Citation Nr: 1339895 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-43 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial disability rating greater than 70 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to January 1, 2001, for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from November 1963 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Buffalo, New York. In that decision, the RO granted service connection for PTSD and assigned an initial 70 percent disability rating effective as of September 3, 1991, the date of the Veteran's claim. The RO also awarded entitlement to a TDIU, effective as of January 1, 2001. The Veteran timely expressed disagreement with the assigned initial disability rating for the PTSD, and with the effective date of the TDIU, and perfected a substantive appeal. During the pendency of this appeal, by rating action dated in January 2010, the RO awarded a temporary 100 percent disability rating because of hospitalization for the service-connected PTSD from October 28, 2009, to November 24, 2009. As such, the claim for an increased initial disability rating will be adjudicated for the periods during which the 100 percent disability rating was not in effect. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that a rating decision dated in May 2011 was issued to the Veteran in which it was determined that he was competent to handle his own financial affairs for VA purposes. This rating decision is not contained in the paper claims file, but has been considered by the Board in adjudicating this matter. The remaining documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of an initial disability rating greater than 70 percent for service-connected PTSD prior to January 1, 2001, is addressed in the REMAND portion of the decision below and is REMANDED to the RO. . FINDINGS OF FACT 1. From January 1, 2001, the Veteran's service-connected PTSD has been productive of a demonstrable inability to obtain or retain employment. 2. Prior to January 1, 2001, the Veteran was employed in a full-time job and, thus, his service-connected PTSD did not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. From January 1, 2001, the criteria for a 100 percent disability rating for PTSD have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.16(c), 4.126, 4.129, 4.130, 4.132, Diagnostic Code 9411 (1987, 1996, 2013). 2. An effective date earlier than January 1, 2001, for the award of a TDIU, is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. These appeals arise from a grant of service connection for PTSD and entitlement to a TDIU in a November 2009 rating decision. Courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an initial disability rating or effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Initial Disability Rating for PTSD From January 1, 2001 Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, 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, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran's claim of entitlement to service connection for PTSD was received by the RO on September 3, 1991. By rating action dated in November 2009, the RO service connection for PTSD was established, and an initial 70 percent disability rating was assigned effective as of September 3, 1991, the date of receipt of claim. The schedular criteria for psychoneurotic disorders that were in effect at the beginning of the rating period at issue in this appeal were amended effective November 7, 1996; the November 1996 formula remains in effect. See 61 Fed. Reg. 52695 (Oct. 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2009). As such, the Veteran's claim must be considered under all sets of rating criteria. Effective February 3, 1988, Diagnostic Code 9411 provided that a 70 percent disability rating required severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent disability rating required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, these criteria provide independent bases for granting a 100 percent disability rating. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, VA promulgated 38 C.F.R. § 4.16(c), effective March 1, 1989, which stated that in cases where a mental disorder was assigned a 70 percent disability rating, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular rating under the appropriate diagnostic code. See 54 Fed. Reg. 4280-01 (Jan. 30, 1989). 38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). Under the schedular criteria in effect prior to November 7, 1996, the Court held that where the Veteran's mental disorder was assigned a 70 percent disability rating and that mental disorder precluded a Veteran from securing or following a substantially gainful occupation, regardless of whether the Veteran had other compensable service-connected disabilities, the mental disorder must be assigned a 100 percent disability rating under the appropriate diagnostic code. Johnson, 7 Vet. App. at 97. Under the rating criteria that became effective November 7, 1996, a 70 disability rating requires 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 disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 2002) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA, thus, must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The symptoms recited in the criteria in the rating schedule for evaluating 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. 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. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF 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 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. As a result of this decision, a 100 percent disability rating will be assigned effective as of January 1, 2001. As will be discussed further in the Remand section below, the issue of an initial disability rating greater than 70 percent prior to January 1, 2001, must be remanded as the Veteran has not been notified of the criteria for rating mental disorders prior to November 7, 1996, and these criteria, as well as former regulation 38 C.F.R. § 4.16(c), are applicable to this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, the issue of a disability rating greater than 70 percent from January 1, 2001, will be discussed herein. In a Veteran's Application For Increased Compensation Based On Unemployability (VA Form 21-8940) received in November 2007, the Veteran indicated that he last worked full time in the year 2000, and that he became too disabled to work in 2000. He added that he earned $24,000.00 in the year 2000 as a vocational coordinator in the Commonwealth of Puerto Rico. VA outpatient treatment records dated from October 2005 to August 2006 show that the Veteran was treated intermittently for symptoms associated with his PTSD. He was said to be experiencing ongoing dreams and intrusive memories about Vietnam. He would be agitated and had a recent desire to harm himself by cutting. He experienced sleep disturbance and would only sleep three to four hours per night. He was noted to have psychomotor agitation when talking about Vietnam, and would become tearful. His mood was anxious, and thought processes were clear, coherent, and goal directed. He had ongoing delusional thought content with persecution. Paranoia was present. There was also evidence of auditory hallucinations. A private medical record from F. M. Lugo, M.D., dated in December 2005, shows that the Veteran was said to experience episodes of nightmares and sleep disturbance. He was also noted to experience flashbacks of his time in service. The diagnosis was major depressive neuropsychiatric chronic paranoid schizophrenia, and PTSD related to Vietnam. A GAF of 50 was assigned with a 52 noted over the preceding year. A private medical record from Dr. Lugo dated in September 2006, shows that Veteran exhibited symptoms which included intense fear, helplessness, recurrent and intrusive distressing recollections and dreams of combat, and a sense of reliving traumatic experiences. He was also said to experience hallucinations, chronic depressed mood, and intrusive flashbacks. He would avoid thoughts, feelings, and conversations about Vietnam. He would experience irritability, outbursts of anger, difficulty staying asleep, difficulty with concentration, hypervigilence, and exaggerated startle response. He was said to have marked social and occupational impairment. The diagnosis was PTSD, generalized anxiety disorder, paranoid schizophrenia, and major depression. A GAF of 48 was assigned. A VA examination report dated in August 2007 shows that the Veteran was said to have thought processes that were somewhat tangential and appeared to provide evidence of hallucinations at times. Mood was dysthymic and he did not appear to be fully oriented. He was unable to perform simple calculations or serial subtractions without error. Attention, concentration, and memory skills were impaired. Insight was poor. He reported being sometimes confused and unable to dress, bathe, or groom. He was said to relate symptoms of a thought disorder that included paranoid delusions and hallucinations that he had been having since discharge from service. He would experience intrusive distressing ideation and nightmares at least once every two to three months. He reported experiencing flashbacks and stated fire would cause intense anxiety. He was said to have a sense of detachment from others and a restricted range of affect. He would struggle with irritability and have difficulty concentrating. The diagnosis was PTSD. A GAF of 40 was assigned as he was said to have related serious symptoms of mental health problems and of being unable to work. He would avoid people and had no friends. The VA examiner also stated that the Veteran had total occupational and social impairment solely related to PTSD symptoms. A VA examination report dated in April 2009 shows that the Veteran was said to have signs of PTSD. The examiner noted that the Veteran had been anxious about the examination and urinated on himself while in the waiting area. He demonstrated fair eye contact during the examination. He was alert and apparently oriented in all spheres. He showed no obvious psychomotor retardation or agitation, though twice during the examination he made a loud noise in the form of a sharp yell which surprised the examiner. Speech was spontaneous, though somewhat pressured. Affect was constricted throughout the examination. He was anxious when talking about Vietnam, and suddenly became labile and broke down hard. He did not appear to show any gross delusional features or auditory or visual hallucinations. Thought process was generally coherent. Insight into his condition was poor. Judgment appeared marginal, though he did not appear to be a danger to himself or others. The diagnosis was PTSD, combat related, due to combat traumatic experiences in Vietnam; and psychotic disorder, not otherwise specified, in partial remission. The current GAF was 32 for combined PTSD and psychotic disorder; and 38 for PTSD by itself. The examiner added that the Veteran needed to be in ongoing psychiatric treatment on an indefinite basis. A private medical record from The Resource Center dated in December 2009 shows that the Veteran was undergoing group counseling and individual counseling as needed for a history of paranoid schizophrenia and PTSD. A lay statement from the Veteran's pastor dated in December 2009 shows that he was said to be a faithful member of the parish at both worship and social experiences. His participation was said to be beneficial in dealing with his depression. He was said to have difficulty with participation because of various medical and psychological conditions. A lay statement from the Veteran's daughter dated in January 2010 shows that he was said to exhibit symptoms which included flashbacks, sleep disturbance, and auditory hallucinations. He was also said to be hearing voices. A VA Field Examination report dated in March 2010 shows that the Veteran was said to be capable to handle his financial compensation benefits for VA purposes. This was reiterated in a letter from Dr. Lugo dated in April 2011. Initially, the Board notes that the Veteran's claim for a higher disability rating may be evaluated under both the former and the current criteria in the rating schedule. However, the former criteria are more favorable when considering an increased disability rating from 70 percent to 100 percent. Thus, only the criteria effective prior to the aforementioned revision will be applied to the present matter, and there is no prejudice to the Veteran in this respect. See generally Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Based on the evidence of record, both medical and lay, the Board concludes that the criteria for a 100 percent schedular disability rating for service-connected PTSD have been met, from January 1, 2001. To this extent, the Board grants the Veteran's appeal during this staged period on appeal. Initially, the Board finds the Veteran's statements to be competent and credible, with respect to PTSD related symptomatology, to include employment impairment. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted, the Veteran has indicated that he was working full time until the year 2000 wherein he had earned $24,000.00, until he became totally disabled. VA outpatient treatment records dated from October 2005 to August 2006 show nightmares, intrusive thoughts, desire to harm himself by cutting, sleep disturbance, psychomotor agitation, anxious mood, delusions, paranoia, and auditory hallucinations. In December 2005, he was assigned a GAF of 50 which is indicative of serious symptoms or any serious impairment in social and occupational functioning. In September 2006, he exhibited intense fear, helplessness, intrusive thoughts, depression, flashbacks, avoidant behavior, irritability, anger, difficulty concentrating, hypervigilence, and exaggerated startle response. He was said to have marked social and occupational impairment, and the GAF of 48 was indicative of serious symptoms or any serious impairment in social and occupational functioning. In August 2007, the VA examiner concluded that the Veteran had total occupational and social impairment solely related to PTSD symptoms. In April 2009, the Veteran was assigned a GAF of 32 to 38 which is indicative of some impairment in reality testing or communication or any major impairment in several areas, such as work, family relations, judgment, thinking or mood. Resolving all doubt in the Veteran's favor, the Board finds that, during the entire period beginning January 1, 2001, the Veteran's psychiatric symptoms have resulted in a severely impaired ability to establish and maintain effective or favorable relationships with others, and an inability to obtain or retain employment. Thus, the Veteran's PTSD, at the very least, most closely approximates a 70 percent schedular disability rating, under 38 C.F.R. § 4.130 (1996). Additionally, the evidence of record, also confirms that the Veteran has been severely impaired in his ability to obtain and/or retain employment because of his PTSD symptoms. Ultimately, the Veteran's service-connected PTSD from January 1, 2001, has met the criteria for a 70 percent disability rating and has prevented him from securing or following a substantially gainful occupation. Therefore, from the period beginning January 1, 2001, the Veteran entitled to a schedular 100 percent disability rating, pursuant to 38 C.F.R. § 4.16(c) (1996), which was in effect at the time he filed his initiating claim. Earlier Effective Date for TDIU The provisions governing the assignment of the effective date of an increased disability rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a TDIU is a claim for an increased disability rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). A TDIU may be assigned where the schedular rating is less than total if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Further, marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 356 (2000). Here, the evidence uniformly shows that the Veteran was employed on a full-time basis until 2000. As indicated above, in November 2007 VA Form 21-8940, the Veteran indicated that he last worked full time in the year 2000, and that he became too disabled to work in 2000. He added that he earned $24,000.00 in the year 2000 as a vocational coordinator in the Commonwealth of Puerto Rico. In the April 2009 VA examination report, it was indicated that the Veteran worked as a vocational coordinator for about 10 to 15 years while in Puerto Rico until he stopped around 1997. He added that he owned a farm which he ended up selling in 2003. In the January 2010 lay statement from the Veteran's daughter, it was indicated that he had worked hard for 27 years as a vocational coordinator for handicapped students. In February 2011, the Veteran's representative submitted a statement from the Social Security Administration showing the Veteran's taxed Social Security earnings from 1962 to 2009. While the statement appears to suggest that the Veteran had minimal wage earnings during the stated time period, the Veteran's own statements, as well as the lay and medical evidence of record, suggest otherwise. In this regard, the Veteran was said to have worked as a vocational counselor for 27 years, and that he earned a substantial income through the year 2000. Thus, because the facts show that the Veteran was employed on a full-time basis until 2000, there is no entitlement under the law to the benefit sought. Accordingly, this claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet App 426 (1994); see also Faust; 38 C.F.R. § 4.16. ORDER A 100 percent disability rating for PTSD, from January 1, 2001, is granted, subject to the law and regulations governing payment of monetary benefits. Entitlement to an effective date prior to January 1, 2001, for the award of a TDIU is denied. REMAND As noted above, to date, the Veteran has not been notified of the criteria required for rating mental disorders prior to November 7, 1996, and these criteria, as well as former regulation 38 C.F.R. § 4.16(c), are applicable to this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, for due process reasons, the Board has no discretion and must remand this the issue of an initial disability rating greater than 70 percent for service-connected PTSD prior to January 1, 2001. Accordingly, the case is REMANDED for the following action: 1. The RO shall notify the Veteran of the 70 and 100 percent disability rating criteria for evaluating mental disorders in effect prior to November 7, 1996, and the text of former regulation 38 C.F.R. § 4.16(c). 2. The RO shall then readjudicate the appeal. In doing so, the RO must consider the criteria for evaluating mental disorders in effect prior to November 7, 1996, the impact of former regulation 38 C.F.R. § 4.16(c) (1996), and 38 C.F.R. § 4.16(a) and the Court's decision in Rice. If action remains adverse to the Veteran, he and his representative must be issued a Supplemental Statement of the Case. The case shall then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs