Citation Nr: 1805725 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 94 34 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to February 12, 1999, and in excess of 30 percent from February 12, 1999, to May 28, 2002. 2. Entitlement to an effective date earlier than November 28, 2005, for the award of a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1951 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In June 2009, the Board, in pertinent part, granted entitlement to a TDIU and assigned an effective date of November 28, 2005. The Board also found that it did not have jurisdiction over the issue of entitlement to an effective date prior to November 28, 2005, for the award of a TDIU and referred the issue to the AOJ for initial adjudication. Finally, the Board granted an earlier effective date of May 7, 1991, for the award of service connection for PTSD. In September 2009, the RO implemented the Board's June 2009 award of an effective date of May 1991 for the award of service connection for PTSD and a TDIU from November 28, 2005. The RO also assigned an initial rating of 10 percent for PTSD prior to February 12, 1999, and a 30 percent rating thereafter. In March 2011, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision, finding, in pertinent part that the Board erred insofar as it assigned an initial effective date of November 28, 2005, for the award of a TDIU and referred the issue of entitlement to an effective date for the award of a TDIU prior to November 28, 2005. The Court held that the Board did not have the authority to assign the effective date for the award of a TDIU in the first instance. Therefore, the Court set aside the Board's assignment of an effective date for the award of a TDIU and remanded the issue to the Board for further proceedings consistent with the Court's decision. In November 2011, the Board, in pertinent part, remanded the issue of entitlement to an earlier effective date for the award of a TDIU for initial adjudication, pursuant to the Court's remand directives. In April 2012, the RO denied entitlement to an effective date earlier than November 28, 2005, for award of a TDIU. In September 2012, the Board remanded for the issuance of a statement of the case the issue of entitlement to an initial rating in excess of 10 percent prior to February 12, 1999, and in excess of 30 percent thereafter, as well as the issue of entitlement to an effective date prior to November 28, 2005 for the award of a TDIU. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In March 2013, the Veteran appointed Mark Lippman, Esquire, as his representative solely as to the issue of entitlement to an effective date prior to November 28, 2005, for the award of a TDIU, thereby effectively revoking the prior representation by the Puerto Rico Public Advocate for Veteran Affairs (PRPAVA) as to this issue. However, the PRPAVA continued to represent the Veteran as to the increased rating issues. In October 2013, the Veteran revoked his prior appointment of Mark Lippman as his representative. The Board finds that the Veteran properly revoked this attorney's representation. See 38 C.F.R. § 14.631(f)(1). In May 2017, the Veteran stated that he did not have a power of attorney. The Board construes this statement as a revocation of his prior appointment of the PRPAVA as his representative as to the issues of increased initial ratings for PTSD. The Veteran has not filed a VA Form 21-22 or VA Form 21-22a designating another individual or accredited service organization as his representative. He is now unrepresented. In April 2005, the Board increased the Veteran's rating for PTSD from 30 percent to 50 percent, effective May 29, 2002. The Veteran did not appeal this issue to the Court; thus, this decision of the Board is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1104 (2017). The issue on appeal has been recharacterized to reflect that this limitation as to the time period considered herein for the issue of an increased rating for PTSD. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Below, the Board assigns an effective date of May 29, 2002, for the award of a TDIU. The issue of entitlement to a TDIU prior to May 29, 2002, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD symptoms most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but did not approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. VA received the Veteran's claim for service connection for PTSD on May 7, 1991, and the Veteran's TDIU stems from such claim. 3. Entitlement to a TDIU existed from August 26, 2002, when the Veteran met the schedular criteria for a TDIU and his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the period on appeal prior to February 12, 1999, the criteria for an initial rating of 30 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. From February 12, 1999, to May 28, 2002, the criteria for a rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9411 (2017). 3. The criteria for an effective date of August 26, 2002, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Initial Ratings - Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Initial Rating Claims for PTSD - Analysis The Veteran is in receipt of a 10 percent initial rating for PTSD prior to February 12, 1999, and a 30 percent rating from February 12, 1999, to May 29, 2002, under 38 C.F.R. § 4.130, DC 9411 (2017). All psychiatric disabilities are evaluated under a general rating formula for mental disorders. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or when symptoms are controlled by continuous medication. A 30 percent rating 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 de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in May 2017; therefore, the claim is governed by DSM 5. However, the amended regulations made no change to the symptomatology assigned to each of the disability ratings provided for in the General Rating Formula for Mental Disorders. The Board notes that the use of the GAF scale has been abandoned in the DSM 5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). However, DSM-IV was in use during portions of the appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 and 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. See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). 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). Id. at p. 47. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. Scores ranging between 31 and 40 are assigned when there is 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). Id. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. Turning to the evidence, an August 1981 VA hospital discharge report indicated that the Veteran had been hospitalized for depression previously, in 1980. The Veteran's recent symptoms included not recognizing his son, getting lost when he was out, nightmares, and insomnia. The Veteran reported having had a dissociative-like episode and fearing that he would harm his family and self. Insight and judgment were poor. An April 1982 VA treatment record indicated that the Veteran verbalized lots of hostility towards his son's teacher. He threatened to fight the teacher several times. He was not sleeping properly. The Veteran's wife reported that he was having difficulty with self-control, causing him to bang the walls, and he had broken a pitcher that morning. The Veteran was having trouble at work, with feelings of aggressiveness and fear of losing control. He was actively hallucinating during the interview. An April 1982 VA in-patient treatment note indicated that the Veteran had been suffering from insomnia, intranquility, depression, and had been agitated. On examination, the Veteran was reported to be anxious, uncooperative, and unspontaneous, with good hygiene. The Veteran worked as a teacher and had trouble with a co-worker. He described feelings of inadequacy and guilty feelings. No suicidal or homicidal intent was detected. He had impaired insight and judgment. His memory was adequate and his affect was flattened. In April 1982, the Veteran's daughter stated that she did "not dare to talk at home, not even to ask him how he is because he might be in a mood that would attack" her. She stated that she locked herself in her bedroom when at home because she was afraid her father would beat her. She also stated that the Veteran's nightmares caused him to start screaming and hitting the walls uncontrollably. An August 1982 VA treatment note indicated that the Veteran's nightmares had diminished noticeably, but he still felt anxious and depressed on occasion. In January 1991, the Veteran's treating physician stated that the Veteran was being treated for anxiety with medication. The Veteran had difficulty sleeping. On examination, the Veteran was anxious, with good memory and no speech difficulties. A February 1991 VA treatment note indicated that the Veteran was anxious, easily irritable, ill-humored, and could not work. The Veteran was afforded a VA examination in May 1993. He reported being retired since 1984. He reported being treated for insomnia and nightmares during service. The Veteran stated that he suffered from nightmares in which he reenacted his wartime experiences. He reported that he began to drink a lot to help him sleep when he returned from Korea, but had not been drinking in the past several years. During the examination, the Veteran was clean and adequately dressed and groomed. He was alert and fully oriented. He was somewhat depressed and anxious. His affect was constricted. The Veteran's impulse and judgment were fair, and he exhibited good impulse control. An October 1996 VA treatment note indicated that the Veteran had nightmares and was unable to sleep. He had thoughts of self-harm, but no intent to do so. An August 1997 VA treatment note indicated that the Veteran had nightmares and sleep impairment. The Veteran was afforded a VA examination in February 1999. He reported working as a teacher for 25 years before retiring in 1984. The Veteran reported that he had nightmares and difficulty sleeping. He stayed at home watching television or reading. His mood was slightly anxious and his affect was constricted. Insight and judgment were fair, and he exhibited good impulse control. A GAF score of 70 was assigned. The Veteran was afforded a VA examination in June 1999. The Veteran reported having a master's degree. He also reported being rigid and disciplined, and over worrying about simple situations or details. He described issues with a student and a parent when he was working as a teacher. He occupied himself with farm chores and writing songs. During the examination, his mood was depressed and his affect was blunted. A GAF score of 65 was assigned. The Veteran was afforded a VA examination in May 2002. He reported receiving psychiatric treatment in 1978 for symptoms of depression, anxiety, irritability with insomnia, intrusive thoughts, and frequent nightmares. He also reported four prior psychiatric hospitalizations between 1980 and 1982. During the previous year the Veteran had reported symptoms of sadness, irritability, loss of interest in daily living activities, inability to feel pressure in daily tasks, loss of energy, insomnia, loss of appetite, anxiety, and tension. He reported daily nightmares that caused sleep impairment, anxiety, restlessness, tension, and crying spells. The Veteran also reported having persistent, distressing thoughts about his combat experiences. He felt jumpy and hypervigilant. He avoided going to the nearby military base, seeing news about the war on television, and seeing movies about war or violence. The Veteran reported that he retired in 1984 due to his mental disorder. He had been married for 46 years. He drank heavily after service, but stopped drinking in 1994. During the examination, the Veteran's mood was anxious and depressed. His affect was constricted, but appropriate. He was irritable, with difficulty concentrating. He also had insomnia. He was jumpy and hypervigilant. A GAF score of 50 was assigned. He had difficulty with interpersonal relationships and in leisure and recreation activities. After a review of the evidence, both lay and medical, the Board finds that the Veteran's MDD symptoms most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks prior to February 12, 1999. The evidence indicates that during the initial rating period prior to February 12, 1999, the Veteran had symptoms of depression, anxiety, chronic sleep impairment, and mild memory loss. While the Veteran's medical records dated prior to the initial rating period on appeal, in the early 1980s, indicate that he had experienced symptoms of not recognizing his son, getting lost when leaving his home, a dissociative-like episode, fear that he would harm his family and self, suicidal ideations, flattened affect, difficulty in adapting to stressful circumstances, impaired impulse control, and hallucinations, the evidence indicates that these symptoms resolved and were not present during the initial rating period on appeal. Therefore, the Board finds that the evidence relating to the Veteran's MDD symptoms that is dated subsequent to the effective date of the grant of service connection for MDD is more probative in determining the current severity of the Veteran's MDD symptoms during the period on appeal. For these reasons, the Board finds that an initial rating of 30 percent, but no higher, for MDD is warranted prior to February 12, 1999. However, the criteria for a disability rating in excess of 30 percent have not been met or more nearly approximated for the entire period on appeal. The evidence does not show that the Veteran experienced occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. The evidence shows no symptoms during the initial rating period on appeal of obsessional rituals which interfered with routine activities, gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. There is also no evidence during the rating period on appeal of symptoms of suicidal ideation, speech intermittently illogical, obscure or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, spatial disorientation, suicidal ideation, inability to establish and maintain effective relationships, or neglect of personal appearance and hygiene. Finally, there were no symptoms of circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired abstract thinking; flattened affect; impaired judgment; or impairment of short- or long-term memory. Although the Veteran reported experiencing significant anxiety and irritability, anger issues, and difficulty in adapting to stressful circumstances, the record does not reflect occupational and social impairment in most areas such that a rating in excess of 30 percent would be appropriate. The Veteran reported having at least decent relationships with most members of his family and his GAF scores during this period ranged from 50 to 70. For these reasons, the Board finds that a preponderance of the evidence is against a rating in excess of 30 percent for MDD for the entire period on appeal. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For these reasons, the Board finds that the Veteran's MDD symptoms more nearly approximate the criteria under DC 9434 for a rating of 30 percent, but no higher, prior to February 12, 1999. However, a rating in excess of 30 percent for MDD is not warranted from February 12, 1999, to May 28, 2002. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.130. Earlier Effective Date for the Award of a TDIU - Laws and Regulations With respect to an earlier effective date, a TDIU is a form of increased rating claim, and, therefore, the effective date rules for increased compensation claims apply. Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). In this regard, the effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). The Court has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the ultimate question in determining the effective date for a TDIU is when it was factually ascertainable that the service connected disabilities rendered a veteran unemployable. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. A TDIU may be assigned when a disabled veteran, in the judgment of the rating agency, is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, multiple injuries incurred in action will be considered as one disability. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. "Substantially gainful employment" is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Entitlement to an Earlier Effective Date for the Award of a TDIU- Analysis The RO assigned an effective date of November 28, 2005, for the award of a TDIU. The RO indicates that such date corresponds with the date the Veteran met the schedular requirements for an award of a TDIU. The Veteran contends that an effective date of May 7, 1991, is warranted for the award of a TDIU. He contends that the issue of entitlement to a TDIU was inferred as part of his initial claim of service connection for PTSD, which was filed on May 7, 1991. He further contends that he has been unable to secure and maintain substantially gainful employment due to his service-connected disabilities since 1984. After a review of all evidence of record, the Board finds that the Veteran's claim of entitlement to a TDIU arose as an outgrowth of his May 7, 1991, claim of service connection for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). Therefore, the current appeal stream dates back to the November 2003 RO decision that granted service connection for PTSD. Further, the Board finds that the Veteran had no pending, unadjudicated claim of entitlement to a TDIU or an increased rating prior to May 7, 1991. Id. As such, the Board finds that May 7, 1991, constitutes the date of claim relevant to the current appeal. See 38 C.F.R. § 3.400. As discussed above, generally, the effective date for the award of TDIU is the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). With regard to the date entitlement arose, and in consideration of the increased rating for PTSD granted herein, the record shows that the Veteran is in receipt of service connection for PTSD (rated 70 percent disabling from May 7, 1991 to May 28, 2002, and 50 percent disabling from May 29, 2002 to November 27, 2005, and 70 percent disabling thereafter), and residuals of a right hand shrapnel wound (rated noncompensable prior to August 26, 2002, and 10 percent disabling thereafter). Both of these service-connected disabilities were incurred in action. His combined rating is 30 percent from May 7, 1991, 50 percent from May 29, 2002, 60 percent from August 26, 2002, and 70 percent from November 28, 2005. As such, the Board finds that the Veteran's service-connected disabilities met the schedular criteria for consideration of a TDIU as of August 26, 2002, as there was a combined disability rating of 60 percent and the service-connected disabilities are considered as one disability since they were incurred in action. 38 C.F.R. § 4.16(a). Nonetheless, the Board must also consider whether the Veteran's service-connected disabilities precluded employment during the applicable period on appeal. Based on the evidence of record, detailed above, the Board finds that an earlier effective date of the August 26, 2002 is warranted for the award of a TDIU. As determined above, the date of claim is May 7, 1991. The Board finds that the date entitlement arose was August 26, 2002, the date the schedular criteria for a TDIU were met. The evidence at that time reflects that the Veteran's psychiatric symptoms of irritability, anxiety, depression, chronic sleep impairment, difficulty in establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, hypervigilance, impaired impulse control, irritability, disturbances of motivation and mood, and impaired concentration precluded him from obtaining and maintaining any type of substantially gainful employment. In so finding, the Board also notes that the Veteran had issues with students, parents, and colleagues in the years immediately prior to his retirement, including several threats to fight his son's teacher. However, the Board finds that the schedular criteria for a TDIU have not been met prior to August 26, 2002, as the Veteran's combined disability rating during that period was less than 60 percent. As discussed below, the Board is remanding the issue of entitlement to an effective date prior to August 26, 2002, for the award of a TDIU, for extraschedular consideration. As discussed above, generally, the effective date for the award of a TDIU is the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). The date of claim is May 7, 1991, while the date that entitlement to a TDIU arose is August 26, 2002. Accordingly, August 26, 2002, is the appropriate effective date for the award of the TDIU. ORDER Prior to February 12, 1999, an initial rating of 30 percent, but no higher, for PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. From February 12, 1999 to May 28, 2002, a rating in excess of 30 percent for PTSD is denied. An effective date of August 26, 2002 for the award of a TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND As indicated above, the Veteran seeks an effective date of May 7, 1991, the date of claim, for the award of a TDIU. While the Board granted herein an effective date of August 26, 2002, for the award of a TDIU, that award did not include the period prior to August 26, 2002, as the Veteran did not meet the schedular criteria for a TDIU during that period. See 38 C.F.R. § 4.16(a). Nonetheless, it is VA's policy that a TDIU is warranted whenever a Veteran is unemployable due to service connected disability. The evidence of record reflects that the Veteran's service-connected PTSD caused a degree of impairment that impacted his ability to obtain and maintain gainful employment during the applicable period on appeal, to include the period prior to August 26, 2002. In order to determine whether entitlement arose during the period prior to August 26, 2002, this issue must be remanded to the AOJ for referral to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board cannot consider, in the first instance, entitlement to an effective date prior to August 26, 2002, for the award of a TDIU under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the issue of entitlement to an effective date prior to August 26, 2002, for the award of a TDIU to the Director, Compensation Service. 2. Then, when the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. 3. If an effective date for the TDIU prior to August 26, 2002 is not granted, the Veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs