Citation Nr: 1307541 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-11 140A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher evaluation for major depression, initially rated at 30 percent from February 8, 2007 to August 23, 2012, and at 70 percent since August 24, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to August 24, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The Veteran served on active duty from June 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection and a 30 percent evaluation for major depressive disorder, effective February 8, 2007. The Veteran appealed therefrom, seeking a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). Records reflect the Veteran was scheduled for an October 2010 Travel Board hearing, and failed to appear. He has not provided good cause justification for his nonappearance, or attempted rescheduling, and therefore his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). On preliminary consideration of this case in September 2011, the Board assumed appellate jurisdiction over the issue of entitlement to a TDIU as a matter inextricably intertwined with the increased evaluation claim already on appeal. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then proceeded to remand both claims to the RO (via the Appeals Management Center (AMC)) for increased rating for major depression and TDIU for further evidentiary development. Thereafter, the RO/AMC rating decision of November 2012 granted entitlement to a TDIU, effective August 24, 2012. That decision further increased to the 70 percent level the evaluation for major depression, also from August 24, 2012. By its January 2013 written brief presentation, the Veteran's designated representative contested the assigned effective date of a TDIU therein. Inasmuch as the claim for a TDIU since the effective date of service connection for major depression was already on appeal, the Board now duly considers whether a TDIU may be assigned prior to August 24, 2012, without need to initially refer to the RO for formal adjudication the question of the proper effective date for that benefit. Moreover, given that the Veteran has not expressly indicated satisfaction and accord with the higher evaluation awarded for major depression, this increased rating claim likewise remains in appellate status before the Board. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). FINDINGS OF FACT 1. From the February 8, 2007 effective date of service connection to August 23, 2012, the Veteran's major depression involved occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Since August 24, 2012, the Veteran's condition has involved deficiencies in most areas, but not total occupational and social impairment. 3. Since February 8, 2007, the Veteran has been incapable of securing and maintaining substantially gainful employment due to service-connected disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish a 70 percent initial evaluation, and not higher, for major depression, from February 8, 2007 to August 23, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). 2. The criteria are not met for an evaluation higher than 70 percent for major depression, since August 24, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a TDIU as a result of service-connected disabilities, from February 8, 2007 to August 23, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2011). In regard to the claim on appeal for higher initial evaluation for service-connected major depression, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claim for service connection for major depression has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. In any event, the RO has provided March 2007, December 2008, and April 2012 notice correspondence that directly addressed the evidentiary requirements to substantiate the claim on appeal. Also, as indicated below, the Board is granting the benefit sought on appeal of entitlement to a TDIU from the earliest possible effective date of February 8, 2007, based on the relevant date of claim recognized under VA law. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The RO/AMC furthermore has taken appropriate action to comply with the duty to assist the Veteran through obtaining records of VA outpatient treatment, VA Vocational Rehabilitation records, and arranging for him to undergo VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In furtherance of his claims, the Veteran has provided several personal statements. Whereas a Travel Board hearing was initially requested, the Veteran did not appear on the scheduled hearing date, and has not requested a new hearing in this matter. There is no indication otherwise of any further relevant evidence or information which has not yet been obtained. In April 2012, the Veteran was asked to submit evidence with regard to any relevant legal proceedings, but he did not submit any such records. Later that month he responded that, other than VA treatment records, he had no more information to submit and requested that a decision be made as soon as possible. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Factual Background VA outpatient treatment records dated in September 2006 show that the Veteran was diagnosed as having major depression and alcohol and cocaine dependency. He was assigned a Global Assessment of Functioning (GAF) score was assigned of 45. In January 2007, it was noted that he had met with Vocational Rehabilitation and was being evaluated for schooling options. His affect was worried, concerned, and confused. The examiner diagnosed depression and assigned a GAF score of 48. The Veteran underwent VA Compensation and Pension examination in May 2007. The Veteran reported no alcohol or substance abuse at that time. He had a history of legal difficulties related to narcotics and other charges. He was recovering from just having had triple bypass surgery, and had no means of support other than family members. There were no reported leisurely pursuits. There was a remote history of assaultive behavior. The Veteran further reported that he was treated on medication for hepatitis C, and started presenting with depression in May 2006. He was certain that the medications given to him for hepatitis C had a major impact on the appearance of depression. He estimated his level of motivation and mood as a 3 on a scale of 1 to 10. Sleep was only fair to poor, with four to five hours per night. Appetite was variable. Concentration was fair. Energy was poor, and he could not tell if this was due to his heart condition, or depression. He denied suicidal or homicidal ideation. On psychiatric evaluation, the Veteran's general appearance was clean, neatly groomed, and appropriately dressed. Psychomotor activity was lethargic and fatigued. Speech was impoverished, hesitant, soft or whispered, slow and clear. Attitude towards the examiner was cooperative and apathetic. Affect was constricted, and mood was dysphoric. Attention was prone to disturbance due to distraction. The Veteran was well-oriented. Thought process showed paucity of ideas and blocking. Thought content was unremarkable. There were no delusions. Judgment and insight were present. There was global insomnia, with only five hours of sleep or so. There was no inappropriate behavior, or obsessive/ritualistic behavior. There were no panic attacks. There were no suicidal or homicidal thoughts. Extent of impulse control was good, and there had been no episodes of violence in the past five years. There was ability to maintain minimum personal hygiene, and there were no problems with activities of daily living. Recent and remote memory were mildly impaired, and immediate memory was normal. The diagnosis was major depression by history; depressive disorder, not otherwise specified (NOS); polysubstance dependence in full sustained remission; and Interferon (IFN) induced mood disorder with depression. A Global Assessment of Functioning (GAF) score was assigned of 51. The VA examiner commented that there was an extensive history of alcohol and substance abuse that could very well account for some of the Veteran's mood symptoms either as a way to self-medicate, or as a way to worsen his mood condition during withdrawal situations. It was estimated that while there was not total occupational and social impairment, the mental disorder signs and symptoms resulted in deficiencies in the areas of judgment (negatively biased, pessimistic), thinking (slowing, paucity of ideas with some thought blocking), and mood (low mood, frustrated, helpless and hopeless). According to the examiner, it was unlikely that the Veteran would be able to perform at a level commensurate with his age at this point, due to reduced reliability and productivity consequent to his low mood, irritability, frustration, hopelessness and helplessness. The examiner further clarified that the Veteran's depressive disorder was at least as likely as not caused by or a result of hepatitis C, inasmuch as medical literature supported the existence of a correlation between hepatitis C infection and depression, based on taking IFN which was known to cause the side effect of depression. In a September 2007 rating decision, the RO granted service connection for major depression as secondary to the service-connected condition of hepatitis C, effective from February 8, 2007. Thereafter, the Veteran underwent a course of VA outpatient mental health treatment. The report of a June 2008 substance abuse consult by a VA health sciences specialist, indicates that in April 2008 the Veteran had tested positive for cannabis and cocaine, and that since 2003 he had been using illegal drugs on a daily basis or whenever he had money to purchase it. He believed that his usage of cannabis assisted him in coping with the stressors in his life. He stated that he had experienced social and relationship problems due to his usage. He did not then report depressed mood. Objectively, the Veteran was well-oriented, with normal appearance, normal speech, and normal flow of thought that was logical, sequential and goal-oriented. Memory was normal in all facets, as was concentration. There were no delusions or hallucinations. Mood was normal and appropriate, as was affect. The diagnosis was cannabis dependence; cocaine dependence; and major depressive disorder, with an assigned GAF of 60. A July 2008 VA mental health outpatient note indicated reportedly no overt psychosis or delusions, with no other significant distress. Report of sleep, appetite and energy level were all fair. Objectively, appearance was normal, motor activity was relaxed, speech was normal rate and volume, mood was euthymic, affect was broad, thought content and progression was normal and goal oriented, perceptions and memory were normal, attention span and concentration were normal, insight and judgment were good, and impulse control was intact. The impression was depression, NOS; and cannabis dependence. The assigned GAF was 65. An August 2008 follow-up consult indicated that the Veteran described difficulty sleeping, fatigue and mood swings. He had low frustration tolerance, insomnia and anhedonia. The VA treatment provider talked to the Veteran about trying a different medication, as his depression was considered so significant that it did not enable him to keep gainful employment for any length of time. On VA re-examination of September 2008, the Veteran was indicated to have been receiving medication as well as individual counseling on a regular basis, with medication being controlled closely due to side effects of HCV medications. His mood was labile with increase as noted from about four months previously. Meanwhile, his sleep was improved with a new medication, and he was not as "edgy" as in past. His depressed mood had become more severe, and there was increased anger and frustration for the past five to six months and during anger while driving he was given a speeding ticket. He also reported increase in symptoms of HCV which had added to his depressed mood and also anxiety and depression, due to side effects of medication for this illness. Objective examination revealed he was clean and casually dressed, psychomotor activity and speech was unremarkable, attitude towards the examiner was cooperative, mood was depressed, affect was described as "bland," attention and orientation were intact, and thought process and content were unremarkable. Judgment and insight were present. There were no delusions or hallucinations. There was no inappropriate behavior, or obsessive/ritualistic behavior. There were no panic attacks. There was no suicidal or homicidal ideation. There was the ability to maintain minimum personal hygiene, and no problem with activities or daily living. Memory was normal in all spheres tested. The diagnosis given was major depressive disorder; and cocaine and alcohol abuse by history in remission. The assigned GAF was 60. According to the examiner, the Veteran's condition remained severe, with added problems related to medication for treatment of his HCV and its side effects. It was estimated that the Veteran had resultant deficiencies in the areas of judgment (poor secondary to anger and mood), and of mood (depressed, anxious mood and secondary effects of medications for HCV as noted). Through October 2008 correspondence, the Veteran indicated that due to his mental health condition on a daily basis he was frustrated, angry, hopeless, and looking forward to an end to his situation. He reportedly had no motivation, experienced anxiety, had memory loss, had panic attacks, was unable to sleep, and was distrusting, irrational, aggressive, vengeful, and unable to concentrate. He reportedly was withdrawn and alienated, had no relationships, and was always fatigued and mentally drained. On VA outpatient evaluation in October 2008, the Veteran underwent follow-up for substance abuse issues which he stated alleviated his other symptoms of insomnia, appetite disturbance and depression. The Veteran was well-oriented throughout the session, cooperative offering feedback and self-disclosure, and had affect appropriate to topic and congruent with mood which was stable. Thought content was logical without presence of psychotic features, and the Veteran denied any suicidal or homicidal ideation or plans. There were no cognitive deficits, or short or long-term memory issues. The diagnosis was major depressive disorder; cannabis abuse; cocaine abuse in remission. The assigned GAF was 61. On follow-up the next month, the diagnosis was the same, and assigned GAF was 65. When seen later in April 2009, the Veteran reported taking his prescribed psychotropic medications, and being helped by them in that he seemed more motivated to do positive things for himself such as attempt to get an associates degree. He indicated he had applied for VA vocational rehabilitation benefits. In October 2009, the Veteran reported that his depression had worsened, and he had anhedonia, little energy to do things including going to work. He agreed to an increase in dosage of psychotropic medication. He was assigned a GAF score of 49. Later, on consultation in June 2010, the Veteran reported that he was taking vocational rehabilitation classes in fabrics, and was on his prescribed medications with no side effects. He felt his mood was stable, and had no depressed mood. He was assigned a GAF score of 47. The Veteran underwent VA examination again in August 2012, which verified a diagnosis of major depressive disorder, recurrent, moderate, with an assigned GAF score of 52. As to relevant psychosocial history, it was observed that the Veteran had some ongoing contacts with family members, and his nephew lived with him and provided assistance with some activities of daily living. The Veteran regularly watched television, but otherwise denied any significant hobbies. He stated that he did not sleep well at night, so he spent much of his daytime hours asleep. He had been unemployed since 2007, when he sustained a myocardial infarction and had bypass surgery. He started vocational rehabilitation in 2009, but dropped out after a few months due to the discomfort of being around others in the class. He then tried to launch a business, but lacked the endurance to keep up with the physical demands of this endeavor. VA Medical Center (VAMC) records indicated that the Veteran's last visit with his psychiatrist was in November 2011, at which time he was psychiatrically stable. He was on one or more psychotropic medications. He had been arrested for possession of marijuana in 2010, and was now serving a two-year probation sentence. Objectively noted were symptoms of depressed mood, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. On mental status examination, the Veteran was well-groomed and neatly dressed, and fully oriented. Eye contact was intermittent. He was cooperative in attitude. Overall, speech was normal for rhythm and rate, but was quiet. Psychomotor activity was notably slowed. His overall mood was depressed, with a restricted affect. Thought processes were linear, logical and goal-directed. There was no evidence of any perceptual disturbances, but the Veteran noted that he continued to struggle with paranoia and suspiciousness of others. He denied suicidal or homicidal ideation. Cognition appeared to be within normal limits. Insight, judgment and impulse control appeared fair. It was further observed with regard to employability that while the Veteran's primary reason for his not working was his heart condition, the Veteran's service-connected depression was of such severity as to cause sufficient impairment in his sleep, mood, motivation and ability to interact with others (most specifically during vocational rehabilitation, which he quit as a result), as to hinder his ability to retrain for a position that would provide him gainful employment that considered his physical limitations. Given the chronic nature of the Veteran's service-connected hepatitis C, which frequently exacerbated his depression, the Veteran was likely to continue struggling in this area. Therefore, it was the opinion of the VA examiner that the Veteran was unable to return to the workforce in either a physical or sedentary position. Analysis I. Evaluation of Major Depression Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating may be assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed 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 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A. From February 8, 2007 to August 23, 2012 Having thoroughly reviewed the evidence before it, the Board ascertains a sufficient basis in fact upon which to premise the award of a higher 70 percent initial evaluation for service-connected major depression, for the initial time period under review from February 8, 2007 through August 23, 2012. Essentially, there is appropriate indication, particularly when resolving reasonable doubt in the Veteran's favor (under 38 C.F.R. § 4.3), that during this timeframe the Veteran manifested occupational and social impairment with deficiencies in most areas, commensurate with a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. During the May 2007 examination, the examiner stated that the mental disorder signs and symptoms resulted in deficiencies in the areas of judgment (negatively biased, pessimistic), thinking (slowing, paucity of ideas with some thought blocking), and mood (low mood, frustrated, helpless and hopeless). Moreover, the Veteran was considered unable to function at a level consistent with his age due in large part to a mood disorder. The Board is well aware that during interim time periods of VA outpatient clinical evaluation, the Veteran's mood periodically seemed to improve, as did some of his other symptoms. Nonetheless, there is more than adequate indication from the VA examination findings alone that the Veteran's symptoms are closer to the type exemplified by assignment of a 70 percent evaluation, rather than the rating criteria for a 30 or 50 percent evaluation. The Board is also wholly aware that the Veteran's history of substance abuse has been found to play at least some role in his current mood disturbance. Generally, VA compensation is not reserved for disability incurred or worsened due to substance abuse, as this is deemed to constitute willful misconduct. See U.S.C.A. § 105; 38 C.F.R. § 3.301(d). See also VAOPGCPREC 7-99 (June 9, 1999). For purpose of adjudicating this claim, however, there is no reasoned medical basis upon which to plausibly separate the impairment due to service-connected disability from that which may involve substance abuse, and therefore all symptomatology shown must be attributed to service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (where it is not possible to separate the effects of a service-connected disability from any nonservice-connected conditions by competent opinion, all symptoms must be attributed to the service-connected disability). See also, Howell v. Nicholson, 19 Vet. App. 535, 540 (2006). Therefore, an initial 70 percent evaluation for major depression from February 8, 2007 to August 23, 2012 is warranted. Apart from this increased evaluation, the Board does not ascertain any basis for assignment of the next higher available 100 percent rating for major depression. The VA examiners in May 2007 and September 2008 stated that there was not total occupational and social impairment. In May 2007, the Veteran reported that he got along with his family, even though he did not keep in close contact with most. He was living with his son at that time. As such, the criteria for a 100 percent schedular rating are not met or more nearly approximated. Accordingly, a 70 percent evaluation, and not higher, is appropriate for the initial time period under consideration. B. Since August 24, 2012 The Board finds that the continuation of the assigned 70 percent evaluation for major depression is warranted from August 24, 2012, onwards. The primary source of evidence for evaluative purposes consists of the August 2012 VA examination report, which discloses minimal indication of any pronounced disability relatively approximating total occupational and social impairment. As the examination findings reflect, the Veteran continued to manifest a depressed mood, chronic sleep impairment, and some level of suspiciousness towards others. Significantly, however, objective evaluation revealed normal speech, normal thought processes, no perceptual disturbances, and denial of suicidal or homicidal ideation. The Veteran's overall treatment course was noted to be psychiatrically stable, with continued use of psychotropic medications. Nor for that matter did the Veteran demonstrate any symptoms commensurate with a 100 percent disability evaluation pursuant to Diagnostic Code 9411, such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Importantly, the VA examiner indicated that the Veteran did not have total occupational and social impairment as a result of his major depression. Therefore, the Board concludes that assignment of a 70 percent evaluation, and not higher, under provisions of the VA rating schedule remains the proper disposition. II. Entitlement to a TDIU prior to August 24, 2012 Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be rated as at least 60-percent disabling. Whereas, if there are two or more disabilities, at least one must be rated as at least 40-percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16(a) (2012). Disabilities resulting from common etiology or single accident or affecting both upper and lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met. Provided a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because this regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for this special extra-schedular consideration. The procedures for assignment of a total disability rating on an extra-schedular basis would require referral to the RO for further disposition. However, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extra-schedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). See Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the U.S. Court of Appeals for Veterans Claims (Court) has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). In this particular case at hand, the Veteran is trying to establish his entitlement to a TDIU prior to the currently assigned effective date of August 24, 2012. To begin with, the Veteran now meets the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), by way of his adjudicated 70 percent evaluation for major depression (prior to August 24, 2012), and 10 percent evaluation for hepatitis C. This meets the preliminary schedular TDIU criterion of a single disability ratable at 60 percent. The remaining dispositive issue is whether the Veteran is incapable of securing and maintaining substantially gainful employment as the consequence of service-connected disability. Given a comprehensive review of the record, and with due application of VA's benefit-of-the-doubt doctrine, the Board will grant a TDIU from February 8, 2007, up through the current date of assignment of August 24, 2012. In this regard, the Board considers the February 8, 2007 as the relevant date of claim for purposes of the Veteran's TDIU claim, inasmuch as it is also the effective date of service connection for the inextricably intertwined increased initial rating claim for major depression. See generally, Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) ("When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability."). Moreover, there is also evidence which substantiates that the Veteran was unable to participate in gainful employment as a result of his service-connected disabilities during this timeframe. The May 2007 VA examiner considered that the Veteran could not "perform at a level commensurate with his age due to reduced reliability and productivity" associated with a mood disorder. In August 2008, another VA treatment provider expressed a similar conclusion, though even more directly, indicating that the Veteran's depression was "considered so significant that it did not enable him to keep gainful employment for any length of time." The Board further observes that the Veteran has had sporadic participation in VA's vocational rehabilitation program and has not apparently completed a course of study, due at least in part to what he identified as symptoms of his mood disorder. There is sufficient competent evidence to support the conclusion that the Veteran is incapable of maintaining gainful employment at this point, with service-connected disabilities as the prominent cause. The Board resolves all reasonable doubt in the Veteran's favor on this point, including in regard to the potential impact, if any, of factors outside the ambit of service-connected disabilities upon occupational functioning. Hence, the criteria are met for a TDIU from February 8, 2007 to August 23, 2012. III. Conclusion The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's major depression presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest nor describe symptomatology outside of that criteria. The rating schedule is premised upon an evaluation based on occupational and/or social impairment, and the Veteran does not identify a mental health problem outside of this ambit. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In sum, the Board is granting the claim for increased rating of 70 percent for major depression as to the initial timeframe under review, but denying an increase after August 24, 2012. This determination takes into full account the potential availability of any further "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The Board is also granting a TDIU from February 8, 2007 to August 24, 2012. To the extent any greater level of compensation is sought, the preponderance of the evidence is against the claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A 70 percent initial evaluation, and not higher, for major depression is granted, from February 8, 2007 to August 23, 2012, subject to the law and regulations governing the payment of VA compensation benefits. A higher evaluation than 70 percent for major depression from August 24, 2012 onwards is denied. A TDIU for the time period from February 8, 2007 to August 23, 2012 is granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs