Citation Nr: 1322526 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-13 504 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for a depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to May 1957. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision of the RO that, in pertinent part, denied a disability rating in excess of 50 percent for service-connected depressive disorder; and denied entitlement to a TDIU. The Veteran timely appealed. In a February 2012 decision, the Board denied each of the Veteran's claims. The Veteran appealed the February 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Joint Motion for Partial Remand, the parties moved to vacate the Board decision in part and remand the issues listed above on the title page to the Board. The Court granted the motion. Thereafter, the case was returned to the Board. However, the issue of an increased rating for seronegative rheumatoid arthritis decided by the Board in February 2012 is not vacated and remains undisturbed. 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). FINDINGS OF FACT 1. The Veteran's depressive disorder is manifested by symptoms such as anxiety, depression, flat affect, sleep impairment, irritability, concentration problems, startle response, short- and intermediate-term memory problems, some spatial disorientation when traveling, and occasional panic attacks-all resulting in moderate social and occupational impairment. 2. The Veteran has not worked full-time since 1990, and part-time since 2001; he reportedly has completed two years of college, and has no additional training; he last worked as a clerk. 3. Service connection is in effect for depressive disorder, rated as 50 percent disabling; and for seronegative rheumatoid arthritis, rated as 40 percent disabling. The combined disability rating is 70 percent. 4. The Veteran's service-connected disabilities are shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 50 percent for a depressive disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through August 2009 and September 2009 letters, the RO notified the Veteran of elements of an increased rating claim and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. In each letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because each the Veteran's claims on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or VA's Appeals Management Center (AMC) has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claims on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). Moreover, the Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with Fletcher in mind. The Board has thoroughly reviewed all the evidence in the Veteran's paper claims file and electronic file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). A. Depressive Disorder The Veteran's service-connected depressive disorder has been evaluated as 50 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9434, pertaining to mood disorders. The actual criteria for rating psychiatric disabilities other than eating disorders are contained in a General Rating Formula. Under that formula, a 50 percent rating is assigned when there is 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. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of depression. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Private treatment records, dated in May 2008, show that the Veteran suffered from a number of depressive symptoms as a result of physical pain and limitations imposed on him by his service-connected seronegative rheumatoid arthritis. The treating psychologist described the Veteran's feelings of frustration and irritation, as well as experiencing depressed mood and problems with memory and concentration; and indicated that the Veteran's job choices were limited because of his physical limitations. The Veteran also reported trouble sleeping. Mental status examination at that time revealed that the Veteran was cooperative, dressed normally, and was soft spoken. His mood was dysphoric and his affect was blunted. He exhibited a limited range of emotion. The Veteran's thought process was somewhat slowed, and his speech was marked by depressive silences. There was no evidence of current suicidal or homicidal ideation. The May 2008 treating psychologist opined that the Veteran's symptoms of: depressed mood, diminished interest or pleasure in activities, insomnia, irritability, fatigue or loss of energy, and diminished ability to think or concentrate, caused significant impairment in his social, occupational, and personal functioning. In a follow-up visit in October 2008, the Veteran presented as more depressed. Global assessment of functioning (GAF) scores at the time, following clinical evaluations, ranged from 40 to 45. During a VA examination in November 2008, the Veteran reported being somewhat socially withdrawn; and that he stayed to himself, and was still married but "shaky." He reported that he cannot interact with his grandchildren, and had difficulties exercising, traveling, sleeping, concentrating, and had low motivation and was self-critical. He reported experiencing these symptoms daily. Examination in November 2008 revealed that the Veteran was appropriately dressed and cooperative. His psychomotor activity was lethargic and fatigued; his speech was hesitant, soft, or whispered. His affect was constricted, and his mood was depressed. He was able to do serial 7's, but could not spell a word forward and backward. The Veteran was oriented to person, time, and place; his thought process revealed a paucity of ideas, and his thought content revealed ruminations. There was no evidence of delusions, and no panic attacks; no homicidal or suicidal thoughts; and no obsessive/ritualistic behavior. The Veteran was able to maintain minimum personal hygiene. His activity level was limited, and he had poor attention at times while driving. His immediate memory and recent memory were moderately impaired. The Veteran reported that he retired from working in 1990, and that he did a few old jobs afterwards until severe arthritic pain caused him to stop. The November 2008 VA examiner found deficiencies in the Veteran's thinking (concentration issues); family relations (fragile relationship with wife, and limited social contacts); work (no recent work to determine capacity to complete tasks); and mood (depression). A GAF score of 51 was assigned. The report of a September 2009 VA examination reflects that the Veteran participated in psychotherapy sessions about every three months for treatment of depression, and that he took no psychiatric medications. Current symptoms, which were noted as occurring frequently, included moderately depressed mood; mild sleep disturbance; mild lack of motivation; and mildly decreased interest in activities. Following psychiatric examination, the examiner opined that the Veteran's depressive disorder remained essentially the same; and was not likely to impair him occupationally in sedentary or physical tasks other than to a mild degree. A GAF score of 51 was assigned. Private treatment records, dated in January 2010, show that the Veteran continued to experience significant depressive symptoms. He reported having worse pain and sleep problems in cold weather, and that he found the holidays stressful. He preferred being by himself, and was more irritable. The treating psychologist opined that there had been no progression in symptom alleviation since the Veteran's initial visit in 2008. A GAF score of 40 was assigned. VA records reveal that the Veteran presented to the Emergency Room for treatment of depression in January 2012, and that he underwent psychological evaluation in March 2012. He reported feeling more depressed in the past few months, while dealing with the separation from his wife. Records reflect assigned GAF scores ranged from 50 to 55 at that time. The Veteran underwent a private psychiatric evaluation in October 2012. He reported having four or five panic attacks per year, with each lasting at least a few minutes. He also reported sleeping an average of four hours nightly. The psychiatrist indicated that the Veteran startled easily, was hypervigilant, and could not tolerate anyone behind him. The Veteran also socialized infrequently. His recent memory was severely impaired, so much so that the Veteran could not remember what he read and he got lost when traveling. The October 2012 private psychiatrist indicated that the Veteran's working memory was 70 percent impaired; and that the Veteran experienced anger, sadness, and fear-without an understanding of why-approximately 30 percent of the time, which suggested that his prefrontal cortex was dysfunctional. The Veteran also felt depressed 60 percent of the time, with low energy and little interest in things; and he angered and became agitated easily. The private psychiatrist opined that the Veteran was moderately compromised in his ability to sustain social relationships, and was unable to sustain work relationships. Records reflect that medications were prescribed, and that the Veteran participated in cognitive behavior psychotherapy for twenty minutes every six weeks. Progress notes, dated in October 2012 and in January 2013, include assigned GAF scores of 35. The Veteran underwent a VA psychiatric examination in January 2013. The VA examiner noted that the Veteran experienced ongoing sadness, anhedonia, flatted affect, social isolation, difficulty concentrating, and irritability. A GAF score of 60 was assigned. The VA examiner opined that the Veteran's symptoms were best characterized as moderate, and as causing him moderate difficulty in social or occupational functioning. While the Veteran had suggested that his psychiatric symptoms were more debilitating, the VA examiner reasoned that the descriptions he provided of day-to-day functioning were more consistent with a GAF score of 60. For example, the Veteran reported a "so-so" relationship with his siblings; and that he still kept in contact with his adult children, primarily by phone, even though he and his wife have separated. The Veteran also described his panic attacks occurring more frequently now, approximately ten times per year. The examiner indicated that these were episodes of extreme irritability, rather than anxiety, although the Veteran did endorse mild anxious symptoms limited to his "heart beating a bit faster" and "shaking" which lasted three-to-four minutes. The Veteran also reportedly slept six hours a night "at most," and described a fairly restless night's sleep, and he took naps during the day. The Veteran reported having limited interests, and that he was not involved in any activities. He denied having any friends with whom he socialized, and described his mood as being "down." The Veteran also described some mild impairment in concentration and memory. Following mental status examination, the VA examiner noted that the Veteran's profile was fairly consistent with information gathered during the clinical interview and with behavioral observations. The Veteran's scores on the "Beck Anxiety Inventory" and the "Beck Depression Inventory" placed him in the "moderate anxiety" range and in the "moderate depression" range, respectively, with the caveat that the Veteran may have slightly exaggerated his responses. While the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" (DSM-IV), the assigned GAF score in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, it must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). Here, there are discrepancies among assigned GAF scores. The GAF scores assigned by the Veteran's private physicians have ranged from 40 to 45 in 2008 and 2010, to 35 in 2012. These GAF scores indicate serious symptoms of depression (e.g., suicidal ideation or severe obsessional rituals); and are indicative of major impairment in several areas, such as family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). The GAF scores assigned by VA examiners have ranged from 50 to 55 in 2008 and 2012, and to 60 in 2013. These GAF scores indicate moderate symptoms (e.g., flat affect, circumstantial speech, and occasional panic attacks); and are indicative of serious impairment in social and occupational functioning (e.g., no friends, unable to keep a job). In this case, the Veteran's manifestations include anxiety, depression, flat affect, sleep impairment, irritability, concentration problems, startle response, short- and intermediate-term memory problems, some spatial disorientation when traveling, and occasional panic attacks. However, the Veteran does not express suicidal ideation, display obsessional rituals which interfere with routine activities, exhibit illogical or obscure or irrelevant speech, or exhibit neglect for personal appearance or hygiene. The Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court noted in Mauerhan, without the examples provided in the rating criteria, differentiating a 50 percent evaluation from a 70 percent evaluation would be extremely ambiguous. Specifically, the Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified with assigned GAF scores. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the General Rating Formula, the appropriate equivalent rating should be assigned. Id. Here, the Board concludes that the Veteran's depressive disorder symptoms do not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as necessary to warrant a 70 percent rating. Nor does the Veteran exhibit total occupational and social impairment as contemplated for a 100 percent rating. With respect to the Veteran's occupational functioning and impairment, the Board observes that the Veteran retired from his job as a financial clerk in 1990. He then worked part-time as a financial clerk until 2001 and reported retiring because of physical problems, specifically seronegative rheumatoid arthritis and associated pain. Moreover, during a May 2004 VA examination, the Veteran reported that he was not interested in seeking employment, primarily because of his joint problems; and that he avoided prolonged walks, bending, or lifting. There is no indication in the record that the Veteran's depressive disorder results in marked occupational impairment, absent other physical limitations. While there is an October 2008 opinion that the Veteran is likely to experience a marked increase in his depressive symptoms due to stressors inherent in any work environment, the Board finds that based on the Veteran's work history he does not have deficiencies in work functioning as contemplated for a 70 percent rating or total occupational impairment as contemplated for a 100 percent rating. In this regard, the Board notes that the 50 percent rating currently assigned is in recognition of significant industrial impairment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As to the Veteran's social functioning and impairment, the Board observes that he prefers not to socially interact and reported being "socially withdrawn" in general, and is easily irritated when interacting with others. As the Veteran socializes infrequently and is separated from his wife, he still retains the ability to socialize in public. For example, he has reported maintaining contact with his adult children from time to time, and running errands occasionally. The Board acknowledges that both private physicians and VA examiners have opined that the Veteran is moderately compromised in his ability to sustain social relationships. The Board certainly is sympathetic to the social difficulties experienced by the Veteran and his family as a result of his depressive disorder symptoms; however, the Veteran does retain the ability to function in both the home and his community, albeit with assistance at times from one of his sons when needed. As such, while the Veteran may have significant social impairment due to his depressive disorder symptoms, the Board finds that based on the lay and medical evidence of record he does not have deficiencies in social functioning as contemplated for a 70 percent rating or total social impairment as contemplated for a 100 percent rating. In summary, the Veteran does not have deficiencies in social or occupational functioning as contemplated for a 70 percent rating or total social and occupational impairment as contemplated for a 100 percent rating. He does have deficiencies in these areas, but greater weight of the evidence demonstrates that it is to a degree as contemplated by the 50 percent rating currently assigned. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the current 50 percent schedular rating. His overall level of disability is equivalent to moderate impairment in social and occupational functioning. Some of the assigned GAF scores, in this case, could support an increased rating if taken alone. However, the actual reported symptoms and manifestations repeatedly noted in the record are commensurate with the degree of social and industrial impairment required for the assignment of the current 50 percent disability evaluation. The Veteran's speech is neither illogical, nor obscure, nor irrelevant. He is not in a near-continuous state of panic. He can function independently, and he does not experience hallucinations. Although he exhibits some impairment in attention and concentration, his thought process and communication is overall logical and coherent. He does not exhibit inappropriate behavior. His personal hygiene is appropriate. There is no objective evidence of disorientation. He does have moderate social impairment, but he has maintained relationships with some of his adult children. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected depressive disorder is adequate in this case. While examiners have noted the severity of the Veteran's depressive disorder, any functional impairment is contemplated in the General Rating Formula for rating psychiatric disabilities other than eating disorders. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected depressive disorder. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 50 percent disability rating. Here, the preponderance of the evidence is against granting an increased rating for the Veteran's depressive disorder, and thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In this case, the Veteran has completed two years of college education, and has had no additional education and training. He reportedly worked as a clerk full-time for the U.S. Post Office from 1957 to 1990. Service connection is currently in effect for a depressive disorder, rated as 50 percent disabling; and for seronegative rheumatoid arthritis, rated as 40 percent disabling. The combined disability rating is 70 percent. Hence, the Veteran meets the threshold percentage requirements for consideration of a TDIU. The remaining question, then, is whether the Veteran's service-connected disabilities render him unemployable. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. A VA examiner in May 2004 commented that the Veteran's seronegative rheumatoid arthritis is a chronic fluctuating disease-sometimes in remission, sometimes active up. The May 2004 examiner opined that the service-connected disability made the Veteran physically unfit for physical employment; and as for sedentary employment, the Veteran is mentally competent and, if interested in seeking employment, was likely able to perform the job. In May 2008, the Veteran's treating psychologist opined that the Veteran is considered permanently disabled and unemployable because he was limited in job choices; his irritability and depressed mood contributed to sporadic levels of productivity; his problems with concentration and memory made him unable to learn new tasks; and he was limited in his ability to initiate and sustain work or social relationships. In September 2009, a VA psychologist opined that the Veteran's depressive symptoms were as likely as not to reduce his reliability and productivity in either sedentary or physical employment. Here, the Board notes that neither the May 2008 treating psychologist nor the September 2009 VA psychologist described total occupational impairment. A May 2011 statement from the Veteran's former employer reflects that the Veteran voluntarily retired from employment in December 1990. In October 2012, the Veteran's treating psychiatrist opined that the Veteran was considered permanently and totally disabled, and unemployable because he was unable to sustain work relationships. A VA psychiatrist in January 2013 noted that the Veteran has not had any significant employment since he retired in 1990. Following examination of the Veteran, the VA psychiatrist was unable to render an opinion as to whether the Veteran is unemployable or would be capable of performing any work duties based on psychological evaluation. The VA psychiatrist noted that consultation with another physician or professional would not provide the requisite information to render an opinion, and stated that such a determination could be estimated imperfectly via a work-skills assessment and evaluation period. The most that the VA psychiatrist was able to conclude was that the Veteran's assigned GAF scores and his self-described day-to-day functioning were more consistent with someone exhibiting "moderate" impairments in social and occupational functioning. Again, the Board notes that total occupational impairment was not found. The Veteran underwent another VA comprehensive examination in April 2013. Functional assessments at that time showed that: the Veteran could only walk 50 yards at a time before stopping to rest; he could not climb a ladder; he could climb one flight of stairs at a time; he could not lift more than ten pounds above his head; he had difficulty reaching over his head; he could not kneel or squat; and he could only stand for five minutes at a time. In addition to these functional limitations, the April 2013 examiner opined that the Veteran's seronegative rheumatoid arthritis had no impact on sedentary employment. The Veteran has asserted that he is unemployable due to service-connected disabilities. To this extent, his statement is of some probative value. Significantly, the Board finds that the Veteran's mental health complaints have been corroborated by his treating psychologist and psychiatrist. The Board also finds the May 2004 VA examiner's opinion that the Veteran's seronegative rheumatoid arthritis is chronic and makes the Veteran physically unfit for physical employment, as well as the April 2013 VA examiner's assessment of current functional limitations, to be probative. While the April 2013 VA examiner appears to indicate that the Veteran could perform some marginal employment, the examiner did not discuss the impact of whether the Veteran's service-connected depressive disorder combines with his physical limitations to preclude employment. Rather, the April 2013 VA examiner found no current diagnosis of seronegative rheumatoid arthritis. Under these circumstances, and resolving doubt in the Veteran's favor, the Board concludes that his lay assertions combined with evidence of significant physical limitations, social isolation, and the opinion by the treating psychiatrist that the Veteran was unable to sustain work relationships due to depressive symptoms strongly suggest that the Veteran is unable to obtain or maintain gainful employment. Hence, TDIU benefits are awarded. 38 U.S.C.A. § 5107(b). ORDER A disability evaluation in excess of 50 percent for a depressive disorder is denied. Entitlement to a TDIU is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs