Citation Nr: 0318338 Decision Date: 07/31/03 Archive Date: 08/05/03 DOCKET NO. 97-00 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent from February 17, 1995, to October 23, 1996, for post-traumatic stress disorder. 2. Entitlement to a disability rating in excess of 70 percent from December 1, 1996, for post-traumatic stress disorder. 3. Entitlement to an effective date earlier than October 24, 1996, for an award of a total disability rating based on individual unemployability due to a service-connected disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from November 1963 to October 1966. This appeal to the Board of Veterans' Appeal (Board) arises from a September 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that denied the veteran an increase rating for his post-traumatic stress disorder (PTSD), then evaluated as 50 percent disabling. The appeal also arises from a May 2000 rating decision that granted the veteran an increased rating for his PTSD from 50 percent to 70 percent disabling, effective from December 1, 1996, and granted the veteran a total disability rating based on individual unemployability (TDIU), effective from October 24, 1996. A hearing was held before the undersigned Veterans Law Judge (formerly referred to as a Member of the Board) at the RO in September 2001. A transcript of the hearing testimony has been associated with the veteran's claims file. In December 2001, this appeal was remanded to the RO for further development, as well as for due process consideration. As reflected in the Board's Remand, the PTSD claim is before the Board from a September 1995 rating decision, which denied an increased rating for this psychiatric disability, then evaluated as 50 percent disabling. It is noted that in December 1994, the RO increased the evaluation assigned for this disorder from 30 to 50 percent, and that the veteran expressed disagreement with this decision, arguing that a higher evaluation was warranted. However, an appeal was not timely perfected. As such, the Board accepts a VA hospital report dated from February 17 1995, as the date of the claim for an increased rating for PTSD. See 38 C.F.R. § 3.157 (2001). FINDINGS OF FACT 1. During the period from February 17, 1995, to October 30, 1995, the veteran's PTSD was productive of no more than considerable impairment of social and industrial adaptability; and was productive of no more than occupational and social impairment with reduced reliability and productivity. 2. During the period from October 31, 1995, the veteran's PTSD has been productive of no more than severe impairment of social and industrial adaptability; and was productive of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 3. The evidence of record demonstrates that as of October 31, 1995, the veteran met the criteria for a combined rating of 70 percent for his service-connected disabilities, and since that date, the veteran was and continues to be unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for PTSD, for the period from February 17, 1995, to October 30, 1995, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2002); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), as amended by 38 C.F.R. § 4.130, Diagnostic Code (2002). 2. The criteria for a 70 percent disability rating for PTSD, for the period from October 31, 1995, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2002); 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996), as amended by 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). 3. The criteria for a schedular disability rating in excess of 70 percent for PTSD have not been. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2002); 38 C.F.R. §§ 4.16(c), 4.132, Diagnostic Code 9411 (1996), as amended by 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). 4. The criteria for an effective date of October 31, 1995, for an award of a total disability rating based on individual unemployability due to a service-connected disability are met. 38 U.S.C.A. §§ 5110 (West 2002); 38 C.F.R. §§3.155, 3.400 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) of 2000 The Board observes that recently enacted law and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide the VA will assist the claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R. §§ 3.102, 3.159(c)-(d) (2002). The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b) (2002). The record reflects that VA provided the veteran and his representative copies of the appealed rating decisions noted above, a February 1996 statement of the case, and a September 2000 statement of the case, as well as supplemental statements of the case dated in December 1996, May 2000, and March 2003. These documents, collectively, provide notice of the law and governing regulations, the evidence needed to support the claims (for an increased evaluation for the veteran's service-connected PTSD and an earlier effective date for the award of a TDIU), and the reasons for the determinations made regarding the veteran's claims. By way of the December 2001 Board Remand, and the RO's January 2002 letter, the veteran was notified that VA was undertaking additional development of his claims; he was informed of the information and evidence needed from him to substantiate his claims; and he was notified that VA would provide him assistance in obtaining this evidence. Thus, it is apparent from the aforementioned documents that VA identified to the veteran the information and evidence necessary to support his claims, and then offered to assist him by assuming sole responsibility for obtaining such relevant evidence on his behalf. Furthermore, the record discloses that the VA has also met its duty to assist the veteran in obtaining evidence necessary to substantiate his claims. Most notably, copies of relevant VA inpatient and outpatient treatment records have been obtained and associated with his claims file and the veteran has been afforded a VA examination to assess the nature and severity of his psychiatric condition in January 2003 in connection with his claim. He has also been afforded personal hearings in connection with his claim in May 1996 and September 2001. There is no identified evidence that has not been accounted for and the veteran's representative has been given the opportunity to submit written argument. Therefore, under the circumstances, VA has satisfied both his duty to notify and assist the veteran in this case and adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. See e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background A review of the evidence shows that the veteran served in Vietnam as a "gunner." His awards and decorations include the Combat Infantryman's Badge. On a VA psychiatric examination in August 1991 the veteran stated that his psychiatric problems started soon after he was discharged from the Army where he served as an Infantryman in Vietnam. He said that following his discharge he attended a trade school for three months but felt too anxious to be able to function and quit it. He said thereafter he had several short-lived jobs and usually would quit because he was unable to get along with his supervisors. In 1968 he relocated to New York City and worked as an assemblyman telephone repair for a telephone company for five years. He reported that his drinking became heavier and that he was frequently absent and late and consequently quit this job. He said for the past 10 years he has been unemployed and receives a nonservice-connected VA pension because of severe arthritic problems. On mental status examination the veteran's productions were relevant and coherent. His mood was anxious and depressed. Affect was appropriate. The veteran stated that he was sensitive to loud noises and has a startle reaction and also experiences flashbacks. He added that he finds it difficult to relate to people and feels comfortable when alone. He noted that he has occasional outbursts of anger and is constantly arguing with his girl friend. The veteran expressed pessimism about his future. His memory and concentration were noted to be impaired. There were no hallucinations, delusions, thought broadcasting or thought insertion. The veteran denied suicidal ideations or any history of suicidal attempts. There were no phobias, obsessions, compulsions or panic attacks. Chronic PTSD, dysthymia and alcohol dependence were the diagnoses. Service connection for PTSD was granted by an RO rating decision dated in November 1991. This disorder was rated 30 percent disabling under Diagnostic Code 9411 of VA's schedule for rating disabilities (rating schedule), effective from July 1991. On a VA PTSD examination in September 1993 the veteran reported a history of multiple joint pain and weakness beginning in the 1960's. He also reported that he last worked in 1984 as a custodian. He stated that he has had joint pains that keep him from doing anything and that he cannot work or walk. He also said that he began having bad dreams and had been told he had PTSD. On mental status examination the veteran was noted to be well developed and well nourished and to talk and relate marginally. It was observed that he was cheaply dressed and in need of a bath. He was well-oriented as to time, place and person with good recall for recent and remote events. His affect was very shallow and his thinking was concrete. There was no evidence of loosening of associations, illogical thinking, or rambling. The veteran's mood showed no evidence of significant anxiety or depression although the veteran claimed both. He denied auditory or visual hallucinations and seemed to be testing reality adequately. The examiner estimated his IQ to be low/normal or slightly below normal and his judgment and insight to be only fair. He noted that the possibility of malingering or manipulation symptoms of PTSD could not be excluded. Post-traumatic stress disorder, only if you accept his symptoms as being fact and severe as well as alcohol abuse through the years was the Axis I diagnosis. It was noted that the veteran also had a questionable diagnosis of rheumatoid arthritis on Axis III and that he was complaining of significant social and vocational impairment secondary to the Axis III diagnosis. On VA hospitalization beginning in December 1993 the veteran gave a long history of PTSD dating back to service in Vietnam. On mental status examination he appeared to be alert and to maintain positive eye contact. His motor activity was within normal limits and his speech was spontaneous, logical and goal-oriented. His emotional tone was appropriate to his thought content. His mood was noted to be one of mixed anxiety and depression. His thought content dealt with Vietnam issues and content. He was oriented to time, place and person and past memory was grossly intact. He denied any suicidal or homicidal ideations. He reported Vietnam flashback experiences but there was no evidence of hallucinations. The veteran was admitted to the inpatient PTSD rehabilitation unit to participate in the PTSD rehabilitation program. During the course of his hospitalization he was noted to appear to be relating well to staff and other patients and he attended all scheduled therapy activities. However, a urine drug screen taken during his hospitalization was positive for Cocaine and as a result he was discharged from this hospitalization. At discharge the veteran was advised that he needed to attend outpatient treatment because of his continuing PTSD symptoms. No discharge medications were given. The veteran was subsequently hospitalized by VA beginning in March 1994. At this time the veteran presented with a history of chronic and severe PTSD symptoms. It was noted that the veteran's PTSD symptoms included severe anxiety secondary to loud and sudden noise consistent with hypervigilance in addition to hyperarousability. It was also noted that the veteran reported severe Vietnam nightmares and severe Vietnam flashbacks as well as ongoing and severe Vietnam intrusive thoughts. On mental status examination the veteran appeared alert but hyperarousable. His speech was spontaneous but slow. His thought process was logical and goal-oriented. His mood was one of mixed anxiety and depression. His emotional tone was appropriate to his thought content. His thought content dealt with PTSD symptoms. He denied any suicidal or homicidal ideas or plans. There was definite evidence of Vietnam flashbacks. There was no evidence of hallucinations. The veteran was well-oriented to time, place and person and his memory was intact. On this hospitalization the veteran was admitted to the special inpatient PTSD rehabilitation unit to participate in Phase I and Phase II of the PTSD rehabilitation program. He attended all assigned individual and group therapy sessions in a consistent and conscientious basis. During his therapy the veteran was able to deal effectively with his ongoing and severe PTSD symptoms. At the time of discharge it was noted that he still continued to have PTSD symptoms but had gained insight on how to cope with these symptoms and how to proceed further with working therapeutically on his PTSD symptoms on an outpatient basis. With respect to his work status it was noted at discharge that the veteran's ability to seek and maintain employment is severely affected by both his physical limitations from multiple degenerative joint disease and from ongoing and severe PTSD symptoms, which severely affect his ability to work and adapt socially. It was noted that his current primary PTSD symptoms, which limit his ability to work and adapt socially include severe anxiety, secondary to PTSD, hyperarousability, ongoing and severe Vietnam nightmares, continuing Vietnam flashbacks and Vietnam intrusive thoughts with decreased concentration. At discharge chronic severe PTSD was the Axis I diagnosis and the veteran's Global Assessment of Functioning (GAF) was assessed as 45. The disability evaluation for the veteran's PTSD was increased from 30 percent to 50 percent disabling, effective from July 1994 on a schedular basis by an RO rating action dated in December 1994. VA hospitalized the veteran in February 1995 for an exacerbation of his chronic PTSD symptoms. It was noted that since his prior discharge the veteran had experienced increased isolation, increased anger, and increased feelings of helplessness. It was noted that he was especially upset by urges to seriously harm his brother-in-law while having an argument. On mental status examination the veteran was noted to be alert and oriented with no evidence of thought disorder, delusions or hallucinations. It was observed that he was of average intelligence with no memory defect for recent, immediate or remote memory. He had intrusive thoughts of Vietnam. His speech was appropriate and affect was anxious. Mood was anxious and irritable. He had no suicidal or homicidal ideations or intent. While hospitalized the veteran was provided medications to include Restoril. He was noted to participate actively in all phases of his treatment program and he was felt to be prepared for discharge with good reduction of symptoms in March 1995. PTSD was the Axis I diagnoses and the veteran's GAF was assessed as currently 45 and for the past year, 50. The veteran was thereafter hospitalized by VA beginning in October 1995. On this hospitalization the veteran was admitted with a well-documented history of chronic and severe PTSD. At the time of his admission he complained of continuing nightmares, severe anxiety, and sleep disturbance. He was also noted to have continuing chronic and severe PTSD symptoms, which included hyperarousability and ongoing and severe decreased concentration. On mental status examination the veteran was noted to be alert and to maintain adequate eye contact with his examiner. There was evidence of anxiety in his motor activity. His speech was spontaneous and his thought process was logical. His emotional tone was appropriate to his thought content. His mood was one of mixed anxiety, anger, and depression. His thought content dealt with the PTSD symptoms noted above. His sensorium was noted to be clear with good orientation to time, place and person. There was no evidence of hallucinations and no evidence of suicidal or homicidal ideas or plans. During this hospitalization the veteran was admitted to the specialized inpatient PTSD program to participate in the PTSD restabilization program. Despite considerable anxiety and ongoing PTSD symptoms the veteran was able to relate adequately to other patients and staff; however, it was noted this was only because of the highly structured and focused therapeutic nature of the unit. He attended all assigned group and individual treatment contacts. By the end of his hospitalization he still had definite evidence of chronic and severe PTSD symptoms. He had gained some insight in how to cope with these ongoing symptoms. Because of the chronic and severe nature of his PTSD symptoms it was noted that he would require continuing outpatient treatment on a regular basis and would most likely require future periods of inpatient treatment. His prognosis at discharge was guarded and his discharge medications included Prozac. With respect to his work status it was noted that the veteran has had chronic difficulty maintaining employment and was last able to work in 1982 a full 13 years prior to this hospital admission. It was added that his ability to seek and maintain any employment, as well as his ability to adapt in usual normal social situation continues to be severely affected by his chronic and severe PTSD symptoms. It was added that specific PTSD symptoms which limit his ability to work and adapt include continuing and severe anxiety directly caused by his PTSD, continued hyperarousability and vigilance, continuing and severe nightmares, continuing and severe flashbacks, and continuing and severe intrusive thoughts. It was noted that Vietnam intrusive thoughts directly and very adversely affected his ability to concentrate causing particular disability in any situations requiring focused work tasks. Chronic, severe post-traumatic stress disorder was the Axis I diagnoses at discharge and the veteran's current GAF was assessed as 40 as well as 40 for the past year. A VA outpatient treatment record dated in December 1995 shows that the veteran presented to a VA mental health clinic reporting that he has been doing fairly well since his discharge from VA hospitalization in November 1995. It was noted that he had been on no psychotropics and that his pharmacy profile reflected the same. It was noted that his discharge note reflected that he was advised to take Prozac; however, he was not given the medication. The veteran was noted on examination to be calm and cooperative to make fair eye contact and to be in no acute distress. His speech was soft tone and fluent. His mood was characterized as okay. His affect was appropriate and there were no suicidal or homicidal ideations and no psychotic features. PTSD clinically stable was the diagnostic impression. In a statement, received by the RO in April of 1995 and 1996, the veteran indicated that he was rated 50 percent disabling, and that he was unemployable due to his service-connected disabilities. The information of record reflects that no adjudicative action was taken by the RO as regards the veteran's claim of unemployability. At a personal hearing in May 1996, the veteran stated that he had been periodically hospitalized by VA and had participated in different PTSD programs. He testified that he lived with his mother for the last three years because she was the only person he could get along with. He further said that he last worked in 1982 and quit because he could not stand the pressure of the job. When asked to describe how he spends his days he said that he stays in his room most of the time and sleep until about 12 or 1 o'clock in the daytime. He described his reoccurring dreams, which he said occur approximately 2 or 3 times a week. He said he was not on any current medication for his PTSD and that none had been prescribed. Lastly the veteran testified that he had trouble with anger and with socializing with "different people." On October 24, 1996, the veteran was hospitalized for a long history of chronic and severe PTSD symptoms. At the time of this admission the veteran complained particularly about his Vietnam nightmares, his poor sleep, his anxiety secondary to his PTSD, and being irritable. It was noted that his PTSD symptoms included continuing and severe hyperarousability, vigilance, continuing and severe flashbacks and ongoing and severe intrusive thoughts in addition to his major depression. On mental status examination the veteran presented as a clean and appropriately dressed and groomed individual. There was evidence of psychomotor retardation. The veteran's speech was slow and his thought process was logical and goal-oriented. His emotional tone was flat. His mood was noted to be depressed. The veteran stated that everything felt empty and his examiner observed that his thought content dealt with the symptoms noted above. The veteran said he felt useless and paranoid about other people, especially strangers. He denied any suicidal or homicidal ideas or plans. He was well-oriented to time, place and person. His past memory was intact; although, compromised by ongoing Vietnam intrusive thoughts. While hospitalized the veteran was admitted to a closed general psychiatric unit. He was subsequently transferred to the open PTSD unit. During this hospitalization the veteran received psychiatric medications adjusted to achieve maximum symptomatic relief. It was noted at the time of discharge he had definite clinical evidence of ongoing and severe PTSD symptoms and a secondary major depression. It was also noted that because of the chronic and severe nature of the veteran's chronic and severe PTSD, it is likely he will require future periods of inpatient treatment during times of increased symptoms and/or times of increased stress. The veteran's discharge medications included Paxil. With respect to the veteran's work status it was noted that the veteran has been unable to do any regular work since 1982 and that his ability to seek and maintain any regular employment as well as his ability to function in any usual social situation continued to be severely affected by his chronic and severe PTSD symptoms. It was noted that his specific PTSD symptoms, which severely compromised both his work and social functioning attributable to his PTSD included continuing and severe anxiety, continuing and severe hyperarousability and hypervigilance, continuing and severe nightmares, continuing and severe flashbacks, continuing and severe Vietnam intrusive thoughts, markedly decreased mental concentration and memory and major depression which was noted to be directly secondary and caused by chronic and severe PTSD. The veteran's physician stated that in summary the veteran is obviously very severely disabled for both work and social functioning and has been so for many years. Chronic, severe PTSD and major depression directly secondary to and caused by chronic and severe PTSD were the Axis I diagnoses. The veteran's current GAF was assessed as 40 and his past year GAF also as 40. It was noted that prior to this admission the veteran's GAF was in the 30 to 40 range. In August 1997, the RO sent the veteran a formal application for increased compensation based on individual unemployability, which the RO received from the veteran in September 1997. VA outpatient treatment records show that the veteran attended PTSD group therapy in May and June 1999. VA hospitalized the veteran in August 1998 for an acute crisis of his PTSD. On mental status examination it was noted that the veteran was alert but made poor eye contact. His motor activity was significant for walking with a cane and being slow in his movement. His mood was significant for a feeling of nervousness and depression. The veteran's affect was flat. His speech was not spontaneous and his thought processes were rambling but grossly logical. His cognition was felt to be intact and he denied any attempt to hurt himself or anyone else. The veteran was admitted for acute stabilization of his PTSD symptoms and received a number of consultations with occupational and kinesthetic therapies. The veteran met with a treating physician who confirmed the presence of a relapse of his PTSD and it was noted that a review of his history also suggested the presence of a low grade depression, which was suspicious for dysthymic disorder. During the course of this hospitalization the veteran's mother saw his treating physician and it was noted that she was concerned that his primary problems were physical rather than mental. The physician noted that he attempted to address her concerns. The veteran requested a discharge in late August 1998 and although his physician suspected that he would benefit from additional time being involved in a crisis unit the veteran mentioned that he was feeling more comfortable and ready to return home. At the time of discharge it was noted that he reported to be feeling significantly better and more able to cope with his return home. His condition at discharge was noted to be subjectively less depressed. It was also noted that he had not been employed for the last year and continues to suffer problems of intrusive thoughts and recollections of Vietnam. It was also noted that the veteran was suffering from paralysis of the posterior tibial nerve and that the presence of these health problems and his history of not being employed in the last year suggested that he would remain unemployable. VA subsequently hospitalized the veteran in February 2000 with feelings of depression and concerns about hurting himself. The veteran stated that he had gotten very angry with his family about four days earlier and that this led to an altercation to which the police were contacted. He said that since this altercation he has been out on the street and drinking alcohol. He said he elected to come for help before he injured someone or himself. On mental status examination the veteran's general appearance revealed a somewhat unkempt individual who made poor eye contact. His motor activity was unremarkable. His mood was depressed and affect was blunted. His speech was clear and coherent. Thought process was fairly clear and thought content was goal-directed. Cognition showed full orientation, intact memory, fair insight and poor judgment. There was some suicidal or homicidal ideation but the admitting psychiatrist stated that the veteran contracted against self-harm while hospitalized. During the course of this hospitalization the veteran was further evaluated and treated for PTSD. His treating physician noted that he had reviewed the veteran's medical records and formulated the events that led to his admission. He reported that the veteran had been requested to leave his home by the sheriff's department as his anger led his mother to become very fearful and request police assistance. It was noted that since his admission the veteran had improved and was no longer angry and that at no point was he homicidal, assaultive or suicidal. At discharge it was determined that the veteran would go through a transition program and while in that program would live at the "Hoptel." With respect to the veteran's employability it was noted that the veteran continued to have marked difficulties in social situations, including marked irritability and anger. The physician stated that it was his impression with reasonable certainty that the veteran will remain unemployed. The disability for the veteran's PTSD was increased from 50 percent to 70 percent disabling effective from December 1, 1996, by an RO rating action dated in May 2000. This rating action also granted the veteran entitlement to individual unemployability effective from October 24, 1996. At a hearing before the undersigned member of the Board in September 2001 the veteran described the symptoms related to his PTSD and their frequency. The veteran described his unemployability and stated that he has been unable to work since the 1980's. The veteran also testified to his belief that his grant of a TDIU should be effective from a date in 1992 when he filed a claim for an increased rating for his PTSD. On a VA examination in January 2003 it was noted that the veteran had been on disability since 1984 and has not worked since that date. It was also noted that the veteran stopped working in 1984 because of what he describes as "pain in my joints and arthritis." It was noted that the veteran's last job was as a custodian for the city of New York in 1984. On this examination the veteran stated that he has been experiencing sleep disturbances and depression ever since he returned from Vietnam and presently experiences nightmares maybe 1 or 2 times a week. He also reported difficulty initiating and maintaining sleep. It was noted that upon questioning the veteran reported to most of symptoms of depression which included: Depressed mood off and on, anhedonia, passive suicidal thoughts, poor energy, poor appetite, crying spells and feelings of hopelessness and helplessness. The veteran also reported symptoms of anxiety every time he thinks about Vietnam. He reported experiencing physiological and psychological distress at the exposure and event that reminded him of Vietnam. He also reported to anger outbursts and irritable mood. The veteran also reported experiencing recurrent and distressing dreams about Vietnam and feelings of detachment from others as well as signs of a foreshortened future and restrictive range of affect. It was also noted that the veteran reported persistent symptoms of increased arousal to include hypervigilance and exaggerated startle response. The veteran said that his symptoms have become gradually worse and it was noted for the past six months that the veteran has been on kidney dialysis because of renal failure. It was also noted that this condition had worsened his depression and PTSD symptoms and due to his rheumatoid arthritis he was unable to ambulate and go anywhere. It was noted that the veteran lived with his mother and had few friends and does not go out. He reportedly stays home most of the time, watches TV and has no girl friend. It was noted that his mother reported that the veteran usually isolates himself. On further questioning the veteran denied any symptoms of mania, hypomania, or psychosis. The veteran's significant medical history included chronic rheumatoid arthritis, hypertension and kidney failure requiring dialysis three times a week. On mental status examination the veteran was noted to be casually dressed and to be alert and oriented. He was wearing eye glasses and walked with crutches. It was obvious that he was in pain and had difficulty ambulating. His speech was well-articulated and logical. There was no evidence of any abnormal movements. He maintained poor eye contact and his personal hygiene was characterized as less than adequate. He was alert and oriented to time, place and person. His cognition was felt clinically to be average. His dominant mood during his examination was depressed and his affect was sad and constricted. He denied suicidal or homicidal thoughts and his thought processes were logical and goal-directed. He did not appear psychotic and there was no evidence of delusional thoughts. He denied auditory or visual hallucinations. His insight, judgment and impulse control were felt to be fair. There was no evidence of obsessive or ritualistic behavior. It was noted that the veteran was currently unemployed and on disability since 1984. Chronic PTSD and recurrent moderate to severe major depressive disorders were the Axis I diagnoses. The veteran's Global Assessment of Functioning was assessed as 50 to 55. The examiner explained that the veteran's symptoms were believed to be moderate in nature. He noted that the veteran had few friends and that he personally believed that the veteran's chronic medical conditions of degenerative joint disease and chronic renal failure requiring dialysis had made his PTSD and symptoms of depression worse over the past six months. Analysis I. Increased Disability Rating for PTSD Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. §§ 4.2, 4.1, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 2 Vet. App. 55, 58 (1994). When there is a question of which of two evaluations will be assigned, 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. The veteran is seeking an increased disability rating in excess of 50 percent for PTSD, for the period from February 17, 1995, to October 23, 1996, and in excess of 70 percent for the period from December 1, 1996. The Board observes that, during the pendency of this appeal, VA issued revised regulations, which became effective November 7, 1996, amending a portion of the rating schedule dealing with mental disorders. The United States Court of Appeals for Veterans Claims (Court) has held that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Board notes further, however, that where compensation is awarded or increased pursuant to a liberalizing rule approved by the Secretary of VA or his direction, the effective date on that increase shall not be earlier than the effective date of such law or regulations. 38 U.S.C.A. § 5110(g) (West 2002); DeSousa v, Gober, 10 Vet. App. 461, 467 (1997). Therefore, any increase in the disability rating made pursuant to the amended criteria of Diagnostic Code 9411, will be effective as of November 7, 1996. See VAOPGPREC 3-2000 (April 10, 2000). Under the criteria applicable prior to November 7, 1996, a 100 percent evaluation for PTSD was warranted for the existence of one of the following conditions: The attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; there were total incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities resulting in profound retreat from mature behavior; or the veteran was demonstrably unable to obtain or retain employment. Hence, the rating criteria set forth three independent bases for granting 100 percent evaluation, pursuant to Diagnostic Code 9411. See Johnson v. Brown, 7 Vet. App. 95. Also under the old criteria a 70 percent evaluation for PTSD was warranted where the ability to establish or maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was a severe impairment in the ability to obtain or retain employment. A 50 percent evaluation for PTSD was warranted where the ability to establish or maintain effective or favorable relationships with people was considerably impaired and by reason of the psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. 38 C.F.R. Part 4, Diagnostic Code 9411. Under the new rating schedule, effective November 7, 1996, a 100 percent evaluation for PTSD is warranted for total occupational and social impairment. A total occupational and social impairment includes symptoms such as the following: 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. Also, under the new criteria, a 70 percent rating is available for 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 ideations; 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 work-like setting); inability to establish and maintain effective relationships. A 50 percent rating is available for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotype 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 mood and motivation; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2002). In view the evidence as described above, the Board finds that for the period February 17, 1995, to October 30, 1995, and for the period beginning October 31, 1995, the symptomatology associated with the veteran's PTSD more nearly approximate the criteria for a 50 percent rating, and for a 70 percent rating respectively, under both the old and new rating criteria of Diagnostic Code 9411. Essentially, the Board finds that the veteran meets the scheduler criteria for a 70 percent rating for PTSD, at least for the period from October 31, 1995, which is approximately one year earlier than that currently established by the RO. However, the evidence of record does not establish that the criteria for a disability rating in excess of 70 percent for this disorder, thereafter, is shown. In evaluating the medical evidence submitted since February 1995, and prior to December 1996, the Board notes that on VA hospitalization beginning in February 1995 the veteran was assigned a current GAF of 45 and a GAF for the past year of 50. The GAF is a scale reflecting the psychological, social and occupational function on a hypothetical continuum of mental illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). According to the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th edition, (DSM-IV), a GAF score of 41 to 50 reflects serious symptoms or any serious impairment in social, occupational, or school functioning. The Board finds no reason to disagree with this assessment as it is in accordance with the evidence in entirety for the period in question. During this period, there is no evidence of suicidal ideation, obsessional rituals interfering with routine activities, speech intermittently illogical, obscure or irrelevant, spatial disorientation or neglect of personal hygiene. Although some depression was noted during this period the evidence does not show near continuous panic or depression affecting the veteran's ability to function independently, appropriately and effectively. In regard to difficulty in the veteran's ability to establish or maintain effective or favorable relationships with people, the Board notes that the veteran's hospitalization beginning in February 1995 was precipitated by the veteran's feelings of increased isolation, anger and helplessness as well as violent urges against a member of his family. However, despite the difficulties noted, psychoneurotic symptoms displayed during this period of hospitalization were not of such severity and persistence that the veteran was severely impaired in the ability to obtain or retain employment. Here, the Board finds significant that at hospital discharge, in March 1995, the veteran was an active participant in all phases of his treatment program and was noted to have what was characterized as a "good" reduction in his symptoms at hospital discharge. Further, he required no continuing medication for symptoms associated with his service-connected psychiatric disorder. As opposed to the GAF score of 45 noted on his VA hospitalization beginning in February 1995, when the veteran was hospitalized later that year, beginning in October 1995, the veteran's GAF was assessed as 40. On this hospitalization, there was evidence of anxiety in his motor activity and his thought content was focused on his PTSD symptoms. In addition to the anxiety and irritability noted during his prior hospitalization, the veteran also manifested a depressed mood. During the course of his hospitalization, the veteran participated in his treatment with staff and other patients but this participation was achieved only as a result of the nature of the inpatient program and at discharge his PTSD was not noted to have significantly improved. Furthermore his medications included Prozac. With respect to his industrial and social impairment, a VA physician expressed his opinion that the veteran's ability to seek and maintain employment as well as his ability to adapt in normal social situations was severely affected by his PTSD symptoms, which were noted to be clinically stable. According to DSM-IV, a GAF score of 40 reflects major impairment in areas such as work and family relations. His PTSD was assessed as chronic and severe on his VA hospitalization in late 1995 and noted to result in limiting his ability to work and adapt in normal social situations. The Board finds no basis for not accepting this assessment of the severity of his PTSD. Therefore, the Board determines that an increased disability rating of 70 percent for the veteran's PTSD is warranted, at least for the period from October 31, 1995, but no earlier, under the rating criteria in effect prior to November 7, 1996, and thereafter. The Board has considered whether a disability rating in excess of 70 percent, is warranted for this disorder at any time subsequent to October 31, 1995, and finds that the evidence does not show that the veteran meets the criteria for a 100 percent schedular rating under either the old or new criteria of Diagnostic Code 9411. In this context, the most recent clinical evidence comprised of the veteran's VA hospitalization summary reports in October 1996, August 1998 and February 2000, as well as reports of VA examinations in March 1997, and January 2003 failed to show symptoms that typify a 100 percent disability under both the old and new rating criteria at Diagnostic Code 9411. For instance, there is no objective evidence of gross impairment in thought process or communication, persistent delusions or hallucinations, 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. When viewed as a whole the symptoms of the veteran's PTSD produce no more than severe social and industrial impairment. Here, the Board finds significant that, while the veteran has been unemployed for a number of years, the primary cause of his initial unemployment was, as indicated on VA examination in January 2003, problems associated with his nonservice- connected arthritic condition. This disorder, as well as problems related to chronic renal failure, has resulted in psychiatric symptoms of depression diagnosed as major depressive disorder, independent of his PTSD. In any event, on this examination report, the veteran's GAF score was 55, and the examiner characterized his psychiatric symptoms as only moderate. Accordingly, the Board finds that manifestations of the veteran's service-connected PTSD, while significant are currently not productive of more than severe social and industrial impairment. The signs and manifestations of the veteran's PTSD do not produce total occupational and social impairment; nor are the symptoms, alone, totally incapacitating. Thus, neither the old nor the new criteria for a 100 percent schedular have been satisfied. Nor is a 100 percent schedular rating pursuant to the provisions or 38 C.F.R. § 4.16(c), which were in effect prior to November 7, 1996, appropriate in this case, because PTSD is not the veteran's only compensable service-connected disability. II. Earlier Effective Date The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, which ever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, under circumstances where 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. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110(b)(2). See 38 C.F.R. § 3.400(o)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by the VA. 38 C.F.R. § 3.1(r) (2002). A claim is 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); 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides as follows: (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . may be considered an informal claim. Such informal claim must identify the benefit sought. Id. Pertinent regulations also provide that a total disability rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability, provided that the person has one service-connected disability ratable at 60 percent or more; or as a result of two or more service-connected disabilities, provided that the person has at least one disability ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. The existence or degree of non-service connected disabilities will be disregarded where the above-stated percentages are met and in the judgment of the rating agency such service- connected disabilities render the veteran unemployable. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2001). For a veteran to prevail on a claim based on individual unemployability, it is necessary that the record reflects some factor which takes the veteran's case outside the norm of other such veterans. See 38 C.F.R. §§ 4.1, 4.15. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating is, in itself, a recognition that the impairment makes it difficult to obtain and keep employment. Therefore, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, supra. In this case, the record discloses that in a May 2000 rating decision, the RO awarded the veteran a TDIU rating pursuant to 38 C.F.R. § 4.16(a), and assigned an effective date of October 24, 1996. The RO noted that the veteran met the percentage requirements for a TDIU rating and determined that the veteran was unable to secure or follow a substantially gainfully occupation since his period of hospitalization in October 1996. The Board notes that, as reflected in the analysis above, the disability rating for the veteran's PTSD as been increased to 70 percent for the period from October 31, 1995. However, consistent with that analysis, the Board observes that prior to
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