judge_norm: RENÉE M PELLETIER

text:
Citation Nr: 0111000
Decision Date: 04/16/01    Archive Date: 04/23/01

DOCKET NO.  00-11 349	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUE

Entitlement to an earlier effective date for the payment of
additional compensation by reason of a dependent spouse.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

Michael A. Holincheck, Counsel

INTRODUCTION

The veteran served on active duty from February 1968 to
January 1973.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.

2.  In November 1995, service connection was granted for a
seizure disorder and a 10 percent rating was assigned,
effective in January 1995.  The veteran was sent a letter,
dated in November 1995, that included VA Form 21-8764 as an
enclosure.  VA Form 21-8674 provided advice that veterans
rated at 30 percent or more may be entitled to receive
additional compensation for a spouse.

3.  The veteran's disability rating was increased to 30
percent in September 1997, effective as of January 1995.  He
was notified of this action in September 1997 and advised to
submit a VA Form 686c to obtain additional compensation for
dependents.  VA Form 21-8764 was also enclosed.  The veteran
was advised to submit the required evidence within one year
or payments could not be paid prior to the receipt of the
evidence.

4.  The veteran submitted a statement requesting the payment
of additional compensation for his spouse in December 1998.
He also submitted an incomplete VA Form 21-686c, Declaration
of Status of Dependents.

5.  The RO contacted the veteran in March 1999 and requested
that a completed VA Form 21-686c be submitted.  The veteran
submitted a completed form, with a copy of his marriage
license; and a copy of his spouse's divorce decree, that was
received at the RO in March 1999.

6.  The earliest claim of record, in which the veteran sought
payment of benefits by reason of a dependent spouse, with the
appropriate evidence as requested by VA, was the form
submitted in December 1998.

CONCLUSION OF LAW

The criteria for entitlement to an earlier effective date for
the payment of benefits by reason of dependent spouse are not
met.  38 U.S.C.A. �� 1115, 5110, 5111 (West 1991), (Veterans
Claims Assistance Act (VCAA), Pub. L. No. 106-475, � 4, 114
Stat. 2096, 2098-99 (2000) (to be codified at 38 U.S.C.
� 5107); 38 C.F.R. �� 3.31, 3.109, 3.151, 3.155, 3.400, 3.401
(2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Background

The veteran was granted service connection for a seizure
disorder in November 1995.  He was assigned a 10 percent
disability rating that was made effective as of the date of
the claim, January 1995.  The veteran was also notified of
the amounts, and effective dates of payment, for his
disability compensation in a letter dated in November 1995.
The letter included a copy of VA Form 21-8764 (Feb 1990) and
the veteran was encouraged to read the form as it contained
important information about rights to receive his disability
benefits.  The version of VA Form 21-8764 in effect at that
time advises that, inter alia, individuals having a 30
percent or more service-connected condition may be entitled
to additional compensation for a spouse.

The veteran disputed his 10 percent disability rating and
continued to seek a higher rating.  The veteran's disability
rating was increased to 40 percent in September 1997.  The
rating was made effective as of January 1995.  He was again
sent a letter from the RO, in September 1997, that informed
him of the monthly rate of his payments and their effective
dates.  He was again provided a copy of VA Form 21-8764.
Finally, the veteran was told to "complete and return the
enclosed VA Form 21-686c, Declaration of Status of
Dependents."  The veteran was informed that it was essential
that he provide complete information.  He was also informed
that he needed to submit the form within one year otherwise
payments would not be payable for any period before the date
the RO received the information.

There is no evidence in the claims file that the VA Form 21-
686c was submitted within the one-year period or that
information similar to that requested was provided in any
other format.

The veteran's representative submitted a VA Form 21-4138,
Statement in Support of Claim, in June 1998.  The form
reflected a change of address for the veteran.

The veteran's seizure disorder disability rating was
increased to 60 percent in December 1998.  The rating was
made effective as of January 1995.  The claims file contains
a letter of notification regarding the payment rates and
effective dates dated in December 1998.  The letter did not
make any reference to an enclosed VA Form 21-686c.  However,
VA Form 21-8764 was again included as an enclosure, which did
contain the same notice of possible entitlement to additional
compensation for a spouse.

The veteran then submitted a request for payments for his
spouse that was received in December 1998.  The veteran
alleged that such payments should be retroactive back to
January 1995.  He also submitted a copy of VA Form 21-686c,
that contained only some of the required information to
establish his marital status.

The RO contacted the veteran in March 1999 and informed him
that the submitted VA Form 21-686c was incomplete.  The RO
provided guidance on the information required to complete the
form as well as evidence of his spouse's divorce and evidence
of their marriage.

The veteran responded, approximately two weeks later, with a
completed VA Form 21-686c.  He also included a copy of the
divorce decree for his spouse and a copy of their marriage
certificate reflecting their marriage in June 1994.

The veteran was notified of the additional payment for his
spouse in June 1999.  He was informed of the increased amount
and the effective date of January 1, 1999.  The veteran
submitted a statement in June 1999 and disputed the effective
date.  He contended that he had been married during the
entire period of his pending claim.  Therefore, the spousal
award should be retroactive back to February 1, 1995, versus
January 1, 1999.

The RO contacted the veteran in July 1999 and explained that
the appellant was informed of the requirement to submit a VA
Form 21-686c in September 1997.  He was also informed that he
had had one year from that date to submit the necessary form.
However, the form was not received until December 1998.  The
veteran was further informed that the earliest date that
benefits were payable for his spouse was January 1, 1999.

The veteran responded in July 1999 that he had not been sent
a VA Form 21-686c in September 1997.  He said that he and his
wife had always completed any forms sent to them and returned
them to the RO.

The veteran submitted additional lay statements, generally in
support of his claim for a higher rating, or later, request
for reconsideration of a September 1999 Board decision.  The
veteran maintained that he did not receive the appropriate
form until December 1998 and that he returned it as soon as
he could.  He contended the payments of benefits on behalf of
his spouse should be retroactive to February 1995.  The
veteran contended in his substantive appeal, received in
April 2000, that he was not notified that there was
additional compensation available for dependents until he was
awarded his 60 percent disability rating in December 1998.

Analysis

At the outset, the Board notes that the standard for
processing claims for VA benefits was changed, effective
November 9, 2000, with the signing into law of the Veterans
Claims Assistance Act of 2000 (VCAA) (to be codified at
Chapter 51 of United States Code), Public Law 106-475.  The
VCAA removed the requirement for a claimant to submit a well-
grounded claim.  The VCAA also passed into law the VA's duty
to assist claimants in the development of their claims.  The
provisions of the VCAA are applicable to this case.  The VCAA
will be discussed in further detail later in this decision.

A claim is either a formal or an informal written
communication "requesting a determination of entitlement or
evidencing a belief in entitlement, to a benefit."  38 C.F.R.
� 3.1(p) (2000).  A specific claim in the form prescribed by
the Secretary must be filed in order for benefits to be paid
to any individual under the laws administered by the VA.
38 U.S.C.A. � 5101(a) (West 1991); 38 C.F.R. � 3.151(a)
(2000).  Any communication or action, indicating an intent to
apply for one or more benefits under the laws administered by
the Department of Veterans Affairs, from a claimant, his
representative, a Member of Congress, or some person acting
as next friend of a claimant who is not sui juris may be
considered an informal claim.  Such informal claim must
identify the benefit sought.  38 C.F.R. � 3.155(a) (2000);
Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (38
U.S.C.A. � 5101(a) is a clause of general applicability and
mandates that a claim must be filed in order for any type of
benefit to accrue or be paid.)

If a claimant's application is incomplete, the claimant will
be notified of the evidence necessary to complete the
application.  If the evidence is not received within one year
from the date of such notification, compensation may not be
paid by reason of that application.  These provisions are
applicable to original applications, formal or informal, and
to applications for increased benefits by reason of the
existence of a dependent.  38 C.F.R. � 3.109(a)(1), (2)
(2000).

Veteran's, who are entitled to compensation for service
connected disabilities rated at 30 percent and above, are
entitled to additional compensation for dependents, including
a spouse.  38 U.S.C.A. � 1115 (West 1991).  Generally,
effective dates are based on the date of receipt of the claim
for benefits.  38 C.F.R. � 3.400 (2000).

Awards of increased compensation payable for a dependent will
be effective the latest of the following dates: (1) the date
of the veteran's marriage, if the evidence of the marriage is
received within one year of the event; (2) the date
dependency arises; (3) effective date of the qualifying
disability rating, provided evidence of dependency is
received within 1 year of notification of such rating action;
or, (4) date of commencement of the veteran's award.  38
U.S.C.A. � 5110(f), (n) (West 1991); 38 C.F.R. � 3.401(b)(1),
(2) (2000).

Regardless of VA regulations concerning effective dates of
awards, payment of monetary benefits based on original,
reopened, or increased awards of compensation may not be made
for any period prior to the first day of the calendar month
following the month in which the award became effective.  For
the purposes of this section the term "increased award" means
an award which is increased because of an added dependent.
38 U.S.C.A. � 5111 (West 1991); 38 C.F.R. � 3.31 (2000).

First, the Board acknowledges that the veteran indicated that
he was married at the time he submitted his original
application for benefits in January 1995.  Further, a number
of the VA and private treatment records reflect references to
the veteran's "wife" in their discussions.  However, the
mere noting of his marital status is not the same as making a
claim for benefits based on that status.

The veteran was given notice of the possible entitlement to
additional compensation for his spouse if he was rated as 30
percent or more disabled when he was provided with VA Form
21-8764 in November 1995.  He was provided this notice again
in September 1997.  In addition, he was provided with the
specific form required to establish entitlement to benefits
for his spouse when VA Form 21-686c was forwarded to him in
September 1997.  He was given further explicit instructions
that if the information was not provided within one year, no
benefits would be payable for any period before the date the
RO received the information.  The veteran failed to provide
the necessary information within one year.

The veteran submitted a statement and an incomplete VA Form
21-686c in December 1998.  The RO fulfilled its duty to
assist by notifying the veteran that his application for
additional compensation for his spouse was incomplete.  The
veteran submitted the necessary information to complete his
application in March 1999.  The RO then granted the award of
the additional compensation with an effective date of January
1, 1999, based on the December 1998 application, or claim,
for benefits.  This date represented the first day of the
month after the award became effective.

The veteran alleges that he was not provided with VA Form 21-
686c in September 1997 and that he and his wife also
completed and returned to VA any forms that were sent to
them.  He also stated in his substantive appeal that he had
not ever been made aware that he could receive additional
payments for his spouse until he was notified in December
1998.

The Board notes that, "[t]here is a presumption of
regularity that attaches to actions of public officials."
Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v.
Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical
Foundation, 272 U.S. 1, 14-15 (1926).  The United States
Court of Appeals for Veterans Claims (Court), has also
"applied the presumption of regularity to all manner of VA
processes and procedures."  Woods, 14 Vet. App. at 220.  See
Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying
presumption as to whether RO sent to claimant the application
form for dependency and indemnity compensation); see also
Butler v. Principi, No. 00-7084, (Fed. Cir. Mar. 31, 2001)
(the presumption of regularity, presumed that the Department
had properly discharged its responsibilities by attaching a
copy of the notice of appellate rights to the notification
letter).

The Court has also stated that "[i]t is well settled that
'clear evidence to the contrary' is required to rebut the
presumption of regularity, i.e. the presumption that notice
was sent in the regular course of government action."
Schoolman, 12 Vet. App. at 310.  (citations omitted).  The
Court specifically held that a statement such as the one of
this appellant, standing alone, is not sufficient to rebut
the presumption of regularity in RO operations.  The
appellant's contention that the VA Form 21-686c was not
provided, standing alone, is insufficient evidence to rebut
the presumption of regularity.  The September 1997 letter to
the veteran specifically mentions the VA form in the
narrative and provides the advice and the proviso to complete
it with the necessary information and submit it within one
year.

The veteran does not contend that he did not receive the
September 1997 letter in question, rather he maintains that
he did not receive the enclosed VA Form 21-686c.  In Butler
v. Principi, 2001 U.S. App. LEXIS 5270, March 30, 2001, the
Court of Appeals for the Federal Circuit held that: "The
'presumption of regularity' supports official acts of public
officers.  In the absence of clear evidence to the contrary,
the doctrine presumes that public officers have properly
discharged their official duties. United States v. Chem.
Found., Inc., 272 U.S. 1, 14-15, 71 L. Ed. 131, 47 S. Ct. 1
(1926); In re Longardner & Assocs., Inc., 855 F.2d 455, 459
(7th Cir. 1988).  The doctrine thus allows courts to presume
that what appears regular is regular, the burden shifting to
the attacker to show the contrary. United States v. Roses,
Inc., 706 F.2d 1563, 1567 (Fed. Cir. 1983)."  Thus, applying
the holding in Butler, unless there is proof to the contrary,
it can be presumed that VA officials included VA Form 21-686c
in their letter to the veteran in the regular course of
business.

In this case the veteran has not offered clear evidence to
the contrary such as would rebut the presumption of
regularity.  Statements made by the veteran are not the type
of clear evidence to the contrary which would be sufficient
to rebut the presumption of regularity.  The handwritten
statement and VA Form 21-686c, both received in December
1998, represent the first evidence of an intent by the
veteran to file a claim for additional compensation for his
spouse.

In accordance with the relevant statute and regulation, the
correct effective date is the date VA received a claim for
additional compensation for the veteran's spouse as this
constituted the first official notice of the dependent's
existence and the appellant's desire to obtain additional
benefits because of the spouse's status.  The appropriate
notice and form were received in December 1998 and the
necessary information to complete the application was
received within one year of the claim.  Therefore, January 1,
1999, represents the earliest date that benefits can be
payable.  The veteran has not presented any evidence to
establish an earlier date under 38 U.S.C.A. � 5110 or
38 C.F.R. � 3.401.

Accordingly, the Board finds that the preponderance of the
evidence is against entitlement to an effective date earlier
than January 1, 1999, for the payment of additional
disability compensation benefits for the veteran's spouse.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits.
Therefore, the Board is unable to identify a reasonable basis
for granting an earlier effective date.  Gilbert v.
Derwinski, 1 Vet. App. 49, 57-58 (1990); VCAA, � 4, (to be
codified as amended at 38 U.S.C. � 5107(b)); 38 C.F.R.
� 3.102 (2000).

In regard to the VCAA, the Board notes that Karnas v.
Derwinski, 1 Vet. App. 308, 312-13 (1999), requires
consideration of whether a previous version, or the change in
law, is more favorable to the veteran.  The VCAA eliminates
the requirement to submit a well-grounded claim, and
represents a codification of the duty to assist and provide
notification to a claimant that is more favorable to the
veteran.

In order for the veteran to meet the necessary criteria for
an earlier effective date, he must show that he submitted the
required evidence at a date earlier than December 1998.  The
veteran has been provided notice of the evidence necessary to
substantiate his claim for an earlier effective date.  He
does not contend that he has satisfied that requirement.
Rather, he argues that he was not informed of the requirement
to submit evidence to satisfy the necessary criteria prior to
receiving notice from December 1998.  As discussed in the
above paragraphs, the veteran was provided with notice of the
requirement but failed to respond in the time required.

The Board is confident that the veteran has been informed of
all the requirements necessary to substantiate his claim as
contemplated under the VCAA.  He, and his representative,
have been provided notice of the June 1999 letter
establishing the effective date, the July 1999 letter
explaining the rationale for the decision, and the March 2000
statement of the case providing the reasons and bases for the
denial.

Upon review of the claims file, the Board is satisfied that
the veteran was provided full assistance in the development
of his claim and notice of VA actions as contemplated under
the VCAA.  There is no contention of any outstanding evidence
that would support the claim and, because of the issue
involved, there is no requirement for a medical examination.
Accordingly, there is no basis to remand the case to the RO.
The Board has also considered possible prejudice to the
veteran under Bernard v. Brown, 4 Vet. App. 384, 394 (1993),
by the Board's review under the VCAA in the first instance.
The Board finds that there is no prejudice to the veteran by
the Board's actions.  As noted before, the RO provided the
veteran with essentially the development required by the
VCAA.

ORDER

Entitlement to an earlier effective date for the payment of
additional compensation by reason of a dependent spouse is
denied.

	REN�E M. PELLETIER
	Member, Board of Veterans' Appeals


series: legacy

judge_norm: JEFF MARTIN

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
Citation Nr: 0112000
Decision Date: 04/26/01    Archive Date: 05/01/01

DOCKET NO.  00-14 091	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida

THE ISSUE

Entitlement to service connection for residuals of pneumonia.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

R. Acosta, Counsel

INTRODUCTION

The veteran served on active duty from October 1942 to
January 1946.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1999 rating decision of the
Department of Veterans Affairs (VA) St. Petersburg, Florida,
Regional Office (RO), which denied a claim for service
connection for residuals of pneumonia, on the basis of the
claim not being well grounded.

REMAND

During the pendency of this appeal, the President signed the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (to be codified as amended at
38 U.S.C. �� 5102, 5103, 5103A, and 5107).  In pertinent
parts, this Act eliminated the concept of a well-grounded
claim, amplified VA's duty to assist a claimant, and mandated
certain additional notice duties.  Id.

As noted earlier, this case was denied on the basis of the
claim not being well grounded.  The RO thus did not develop
the record further.  Therefore, because of the change in the
law brought about by the VCAA, a remand in this case is
required for full compliance with the notice and duty to
assist provisions contained in the new law.  See VCAA, �� 3-
4, 114 Stat. 2096, 2096-2099 (2000) (to be codified as
amended at 38 U.S.C. �� 5102, 5103, 5103A, and 5107).  In
addition, because the RO has not yet considered whether any
additional notification or development action (such as
attempting to secure copies of records allegedly reflecting
private medical treatment received at Rockford Memorial
Hospital in Rockford, Illinois, in 1946, 1947, and 1951) is
required under the VCAA, it would be potentially prejudicial
to the veteran if the Board were to proceed to issue a
decision at this time.  See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)).

Additionally, it is noted that, on VA medical examination in
August 1999, a diagnosis of "status post pneumonia x3 in the
remote past" was rendered, and the examining physician
indicated that it was "[at least] as likely as not that the
1997 impression [of linear scarring at the right base] is a
residual of pneumonia."  It is not clear whether a chronic
pulmonary disease or disability is currently manifested, and
if it is, whether it is at least as likely as not that such
current disability is causally related to the treatment that
the service medical records show that the veteran received
during service for pneumonia.  Thus, on remand, the RO should
also ask the VA physician who examined the veteran in August
1999 to provide an answer to these questions.

Accordingly, this case is REMANDED for the following:

1.  The RO should take appropriate action
to attempt to secure copies of any
records showing medical treatment
received by the veteran at Rockford
Memorial Hospital in Rockford, Illinois,
in 1946, 1947, and 1951.  An
Authorization and Consent to Release
Information to the Department of Veterans
Affairs (VA Form 21-4142) signed by the
veteran in February 2000 for this
particular purpose is already part of the
file.

2.  The RO should then ask the VA
physician who examined the veteran in
August 1999 to render a legible addendum
to his August 1999 medical examination
report answering, to the extent possible,
the following questions:  (a) does the
veteran currently suffer from chronic
residuals of pneumonia; and, if the
answer to this first question is in the
affirmative, (b) is it at least as likely
as not that the current chronic residuals
of pneumonia are causally related to
service?

If the VA physician is of the opinion
that re-examination of the veteran is
necessary, he should state so, and the RO
should take appropriate action to have
this additional development accomplished.

Also, if that VA physician is, for any
reason, unavailable, the RO should then
refer the case to another VA physician
for any necessary action/development.

3.  The RO should ensure that the above
requested private medical records, if
located, and the above requested
addendum, are associated with the file,
and that all notification and further
development action required by the VCAA
is completed.  In particular, the RO
should ensure that the new notification
requirements and development procedures
contained in sections 3 and 4 of the Act
are fully satisfied.

4.  The RO should then re-adjudicate the
veteran's claim for service connection
for residuals of pneumonia.  If, upon re-
adjudication, the benefit sought on
appeal remains denied, the veteran should
be provided with an appropriate
supplemental statement of the case and
given the opportunity to respond.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate
outcome of this case.  The veteran need take no action unless
he is notified, but he has the right to submit additional
evidence and argument on the matter that the Board has
remanded to the RO.  Kutscherousky v. West, 12 Vet. App. 369
(1999).

This case must be afforded expeditious treatment by the RO.
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 The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, � 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. � 5101 (West Supp. 2000) (Historical and
Statutory Notes).  In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.

	JEFF MARTIN
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims.  This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal.  38 C.F.R. � 20.1100(b) (2000).


judge_norm: DEBORAH W SINGLETON

disposition: granted

condition: eye

benefit: tdiu

text:
Citation Nr: 0113000
Decision Date: 05/08/01    Archive Date: 05/15/01

DOCKET NO.  99-24 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas

THE ISSUES

1.  Entitlement to an effective date earlier than September
29, 1997, for the assignment of a 70 percent evaluation for
post-traumatic stress disorder (PTSD).

2.  Entitlement to an effective date earlier than September
29, 1997, for the award of a total disability rating based
upon individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

L. Spear Ethridge, Counsel

INTRODUCTION

The veteran had active duty from September 1965 to February
1972.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1999 decision by the
Houston, Texas Regional Office (RO) of the Department of
Veterans Affairs (VA).  The procedural history pertinent to
this introduction is that in the February 1999 rating
decision, the RO increased the veteran's service-connected
PTSD rating from 50 percent to 70 percent disabling,
effective September 29, 1997.  In the February 1999 rating
decision, the RO also granted the veteran a total disability
rating based upon individual unemployability (TDIU), and the
effective date was September 29, 1997 (albeit that the RO
interchanged September 29, 1997 and September 27, 1997 when
discussing the effective date for TDIU).

The United States Court of Appeals for Veterans Claims
(hereinafter, "the Court")), has held that on a claim for an
original or an increased rating, the appellant will generally
be presumed to be seeking the maximum benefit allowed by law
or regulations, and it follows that such a claim remains in
controversy where less than the maximum benefit available is
awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  In this
case, however, the veteran submitted a statement in July
1999 wherein he stated that he was satisfied with the
increased evaluation for PTSD, and that he wished to drop the
appeal for that issue.  Accordingly, the issue of entitlement
to an evaluation in excess of 70 percent for PTSD is not
before the Board at this time.  See 38 C.F.R.
� 20.204 (2000).

In the July 1999 statement, the veteran indicated that he was
"not satisfied with the effective date" and wished to file
a notice of disagreement for an earlier effective date.  The
Board broadly construes the July 1999 notice of disagreement
as contesting the September 29, 1997 effective date assigned
for both the PTSD disability rating and the total rating
based on individual unemployability.  See Collaro v. West,
136 F.3d 1304 (Fed.Cir. 1998); Buckley v. West, 12 Vet. App.
76, 83-84 (1998).  However, the Board notes that the RO
furnished a statement of the case, issued in September 1999,
relevant only to the effective date claim for an increased
evaluation for PTSD.

As it regards TDIU, the Board determines that when the RO
provided the veteran with the regulations pertinent for an
earlier effective date for an increased rating for PTSD, it
also provided him with the relevant notice regarding the
claim for an earlier effective date for an award for TDIU.
The Court has ruled that a claim for TDIU is in essence a
claim for an increase.  See Norris v. West, 12 Vet. App. 413,
420 (1999).  Therefore, the Board herein determines that the
veteran's claim for entitlement to an earlier effective date
for his 70 percent schedular evaluation also encompasses his
desire for an earlier effective date for his award of TDIU.
Indeed, after the issuance of the September 1999 statement of
the case, the veteran thereafter perfected this appeal when
he submitted VA Form 9, Appeal to the Board in October 1999.
His representative later provided argument on the issue of an
earlier effective date for TDIU when in a November 1999
statement, the representative "respectfully requested that
compassionate consideration be given to a total evaluation
from August 2, 1994."

Accordingly, the Board has jurisdiction of both issues of an
earlier effective listed on the title page of this decision.

FINDINGS OF FACT

1.  In a November 1989 rating decision, service connection
was granted for PTSD, and a 10 percent rating was assigned.
The veteran did not appeal this rating action.

2.  In a statement received on August 2, 1994, the veteran
requested an increased rating in his PTSD evaluation.

3.  In a February 8, 1995 rating decision, the RO granted an
increased rating, from 10 to 30 percent for PTSD.  On
February 16, 1995, the veteran was notified of the grant of
30 percent for PTSD.  On February 7, 1996, the veteran
submitted a notice of disagreement with the February 1995
rating action, and on March 8, 1996, the RO issued a
statement of the case regarding the 30 percent rating
assigned for PTSD.

4.  On May 14, 1996, the RO issued a supplemental statement
of the case, noted that a VA Form 9, Appeal to the Board had
not been filed by the veteran, and informed the veteran that
his "appellate rights" would expire on March 8, 1997.  This
notification to the veteran extended his time period for
filing an appeal to the Board until March 8, 1997.

5.  On September 25, 1996, the Montgomery RO received the
veteran's VA Form 9, Appeal to the Board, and his request to
transfer his file from the Houston RO to the Montgomery RO.
On October 7, 1998, the Houston RO also applied a date stamp
on that same VA Form 9, Appeal to the Board.

6.  Since the RO expressly informed the veteran that he had
until March 8, 1997 to file an appeal on the matter of an
increased rating, the veteran's claim for an increased
evaluation for PTSD was perfected on September 25, 1996, when
he submitted his VA Form 9 to the Montgomery RO.

7.  On October 24, 1996, the veteran's representative
submitted a statement as an "informal claim" under the
provisions of 38 C.F.R. � 3.155(a), with the express intent
to establish an effective date for entitlement to an
increased rating for the veteran's service-connected
disability.

8.  By rating decision of March 1997, the Houston RO awarded
a temporary total disability evaluation based on a period of
hospitalization (from August 6, 1996 to September 1, 1996)
for PTSD pursuant to 38 C.F.R. � 4.29; and increased the
evaluation, from 30 to 50 percent, effective from September
1, 1996, the day following the termination of the temporary
total rating.

9.  In a September 29, 1997 statement, the veteran indicated
that he had been hospitalized for his PTSD.  In a November
1997 rating decision, the RO awarded a temporary total
disability evaluation based on a period of hospitalization
(from September 4, 1996 to October 18, 1996); and resumed and
continued the 50 percent disability evaluation effective
November 1, 1996.

10.  In a February 11, 1999 rating decision, the RO granted
an increased rating, from 50 to 70 percent, for the veteran's
PTSD, effective September 29, 1997.

11.  In a September 29, 1997 statement, the veteran indicated
that he was unemployable; and, on that date, he submitted VA
Form 21-8940, Veteran's Application For Increased
Compensation Based on Unemployability.

12.  In a February 1999 rating decision the RO granted TDIU,
effective September 29, 1997.

13.  The evidence of record demonstrates that although the
date of the veteran's claim for increased rating is August 2,
1994, it is not factually ascertainable that an increase in
severity of the PTSD had occurred until a later date of April
19, 1996, the date of his retirement.

14.  The formal date of the veteran's claim for TDIU is
September 29, 1997; and October 24, 1996, the date of an
informal claim, is the date of "receipt of the claim."

15.  It is factually ascertainable that TDIU occurred within
the one-year period preceding the date of receipt of the
claim; and April 19, 1996, the date of the veteran's
retirement is the earliest date as of which it is
ascertainable that he was totally disabled due to his PTSD
disability.

CONCLUSIONS OF LAW

1.  The criteria for an effective date of April 19, 1996, for
the assignment of a 70 percent evaluation for post-traumatic
stress disorder have been met.  38 U.S.C.A. � 5110 (West
1991); 38 C.F.R. �� 3.1(p), 3.151, 3.155, 3.156, 3.157,
3.160, 3.400 (2000).

2.  The criteria for an effective date of April 19, 1996, for
the award of total disability rating based on individual
unemployability have been met.  38 U.S.C.A. �  5110(b)(2)
(West 1991); 38 C.F.R. �� 3.155, 3.160, 3.400(o)(2) (2000).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran contends that an increased rating for his
service-connected PTSD, from 50 to 70 percent, should be made
effective August 2, 1994, the date that he submitted his
original application for an increased rating.  He necessarily
and essentially also contends that he was totally
unemployable prior to September 29, 1997, the effective date
of his TDIU award.  In a November 1999 statement, the
representative argued that the evidence of record shows the
continuous increase in severity of the veteran's service-
connected PTSD disability, and of his resulting inability to
work.

I.  Law and Regulations

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 therefor." 38
U.S.C.A. � 5110(a) (West 1991).  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) (2000).  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."  38
U.S.C.A. � 5110(b)(2) (West 1991).  See 38 C.F.R.
� 3.400(o)(2).  The term "increase" as used in 38 U.S.C.A.
� 5110 and 38 C.F.R. � 3.400 means an increase to the next
disability level.  See Hazan v. Gober, 10 Vet. App. 511
(1997).

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) (2000).

New and material evidence received prior to expiration of the
appeal period or before an appellate decision is issued will
be considered as having been filed in connection with the
claim which was pending at the beginning of the appeal
period.  38 C.F.R. � 3.156(b); see also VAOPGCPREC 12-98
(September 23, 1998).

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 (2000).  The regulation which governs informal claims,
38 C.F.R. � 3.155 (2000), 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.

Further, under 38 C.F.R. � 3.157(b)(1), an informal claim may
consist of a VA report of examination or hospitalization.
Under this regulatory provision, the date of the VA
outpatient examination or hospital admission will be accepted
as the date of receipt of a claim if such a report relates to
examination or treatment of a disability for which service
connection has previously been established.  Id.

By regulatory amendment effective November 7, 1996, changes
were made to the Schedule for Rating Disabilities for mental
disorders, as codified at 38 C.F.R. � 4.130 (1999).  Where
the law or regulations change after a claim has been filed or
reopened, but before the administrative or judicial appeal
process has been concluded, the version most favorable to the
appellant will apply.  Karnas v. Derwinski, 1 Vet. App. 308,
313 (1991).

Under the old rating criteria, the evaluation for the
veteran's service-connected PTSD is based on the degree of
impairment of his social and industrial adaptability. 38
C.F.R. �� 4.129, 4.130 (1996).  A 50 percent evaluation is
for application where the ability to establish or maintain
effective or favorable relationships with people is
considerably impaired; or by reason of psychoneurotic
symptoms, the reliability, flexibility, and efficiency levels
are so reduced as to result in considerable industrial
impairment.  A 70 percent evaluation is warranted where the
ability to establish and maintain effective or favorable
relationships with people is severely impaired; or the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment.  38 C.F.R. � 4.132, Diagnostic Code 9411
(1996).

A 100 percent evaluation is warranted where the attitudes of
all contacts except the most intimate are so adversely
affected so to result in virtual isolation in the community;
there must be totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic, and
explosions of aggressive energy resulting in profound retreat
from mature behavior; or the veteran must be demonstrably
unable to obtain or retain employment.  Id.

Under the revised criteria, the general rating formula for
mental disorders is as follow:  A 50 percent rating is
warranted where the disorder is manifested by 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 and maintaining effective work and social
relationships.  38 C.F.R. � 4.130, Diagnostic Code 9411
(1999).

A 70 percent rating is warranted where the disorder is
manifested by occupational and social impairment with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking or mood, due to such symptoms
as suicidal ideation; obsessional rituals which interfere
with routine activities; speech that is 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 work-like setting); and an inability to
establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted where the disorder is
manifested by 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
oneself or others; an intermittent inability to perform the
activities of daily living (including maintenance of minimal
personal hygiene); disorientation to time or place; and
memory loss for names of close relatives, one's own
occupation, or one's own name.  Id.

The Board notes that 38 C.F.R. � 4.16(c) was deleted from the
rating schedule, also effective November 7, 1996, with the
amendments for mental disorders.  Section 38 C.F.R. � 4.16(c)
is for application in the veteran's case, since his claim for
an increased rating was filed before the regulatory change
occurred.  Under 38 C.F.R. � 4.16(c), the assignment of a 100
percent schedular rating is warranted in cases in which a
veteran is rated 70 percent disabled due to a psychiatric
disorder, the psychiatric disorder is the veteran's only
compensable disability, and the psychiatric disorder is found
to preclude him from securing or following a substantially
gainful occupation.  See Johnson v. Brown, 7 Vet. App. 95, 97
(1994) (discussing the applicability of 38 C.F.R. � 4.16(c));
see also Swan v. Derwinski, 1 Vet. App. 20 (1990).

The governing regulations also provide that a total
disability rating based on individual unemployability due to
a service-connected disability may be assigned, where the
schedular rating is less than total, when the disabled person
is unable to secure or follow substantially gainful
occupation as a result of service-connected disability.  38
C.F.R. �� 3.340, 3.341, 4.16 (2000).  If the schedular rating
is less than 100 percent, the issue of unemployability must
be determined without regard to the advancing age of the
veteran.  38 C.F.R. �� 3.341(a), 4.19 (2000).  The
regulations further provide that if there is only one such
disability, it must be rated at 60 percent or more; and if
there are two or more disabilities, at least one disability
must be rated at 40 percent or more, and sufficient
additional disability must bring the combined rating to 70
percent or more.  38 C.F.R. � 4.16(a).

In any event, it is the policy of the VA, however, that all
veterans who are unable to secure and follow a substantially
gainful occupation by reason of service connected disability
shall be rated totally disabled.  38 C.F.R. � 4.16(b) (2000).
Thus, if a veteran fails to meet the applicable percentage
standards enunciated in 38 C.F.R. � 4.16(a), an extra-
schedular rating is for consideration where the veteran is
unemployable due the to service-connected disability.  38
C.F.R. � 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225
(1993).  Therefore, the Board must evaluate whether there are
circumstances in the veteran's case, a part from any non-
service-connected condition and advancing age, which would
justify a total rating based on individual unemployability
due solely to the service-connected conditions.  See Van
Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also
Blackburn v. Brown, 5 Vet. App. 375 (1993).

For a veteran to prevail on a claim based on individual
unemployability, it is necessary that the record reflects
some factor which takes the claimant's case outside the norm
of other such veterans.  See 38 C.F.R. �� 4.1, 4.15 (2000).
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.

II.  Factual Background

Service connection for PTSD was established in a November
1989 rating decision.  Evidence reviewed by the RO in
conjunction with that rating determination included service
records, service medical records, VA examination reports and
outpatient records, and the veteran's lay statements.  These
records show that the veteran was in receipt of a Purple
Heart Award, for his combat service in Vietnam.  VA records
dated in May 1985 and November 1985 show that the veteran was
having emotional problems, deep depression, and that he had
extreme hostility and anger.  VA examination in September
1989 revealed that the veteran had chronic post-traumatic
stress disorder.  The RO determined that the veteran's PTSD
was a result of his combat experience in service, and a 10
percent rating was assigned for the disability.  Following
notification of this decision, an administrative appeal was
not filed.

In a statement received on August 2, 1994, the veteran sought
an increased evaluation for his service-connected PTSD.

On November 23, 1994, the veteran underwent VA examination
for PTSD.  The veteran's claims folder was reviewed by the
examiner, and it was noted that a neuropsychiatric
examination was being conducted for rating purposes.  The
examiner noted that the veteran had attended addiction and
anger management groups at VA, and individual counseling at
the Vet Center.  The veteran reported that he had to check
into a psychiatric hospital for treatment after being laid
off from work and called back to work with co-worker who had
defrauded him of money several years earlier.  He was on sick
leave from a railroad company, with whom he had been employed
for 18 years.  The veteran was separated from his wife, and
living with another women in what he described as a good
relationship.

Mental status examination revealed that the veteran was alert
and cooperative.  His mood was worried and discouraged.  His
affect was mildly to moderately depressed, but was
appropriate to expressed thought content.  His speech was
normal in rate and amount, and the content was relevant and
goal directed.  No evidence of hallucinations nor of
delusions was detected.  The veteran was oriented for time,
place and person.  The diagnostic impression included Axis I,
post-traumatic stress disorder, chronic, and history of
alcohol and substance abuse, in remission.  In the comment
section, the examiner stated that the veteran's PTSD symptoms
had shown some increased in severity in the setting of a
situation which had placed his coping mechanisms under
stress.

In a February 8, 1995 rating decision, the RO granted an
increased evaluation, from 10 to 30 percent, for the
veteran's service-connected PTSD.  On February 16, 1995, the
veteran was notified of the decision, and sent a copy of the
rating action and his appellate rights.

A September 27, 1995 VA psychiatric treatment note reveals
that the veteran was being seen after one year of enrollment
in the program.  The veteran reported that he was doing
better with his psychiatric problems, and that he had planned
on going back to work in a month.

On February 7, 1996, the veteran filed a notice of
disagreement with the February 1995 rating determination.
The veteran stated that his relationship with his lady friend
had ended and that reliving his combat experiences had become
a daily thing.  He stated that he was totally alone, and that
his days were filled with anger, dreams of the past,
depression, isolation and fear.

On March 8, 1996, a statement of the case relevant to the
issue of entitlement to an increased evaluation in excess of
"10" percent for PTSD was issued to the veteran.  Therein,
the RO again confirmed that an increased evaluation for PTSD
was granted with a 30 percent evaluation assigned.  In the
letter enclosed with the statement of the case, the RO
informed the veteran that he had 60 days from the date of the
letter, or within the remainder, if any, of the one-year
period from the date of the letter notifying him of the
action that he had appealed, to file an appeal to the Board.
The RO also enclosed a VA Form 9, Appeal to the Board.

On April 11, 1996, the veteran underwent another VA
examination for PTSD.  the claims folder was available for
the examiner's review.  The veteran reported that he had
returned to work with the railroad, and that he was finding
it to be a "grind."  The veteran described that the work
caused him considerable unease, but with which he was able to
deal intellectually.  He avoided social situations as much as
possible.  He went to work, but dealt with his days work as a
"mission," and got out of the situation and home as quickly
as possible.  He was able to deal with predictable
situations, but any time he encountered unexpected
circumstance, he became extremely anxious.  He worked as a
front-end loader with his job at the railroad, and he worked
largely by himself.  The veteran reported that his
relationship with his woman friend had broken up one year
earlier due to the veteran's tendency to isolate himself, and
his inability to involve himself in a normal manner in the
shared life of his lady friend's family.  The veteran
reported feeling comfortable in the 5 or 6 weekly hour group
therapy sessions he attended.  The veteran reported having
recent dreams of past experiences, which often related to
people and places in Vietnam.

Mental status examination revealed that the veteran was
tense, but alert and cooperative.  His mood was euthymic.
His affect was mildly anxious, and was appropriate to
expressed thought content.  The veteran spoke at a normal
rate and was articulate in expressing himself.  The content
of his speech was relevant and goal-directed.  No evidence of
hallucinations nor of delusions was detected.  He was
oriented for time, place and person.  He registered three
items immediately, and he knew the name of the President of
the United States, and one of his three more recent
predecessors.  The veteran made one error when he performed
the first five calculations of serial sevens from 100.  He
was able to reverse the spelling of a word of five letters.
The diagnostic impression included post-traumatic stress
disorder, chronic, and history of substance abuse, in
sustained remission; Axis IV, dissolution of close personal
relationship, difficult work condition, and combat stress,
remote; and Global Assessment of Functioning 55, current and
past year.

In a May 8, 1996 rating decision, the RO continued the 30
percent evaluation for PTSD.  On May 14, 1996, the RO issued
a supplemental statement of the case stating the same.  In
the corresponding enclosure section, the RO indicated that
the veteran had not yet submitted a substantive appeal, or
requested and extension of time to file, and that he had a
period of 60 days from then to make any comments concerning
the additional information provided by the supplemental
statement of the case.  The RO again enclosed a VA Form 9,
and ended the letter by stating that the veteran's
"appellate rights will expire on 3-08-97."

A VA mental health clinic note, dated in July 1996, revealed
that the veteran had problems sleeping.

From August 6, 1996 to August 28, 1996, the veteran was
hospitalized at the VA Medical Center (VAMC) in Tuskegee.  He
was admitted with a complaints of feeling of loss of control
and flirting with danger.  He had subconscious suicidal
gestures and homicidal thoughts.  He responded to the
treatment program satisfactorily and was discharged to
continue treatment at the PTSD program on an outpatient
basis.  The discharge diagnoses included Axis I, post-
traumatic stress disorder; and Axis V, current GAF of 30, and
the highest level in the past year of 30.

On September 17, 1996, the veteran requested a temporary
total disability evaluation and indicated that he was
presently hospitalized in Alabama.  In a statement received
on September 25, 1996 at the Montgomery RO, the veteran
requested that his claims folder be moved from the Houston RO
to the Montgomery RO, and that his pending issues be handled
at the Montgomery RO.  At that time, the veteran also
submitted a VA Form 9, and it was date stamped by the
Montgomery RO on September 25, 1996.  It was stamped again by
the Houston RO, with a date of October 7, 1998.  Therein, the
veteran referenced award letters from the RO, "dated on or
around November 1995," that he felt were incorrect.  As
indicated above, the RO's notice of the grant of the 30
percent rating was in a February 1995 letter to the veteran.
He noted that he had been involved in a PTSD program at the
VA, and that corresponding medical records reflected the
severity of his position, and that reasonable doubt should be
rendered in his favor.  The Board herein determines that this
VA Form 9, submitted by the veteran on September 25, 1996
contained the necessary information regarding the issue of an
increased evaluation for PTSD being appealed.  38 C.F.R.
� 20.202 (2000).  The timeliness of this document is
discussed in the analysis section below.

From September 4, 1996 to October 18, 1996, the veteran was
hospitalized at the VA Medical Center in Tuskegee.  Upon
admission, the veteran was nervous, depressed, untrusting and
with poor concentration.  Affect was constricted.  No
suicidal or homicidal ideations were elicited.  He admitted
to auditory hallucinations about Vietnam.  During the course
of his hospitalization, the veteran participated in
individual and group therapy and educational workshops.  It
was noted that the veteran improved with treatment, including
medication, but that he tested positive for cocaine done on
October 14th.  He was discharged on an "irregular" basis.
The discharge diagnoses included Axis I post-traumatic stress
disorder, and substance abuse disorder cocaine.

The Houston RO filled out a Notice of Permanent Transfer of
Veteran's Records, (PTO) therein indicated that the date of
transfer of the veteran's records to the Montgomery RO, per
the veteran's request, was October 18, 1996.

On October 24, 1996, the representative submitted a statement
as an "'informal claim' under the provisions of 38 C.F.R.
� 3.155(a)," with the intent to establish an effective date
for entitlement to an increased rating for the veteran's
service connected disabilities.

An October 29, 1996 VA treatment record revealed that the
veteran had a stable case of PTSD, and that he was there for
a medicine refill.  He denied any suicidal intention or plan.
Supportive therapy was provided.

In a March 1997 rating decision, the Houston RO assigned a
temporary total disability rating for hospitalization over 21
days (from August 6, 1996 to September 1, 1996).  See
38 C.F.R. � 4.29.  By that same rating decision, the veteran
was awarded an increased evaluation for his service-connected
PTSD, from 30 percent to 50 percent, effective September 1,
1996.  The Houston RO sent the veteran a letter to this
effect, at the veteran's address in Texas, along with a copy
of the March 1997 rating decision and notice of his appellate
rights.  Although the Houston RO issued this rating decision,
a PTO showing that the veteran's claims folder was sent back
to Houston from Montgomery is not of record.

In April 1997, the representative asked that further records
be retrieved by the RO and reviewed in conjunction with the
veteran's claim for an increased evaluation for PTSD.

On September 29, 1997, the Houston RO received a statement
from the veteran which indicated that he was unemployable,
and that he had been further hospitalized in 1996, from
September 4, 1996 to October 8, 1996.

On September 29, 1997, the Houston RO received from the
veteran VA Form 21-8940, Veteran's Application For Increased
Compensation Based on Unemployability.  Therein, in pertinent
part, the veteran indicated that it was his service-connected
PTSD disability that prevented him from securing or following
any substantially gainful occupation.  In the section which
asks for the date that the disability affected full time
employment, the veteran listed "1985, 1992, and May 1,
1996."  He stated that he had last worked full time on April
29, 1996, and that was also the date that he became too
disabled to work.  He indicated that his employment for the
past 5 years had been at the Union Pacific Railroad.  The
veteran remarked that he had angry outbursts, inability to
work and communicate with others, isolation, nervousness,
anxiety, and uncontrollable fear.

On October 8, 1997, the veteran underwent VA examination for
PTSD.  His claims folder was not available for review by the
examiner.  The assessment was Axis I, post-traumatic stress
disorder, chronic; Axis V, unemployment, social isolation,
lack of transportation, reduction in economic status; and
Axis V, current global assessment of function score, 55.  In
the corresponding Addendum, the examiner stated that he had
given the veteran a GAF of 55, which meant moderate symptoms
and specifically modern difficulty in social occupational or
school functioning.  The examiner stated that the veteran was
extremely socially isolated, and that he was not currently
working.  The veteran did not get along well with other
people.  He had been able to find jobs but had felt
sufficiently uncomfortable that he had not been able to
remain on the job.

Regarding the affect of the veteran's PTSD on current or
future employment, it was the examiner's opinion that the
veteran's PTSD made it quite difficult for him to work in a
setting surrounded by noise or people.  It was noted that a
possible type of job for the veteran would be one where he
did not have to deal with people or a supervisor.

In a corresponding general VA examination, also done on
October 8, 1997, the examiner noted that the veteran's major
disabling affect was his PTSD.

In a November 1997 rating decision, the RO granted a
temporary total evaluation of 100 percent for the veteran's
service-connected PTSD, due to his hospitalization and
treatment of the disability from September 4, 1996 to October
18, 1996.  The 50 percent disability was resumed and
continued effective November 1, 1996.  The RO denied
entitlement to individual unemployability.  The veteran was
notified of the same in a letter from the RO dated in
December 1997.

In November 1997, the RO issued a supplemental statement of
the case regarding the denial of an evaluation in excess of
50 percent for PTSD.

In May 1998, the veteran's minor child and care taker wrote
letters, lay statements, on his behalf.  Therein, the child
described how sick the veteran looked, that the veteran
passed out in the bathroom, and it seemed like the veteran
ran away.  The caretaker, and presumably, ex-girlfriend,
indicated that the veteran had problems sleeping and in
maintaining their sexual relationship and a relationship with
their family.  She described the veteran's anger and that he
yelled at her and the children.

In June 1998, the veteran submitted a statement regarding a
request for an increased evaluation for PTSD.  He referred to
the Railroad Retirement Board decision.

In January 1999, the veteran underwent another VA
neuropsychiatric examination, for rating purposes.  The
veteran noted that he had tried to return to work at the
railroad and his behavior was such that as of December 1997,
he was entitled to disability annuity and he could not return
to work due to his symptoms of post-traumatic stress
disorder.  The assessment included Axis I, post-traumatic
stress disorder; Axis IV, life threatening illness,
unemployment, social isolation, lack of transportation,
finances, combat stress remote; and Axis V, current GAF of
50.  The examiner explained that the GAF of 50 was given
because in the past 2 years since he lost his job, the
veteran had been unable to gain or maintain a job; and that
the veteran did attempt to return to work and his symptoms
prevented him from accomplishing that, and that he had no
friends and was socially isolated.  It was the examiner's
opinion that the veteran was unemployable.

In a February 11, 1999 rating decision, the RO granted an
increased rating, from 50 to 70 percent, for the veteran's
PTSD, effective September 29, 1997.  The RO granted
entitlement to TDIU, effective September 27, 1997, the date
of the receipt of the veteran's claim which was supported by
evidence showing he was unemployable.  By way of a letter
dated in February 1999, the RO notified the veteran of the
increased rating and award of compensation at the 100 percent
rate because he was unable to secure and follow a
substantially gainful occupation because of his service-
connected disability.

In February 1999, the RO also issued a supplemental statement
of the case, which included the issue of increase from 50 to
70 percent for the veteran's service-connected PTSD, and an
explanation of the grant of TDIU effective September 29,
1997.

In July 1999, the veteran indicated that he was not satisfied
with the effective date and requested an effective date of
August 2, 1994, for the increased rating for PTSD.

In September 1999, the RO issued a statement of the case
regarding an earlier effective date for an increased rating
for PTSD.  Therein, the RO indicated that the reason an
effective date earlier than September 29, 1997 was not being
assigned to the veteran's claim for increase was because the
veteran did not timely perfect an appeal of the February 1995
rating action.  The RO stated that the veteran's VA Form 9
was received, too late, on "October 7, 1998."  The RO
concluded that the veteran filed a claim for increased
evaluation on September 29, 1997 and was granted an increased
rating effective the date of that claim.

In September 1999, the veteran submitted evidence regarding
his service and compensation at the railroad, and asked that
this evidence be forwarded to the Board.  The decision of the
Railroad Board was that the veteran was entitled to
disability annuity under the Railroad Retirement Act,
effective April 19, 1996, his date that he last worked.  The
Board found that the veteran's post-traumatic stress disorder
met the requisite impairment listing.

In a November 8, 1997 rating decision, the RO denied the
veteran entitlement to payment of temporary total benefits
under 38 C.F.R. � 4.29 for the interval between periods of
hospitalization (August 6, 1996 to August 28, 1996 and
September 4, 1996 to October 18, 1996).

In November 1999, the veteran's friend and caretaker,
submitted a lay statement to the effect that she has taken
care of the veteran for the past 9 years.  She stated that
she fed and dressed the veteran.  She stated that the veteran
had extreme confusion in December 1995, and she mentioned
that he had to be taken to Alabama at the time for special
care.

The veteran perfected a timely administrative appeal with
respect to the assignment of September 29, 1997 as the
effective date for the increased rating from 50 to 70 percent
for his service-connected PTSD, and for the effective date
for the award of TDIU.

III.  Legal Analysis

In order to apply the above statutory and regulatory
provisions to the instant appeal, it is necessary to
determine the date of receipt of the veteran's claim for
increased compensation for the 70 percent PTSD disability
rating, and to determine the date that it became factually
ascertainable that the veteran's service-connected PTSD
increased in severity.  Secondly, it is necessary to
determine the date of receipt of the veteran's claim for
TDIU, and to determine the date that it became factually
ascertainable that the veteran was totally disabled due to
his service-connected disability.

Earlier Effective Date-70 PTSD

In determining the date of receipt of the veteran's claim for
increased compensation for the 70 percent PTSD disability
rating, the Board points out that its analysis of the
procedural posture of this issue differs somewhat from that
of the RO's.  This difference affects the remainder of the
analysis of the veteran's claim for an earlier effective date
for a 70 percent rating for PTSD.

The RO's position, in essence, and as was somewhat indicated
in its September 1999 statement of the case, is that since
the veteran did not submit a VA Form 9 until "October 7,
1998" he did not perfect an appeal against a February
1995 rating action on the issue of entitlement to an
increased rating for PTSD.  Since he did not perfect that
earlier appeal, he had to submit a new claim for entitlement
to an increased rating for PTSD, which he did in his
statement received on September 29, 1997.  The RO granted the
increased evaluation effective to the date of receipt of that
statement, considered the new claim, September 29, 1997.

The Board's position is twofold.  First, the RO gave the
veteran more time normally permitted by regulation to submit
his substantive appeal, when in the May 14, 1996 supplemental
statement of the case, it informed the veteran that his
appellate rights would expire on "March 8, 1997."  That is,
even though this date given by the RO was incorrect, the
veteran was nevertheless informed that he had until March 8,
1997 to perfect his administrative appeal to the Board.
Normally, the veteran would have had 60 days from the date
that the agency of original jurisdiction mailed the statement
of the case to the veteran, or within the remainder of the 1-
year period from the date of mailing of the notification of
the determination being appealed, whichever period ends
later.  See 38 C.F.R. � 20.302(b) (2000).

Here, the veteran was notified of the determination that he
chose to appeal on February 16, 1995, when the RO informed
him of the February 1995 grant of increase to 30 percent.  He
had until February 16, 1996, or 60 days from the May 14, 1996
statement of the case, to submit the VA Form 9.  September
25, 1996 is more than 60 days from the May 14, 1996 letter,
and is after the 1-year deadline of February 16, 1996.  But,
since VA informed the veteran that his appellate rights
expired on March 8, 1997, that is the date until which the
veteran had to file his VA Form 9, Appeal to the Board.

Secondly, the Board must determine which date on the VA Form
9 is acceptable for purposes of this appeal because if the
September 25, 1996 stamp is acceptable, then the veteran
filed a timely VA Form 9.  The rule, pursuant to 38 C.F.R.
� 20.300, Subpart D-Filing, is that the claimant is to file
his substantive appeal, herein the VA Form 9 in question,
with the VA office which the claimant received notice of the
determination being appealed unless notice has been received
that the applicable VA records have been transferred to
another VA office.  In that case, the substantive appeal must
be filed with the VA office which has assumed jurisdiction
over the applicable records.  Id.  The caveat here is that
the veteran asked that his records be transferred from the
Houston RO to the Montgomery RO simultaneous with his
submission of VA Form 9, regarding an increased rating for
PTSD.  There is a stamp dated September 25, 1996 from the
Montgomery RO on the VA Form 9, and then a later stamp dated
October 7, 1998 from the Houston RO.  The Houston RO issued a
PTO on October 18, 1996, and thereafter it is not clear
whether the veteran's claims folder was actually transferred
to the Montgomery RO or not.

The veteran was to file his VA Form 9 with the Houston RO
because that was the agency of original jurisdiction from
where he received notice of the determination being appealed,
unless his records were transferred to another RO.  Since the
veteran requested that his records be transferred to the
Montgomery RO, and that request was granted by October 18,
1996, the veteran was allowed to file his VA Form 9 with the
Montgomery RO at least as of October 18, 1996.  Again, this
is only pertinent because the veteran had until March 8, 1997
to file.  It appears to the Board that since the veteran's VA
Form 9 was filed simultaneously with his request for transfer
of records, the Montgomery RO had jurisdiction over the
veteran's claim at least as of October 18, 1996, which is a
date prior to the date that the veteran's appellate rights
expired; March 8, 1997.  Therefore, his VA Form 9, was timely
filed.

Now that it is established that the veteran filed a timely VA
Form 9 against his original claim for increase, the
discussion of the date of receipt of the veteran's claim for
increased compensation, and the date that it became factually
ascertainable that the veteran's service-connected PTSD
increased in severity, resumes.

The veteran filed a claim for increased rating on August 2,
1994.  In a February 1995 rating decision, he received a
grant from 10 to 30 percent.  He thereafter filed a timely
notice of disagreement with the assigned percentage, and a
timely substantive appeal.  He did not receive another
increase until the March 1997 rating decision when he was
awarded a temporary total disability rating for
hospitalization over 21 days.  It was at that time that the
veteran's disability rating was again increased, from 30 to
50 percent, effective September 1, 1996; which was the
effective date following the veteran's temporary total
evaluation based on hospitalization.  The disability rating
was increased for the third time, from 50 to 70 percent, in
the February 1999 rating decision.  In sum, the Board
observes that the date of receipt of the veteran's claim for
increased compensation was on August 2, 1994.  That is the
date that the VA received the veteran's statement in writing
that he wanted an increased evaluation for PTSD.

There is no other indication in the record that the veteran
applied for increased compensation benefits prior to August
2, 1994.  The medical records received prior to August 2,
1994, were received and dated prior to the November 1989
rating decision wherein service connection for PTSD was
granted and a 10 percent disability rating was assigned.  The
veteran did not initiate an appeal on the November 1989
rating decision.  In fact, the next correspondence from the
veteran in the record is the August 2, 1994 statement
regarding a request for increase.  And, the representative's
statement dated on October 24, 1996, submitted as an informal
claim, no doubt to preserve the veteran's right's regarding
effective date considering the procedural posture of this
case, is not looked to as an informal claim in this analysis,
as the Board has accepted an earlier date for the date of the
claim.

Next, the Board turns its consideration to the latter
proposition, which is what date it became factually
ascertainable that the veteran's service-connected PTSD
increased in severity.  In this context, the Board determines
that the "exception" to the general rule, as set forth in 38
U.S.C.A. � 5110(b)(2) and 38 C.F.R. � 3.400(o)(2), does not
apply in that it was not "factually ascertainable" that the
veteran's PTSD had increased in severity within the one-year
period preceding the date of receipt of his August 2, 1994
claim; that is August 2, 1993.  Here, the record reflects
that the only evidence on file during the one-year preceding
August 1994, were reports pertaining to VA evaluation and
treatment the veteran received up until his VA examination in
November 1989; which is almost 4 years earlier the requisite
only year.

Therefore, it is the general rule as set forth in 38 U.S.C.A.
� 5110(a) and 3.400(o)(1) that applies to this veteran's
case.  See Harper v. Brown, 10 Vet. App. 125, 126-127 (1997).
In this regard, the veteran necessarily and generally
contends that his PTSD symptoms were severe enough to warrant
at least a 70 percent rating earlier than the effective date
assigned by the RO of September 29, 1997.  In fact, the
veteran has specifically contended that he wants the
effective date back to August 2, 1994.  Again, the veteran
has not appealed an increased rating above 70 percent for
PTSD, so the Board will not discuss the schedular rating
criteria for 100 percent.

Since the veteran disagrees with the effective date assigned
for the award of the 70 percent rating, the Board's
consideration of this appeal now turns on whether that level
of disability was demonstrated by the evidence of record
prior to September 29, 1997, but on or after August 2, 1994,
the date of receipt of the claim for increase.  In applying
this general rule, it is factually ascertainable that the
symptomatology associated with the veteran's service-
connected PTSD increased to the 70 percent level prior
September 29, 1997.

The Board finds that the older rating criteria is more
favorable to the veteran.  Again, that criteria establishes
that a 70 percent evaluation is warranted where the ability
to establish and maintain effective or favorable
relationships with people is severely impaired; or the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment.  38 C.F.R. � 4.132, Diagnostic Code 9411
(1996).

Upon review of the evidence of record, VA examination in
November 1994, shows that the veteran was on sick leave from
a railroad company, with whom he had been employed for 18
years.  But at that time, he was involved in a good
relationship with a girlfriend.  His diagnosis included post-
traumatic stress disorder, chronic, and history of alcohol
and substance abuse, in remission.  The increase in severity
indicated by the examiner in November 1994, was not that
which corresponds to a 70 percent disability rating, under
the old rating criteria.  When the veteran was seen in
September 1995, he reported doing better with his psychiatric
problems, and that he had planned on going back to work in a
month.

What is most probative here is that the veteran last worked
for the railroad on April 19, 1996, and in a December
1997 decision from that agency, he was found to be eligible
for disability annuity from that job because of his PTSD.
Looking at the facts of the case to determine whether it is
ascertainable for VA rating purposes that the veteran was 70
percent disabled as of April 19, 1996, the Board must also
weigh the medical evidence.  That is, it is quite probative
that the veteran was unable to work anymore, due to PTSD, as
of April 19, 1996, and VA has contemporaneous records showing
the severity of his condition during 1996.

The veteran was evaluated at VA on April 11, 1996, and he
apparently stopped working on April 19, 1996.  At the VA
examination, the veteran noted that he had broken off his
relationship, and he described in detail how difficult it was
for him to work everyday.  Included with his diagnosis of
PTSD, was the dissolution of close personal relationship,
difficult work condition, and combat stress, remote; and
Global Assessment of Functioning 55, current and past year.
The veteran was later hospitalized on two different
occasions, from August 1996 to October 1996.  Upon admission
he had suicidal thoughts, but those subsided upon discharge.
The GAF score went down to 30 during his August
hospitalization, and it was that examiner's opinion that 30
was the GAF for the past year.

Looking at the evidence in total, the Board finds that the
fact that the veteran was retired from the railroad, and that
he last worked on April 19, 1996 is significant in that he
was no longer able to function properly at that time, due to
his PTSD.  Our VA medical records chronicle the veteran's
problems with PTSD from April until October 1996, his last
hospitalization of record.  The Board determines that it was
at the time that he stopped working that the veteran's
clinical signs and manifestations of his service-connected
PTSD were of at least such severity and persistence that
there was severe impairment in the ability to obtain or
retain employment.  His ability to establish and maintain
effective or favorable relationships with people was at least
severely impaired.  The veteran's inability to continue his
job in 1996, was also discussed and highlighted by the
examiner at the VA examination in January 1999.

The statements received by the veteran's caretaker/former
girlfriend, and her child, are lay statements that do not
show, nor purport to show, that the veteran's PTSD was more
disabling prior to September 1997.  The fact that he had
extreme confusion in December 1995, or other familial
problems, is factored into the disability rating assigned for
70 percent under the old criteria.

Therefore, the date of the increase must be considered to be
April 19, 1996, and, the Board determines that there are no
other applicable, and earlier records, for which to derive a
factually ascertainable increase in the veteran's disability.
Accordingly, the Board finds that under the applicable legal
criteria, the effective date of the veteran's claim for
increased compensation to 70 percent for the service-
connected PTSD, is governed by the later of the date of the
increase or the date the claim was received.  38 C.F.R.
� 3.400(o)(1); see also 38 U.S.C.A. � 5110(a).  In this case,
the later date is the date of the increase, April 19, 1996,
which is earlier than the date assigned by the RO.
Accordingly, the appeal is granted.

Earlier Effective Date-TDIU

In determining the date of receipt of the veteran's claim for
TDIU, the Board points out that it was on September 29, 1997,
that the RO received the veteran's application for TDIU, on
VA Form 21-8940.  However, that is not the date that the
claim, information, or evidence was received by VA.
38 C.F.R. � 3.1(r).  On October 24, 1996, the veteran's duly
authorized representative submitted a statement as an
"informal claim" under the provisions of 38 C.F.R.
� 3.155(a), with the express intent to establish an effective
date for entitlement to an increased rating for the veteran's
service-connected disability.  Section 38 C.F.R. � 3.155((a)
provides that:

Any communication or action, indicating an intent to
apply for one or more benefits under the laws
administered by the Department of Veterans Affairs, from
a claimant, his or her duly authorized representative, a
Member of Congress, or some person acting as next friend
of a claimant who is not sui juris may be considered an
informal claim.  Such informal claim must identify the
benefit sought.  Upon  receipt of an informal claim, if
a formal claim has not been filed, an application form
will be forwarded to the claimant for execution.  If
received within 1 year from the date it was sent to the
claimant, it will be considered filed as of the date of
receipt of the informal claim.

38 C.F.R. � 3.155.  In Servello v. Derwinski, 3 Vet. App.
196, 198 (1992), the Court addressed the issue of entitlement
to an earlier effective date in a total rating claim and held
that the applicable statutory and regulatory provisions,
fairly construed, required the Board to look at all
communications in the file that may be interpreted as
applications or claims, formal and informal, for increased
benefits and, then, to all other evidence of record to
determine the "earliest date as of which," within the one
year prior to the claim, the increase in disability was
ascertainable.  38 U.S.C.A. � 5110(b)(2); see 38 C.F.R.
� 3.400(o)(2), 3.155(a)(2000); Quarles v. Derwinski, 3 Vet.
App. 129, 134 (1992).

Applying the guiding principles of 38 C.F.R. � 3.155 and
Servello to this case, the Board determines that the
representative's October 24, 1996 statement was an informal
claim for an earlier effective date for increase, even to 100
percent under TDIU.  Since the veteran's formal application
on VA Form 21-8940 for TDIU was received on September 29,
1997, within one year from the informal claim, it is
considered filed as of the date of the informal claim, on
October 24, 1996.

Next, in determining the "earliest date as of which," within
the one year prior to the claim (October 24, 1995 to October
24, 1996), the increase in disability to 100 percent
disablement was ascertainable, the Board reviews the evidence
of record as follows.  At the November 1994 VA examination,
it was noted that the veteran had been recalled back to work
after a lay-off, even though he had difficulty coping.  In a
September 1995 VA medical record it was noted that the
veteran was returning to work.  No other records are
identified for 1995.  At the April 11, 1996 VA examination,
the veteran described that he had returned to work in
January, but that he found it "grind."  He went to work,
even though he had to "psych" himself up for the job.  The
veteran was apparently still employed at the date of the VA
examination on April 11, 1996, until he was found too
disabled to work by the railroad company and was retired as
of April 19, 1996.

In sum, from October 24, 1995 the veteran was continuously
working until he was no longer able to work as of April 19,
1996.  At the January 1999 neuropsychiatric VA examination
the examiner opined that the veteran was unemployable and
that "in the past two years since he lost his job, he has
been unable to gain or maintain a job."  Here, the record
shows that the veteran was totally disabled to work when he
was retired from the railroad effective April 19, 1996.  The
proceedings surrounding his disability annuity from the
railroad in fact show that the veteran last worked on April
19, 1996, and that his impairment was based on his post-
traumatic stress disorder.  Hence, the veteran's disability
had increased to the next disability level at the time of his
retirement.  See Hazan v. Gober, 10 Vet. App. 511 (1997);
38 U.S.C.A. � 5110(b)(2); 38 C.F.R. � 3.400(o)(2).
Therefore, the "earliest date as of which," within the one
year prior to the claim, the veteran was shown to be totally
disabled due to his service-connected disability, was April
19, 1996.  See Servello v. Derwinski, supra.

Accordingly the veteran's claim for an effective date earlier
than September 29, 1997 for the award of TDIU is warranted,
and the veteran is entitled to an effective date of April 19,
1996.

ORDER

An effective date of April 19, 1996, for the assignment of a
70 percent evaluation for PTSD is granted, subject to the
provisions governing the award of monetary benefits.

An effective of April 19, 1996, for the award of a total
disability rating based on individual unemployability is
granted, subject to the provisions governing the award of
monetary benefits.

	Deborah W. Singleton
	Member, Board of Veterans' Appeals