as 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. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). A GAF of 71 to 80 is assigned when symptoms, if present, are transient and are expected reactions to psychosocial stressors (e.g., difficulty concentrating after family argument), with no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-7 (1994). The Veteran was afforded a VA examination in October 1996 in which he indicated that he had been fired from work three years earlier for missing work, which he noted was due to aches and pains. He was alert, oriented, and well groomed. His thoughts were logical and coherent. No psychiatric diagnosis was provided, and the examiner concluded that the Veteran's main problem appeared to be his multiple aches and pains. According to a January 1997 medical report from A. Safdar, M.D., the Veteran reported being in a lot of pain; he could not handle much stress. He experienced significant insomnia, which interfered with his ability to function. He did not remember complex instructions; he had impaired attention and concentration; and he did not get along with others. The Veteran felt that his depression and physical condition interfered with his day-to-day functioning. Probable dysthymia was diagnosed, and his GAF score was 50. According to a February 1997 psychological evaluation from P. J. Schroeder, Ed.D., the Veteran's mood was depressed and his affect was flat and constricted. The results of the psychological testing suggested chronic depression and a somatization disorder, most likely meeting the diagnostic criteria for a dysthymic disorder. The Veteran complained on VA evaluation on August 26, 1997 of occasional depression, with many of his current difficulties due to stress over his difficult life events, including his divorce and his difficult financial situation. The Veteran was living in an apartment in his mother's house and spends most of his time around the house. He was married for 15 years and had been divorced for 7 years. He said that he had difficulty with interpersonal relationships and currently had no friends; he saw his family occasionally but they were not close. He noted that he would go for a couple of days sleeping 2-3 hours a night but then will become so tired that "his sleep will catch up." The Veteran was described as alert, oriented, and well groomed, with no evidence of a thought disorder. His mood was moderately depressed with a blunt affect. No Axis I psychiatric diagnosis was provided. The Veteran was noted to have a number of symptoms suggestive of PTSD but did not appear to meet the full definition of PTSD. According to September and October 1997 diagnostic records from K. Gibson, Ph.D., the Veteran was fully oriented without any sign of a thought disorder. He was mildly to moderately depressed, with a restricted affect. The diagnosis was dysthymic disorder, rule out PTSD. His estimated GAF score was 55. A report of February 2001 psychological evaluation from K. J. Manges, Ph.D., reflects review of the pertinent evidence of record and concludes that the Veteran meets the criteria for a diagnosis of PTSD, which included feelings of detachment or estrangement from others. It was reported on VA evaluation in February 2002 that the Veteran was oriented and had good grooming. He had disturbed sleep and a depressed mood with a restricted affect. The diagnosis was PTSD, chronic, with mild symptoms. His GAF score was 60. The Veteran complained on VA evaluation in April 2004 of insomnia, low mood, intermittent irritability, isolation from others, mild paranoia, and claustrophobia. On mental status evaluation, the Veteran was oriented, his mood was fair, his affect was slightly flattened, and his thought process was generally logical and goal directed. The diagnosis was PTSD, mild and chronic. His GAF score was 55. The examiner concluded that the Veteran's PTSD did not appear to be severe enough to preclude gainful employment. The Veteran complained on VA evaluation in October 2007 that he was socially isolated, depressed, had problems with memory and concentration, had increased irritability, and had problems sleeping. PTSD and dysthymia were diagnosed, and the GAF score was 50. The examiner found that the Veteran's PTSD symptomatology resulted in deficiencies in judgment, thinking, family relations, work, and mood, but did not cause total occupational and social impairment. According to VA psychiatric evaluation in April 2010, the Veteran's mood was anxious, his affect was inappropriate and flat, he had no social relationships, and he had sleep impairment. He was oriented, his thought process was unremarkable, he did not have homicidal or suicidal thoughts, and he did not have panic attacks. PTSD and dysthymia were diagnosed, and the GAF score was 52. His symptoms were considered moderate. The Veteran was provided another VA psychiatric evaluation in February 2012. His symptoms included depressed mood, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. PTSD was diagnosed, and the GAF score was 54. The Veteran was considered to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. A Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); however, as the Court held in Mauerhan, without the examples noted in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating should be assigned. Id. The Board must now determine whether there is evidence that the Veteran's PTSD with dysthymia more nearly approximated the criteria for a 100 percent rating at any time during the appeal period under the old rating criteria in effect prior to November 7, 1996 or as amended effective November 7, 1996. With respect to the old rating criteria in effect prior to November 7, 1996, which may be applied throughout the entire appeal period, the finding of only one of the criteria listed for a 100 percent rating in Diagnostic Code 9411 is sufficient to support the assignment of that rating. Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In view of the foregoing, the Board finds that the most probative competent evidence of record establishes that manifestations of the service-connected PTSD more nearly approximate a 100 percent rating beginning on the date of the August 26, 1997 VA evaluation. Although there is some evidence that the Veteran was isolated prior to examination on August 26, 1997, it was on evaluation on August 26, 1997 that there is sufficient evidence indicating that the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, which is one of the independent criteria for a 100 percent rating under the criteria effective beginning prior to November 7, 1996, as the Veteran was divorced, was unemployed, was living in an apartment in his mother's house, had no friends, and did not appear to even socialize with his family. The evidence prior to August 1997 does not show totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; this evidence also does not show that the Veteran was demonstrably unable to obtain or retain employment. In fact, when examined in October 1996, the Veteran was alert, oriented, and well groomed. His thoughts were logical and coherent. His GAF score in January 1997 was 50, which was considered serious symptomatology is closer to moderate symptoms, which begin at 51, than to the scores for major impairment, which is from 31 to 40. The medical evidence from November 7, 1996 to August 26, 1997 also does not show symptoms indicative of total occupational and social impairment, with symptoms such 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. The testimony and lay statements on file have been taken into consideration. The Veteran is competent to report his psychiatric symptoms. His observations are credible, but must be evaluated in light of the rating schedule described above. In this regard, he is not competent to assess whether his symptoms meet the rating criteria of a specific diagnostic code, as this requires medical training and technical knowledge which the Veterah has not been shown to possess. The lay statements have been considered in the above noted grant of a 100 percent rating for the service-connected PTSD effective August 26, 1997; however, evaluations for VA purposes have not shown the severity required for a 100 percent schedular rating prior to August 26, 1997, as discussed above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the issue on appeal should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (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 the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. In this case, the schedular criteria are adequate for rating the disability at issue. Ratings in excess of those assigned are provided in the rating schedule for service-connected PTSD and dysthymia, as noted above, but the medical evidence reflects that the disability does not show the symptomatology warranting a higher rating prior to August 26, 1997. See 38 C.F.R. § 4.1 (1997). The record does not reflect (or suggest) any symptoms/impairment of the disability not encompassed by the schedular criteria. There is also no evidence of frequent periods of hospitalization due to this service-connected disability. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, as noted above, a TDIU has been awarded effective from September 19, 1996. ORDER An initial evaluation in excess of 70 percent for PTSD prior to August 26, 1997 is denied. An initial evaluation of 100 percent for PTSD beginning August 26, 1997 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs