Citation Nr: 1340808	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO. 12-17 027	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel








INTRODUCTION

The Veteran served on active duty from December 1985 to December 1989.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for major depressive disorder and assigned a disability rating of 50 percent.

During the pendency of this appeal, the Veteran filed a formal claim for TDIU in March 2013, and proper notice was sent to her on November 2012. The claim was denied in a February 2013 supplemental statement of the case. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran asserts that she is unemployable due to her service-connected disabilities and the issue has been adjudicated by the agency of original jurisdiction, the issue of a TDIU is before the Board.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's major depressive disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking, or mood; but not by total occupational and social impairment.

2. The Veteran's major depressive disorder does not present an exceptional or unusual disability picture.

3. The Veteran has at least one disability rated at 40 percent or more and a combined rating of 70 percent or more, and the Veteran is unable to obtain or maintain substantially gainful employment due to her service-connected disabilities when considering her education, special training, and employment history.


CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent, but no higher, for major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2013).

2. The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With respect to the issue of the initial rating, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

With respect to the claim of TDIU, in light of the fully favorable decision on that issue, further discussion of notice compliance is unnecessary. See Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. Appropriate efforts were made to obtain all private medical records identified and authorized for release, and all obtained records have been associated with the claims file. As such, the Board finds VA has satisfied its duty to assist with the procurement of records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in January 2011 and December 2012. The examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, and conducted a thorough medical examination of the Veteran. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for an initial rating in excess of 50 percent for major depressive disorder. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

As stated above, the decision with respect to TDIU is fully favorable, and therefore further discussion of VA's duty to assist with respect to that issue is unnecessary. See Mlechick, 503 F.3d 1340.

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Merits of the Claim

The Veteran contends she is entitled to an initial rating in excess of 50 percent for her service-connected major depressive disorder and TDIU. The Board finds that an initial rating of 70 percent, but no higher, is warranted and that the criteria for TDIU have been met.

A. Schedular Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period). 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id.

The Veteran's major depressive disorder is currently rated at 50 percent under Diagnostic Code 9434. 38 C.F.R. § 4.130. Major depressive disorder is rated using the General Rating Formula for Mental Disorders (General Formula). 

Under the General Formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such 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. Id.

A 100 percent rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. 

Global Assessment of Functioning (GAF) scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders 32 (4th Ed. 1994) [hereinafter DSM-IV]).

For the reasons outlined below, the Board finds that an initial rating of 70 percent, but no higher, is warranted in this case, as the evidence shows that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, family relations, thinking, and mood.

The Veteran has near-continuous depression that affects her ability to function independently, appropriately, and effectively. The Veteran stated during both her January 2011 and December 2012 VA examinations that she is depressed almost all of the time and as a result cannot motivate herself to do things such as household chores, which has resulted in her husband having to assist her with them. A June 2010 private treatment record notes that this lack of motivation applies to accomplishing tasks generally, and that even when the Veteran is motivated enough to start a task, she is generally unable to concentrate on that task long enough to finish it. That record further indicates that the Veteran has difficulties making decisions and forgets words due to a slowed thought process, which was also noted in both VA examinations. In the December 2012 VA examination, the Veteran stated that her lack of motivation essentially results in her just sitting at home all day doing nothing.

The evidence indicates the Veteran has difficulty adapting to stressful situations, including work or work-like environments. The December 2012 VA examiner noted that the Veteran retired in February 2012 due to a combination of her back pain and memory and concentration problems caused by her depression. During the January 2011 examination the Veteran stated that she was no longer able to work as effectively as she had been previously. She indicated she was increasingly unable to concentrate on her work, resulting in an increasing number of mistakes that would normally not have occurred. Further, due to her memory problems she would have to read instructions or documents multiple times in order to remember what they said. Her lack of motivation prevented her from seeking out other assignments while at work, and she described being in a "standstill" while at her job. She also noted that she had trouble getting to work on time and generally no longer wanted to go at all, even though she used to enjoy going. The June 2010 private treatment record noted that while the Veteran generally refused to interact with others, this was particularly true with respect to her coworkers.

The Veteran is unable to establish and maintain effective relationships. The Veteran has consistently reported that she has essentially no friends as she has avoided contact with them and would refuse to answer the phone when they would call. She stated that she does not attend family events or church due to a lack of motivation, even though she has a desire to attend. While she will occasionally go out to a restaurant with her husband, she reported these occasions are increasingly rare as she usually is either not motivated to go out or too fatigued to do so. She stated that she is no longer close with her son. The Veteran's June 2010 private medical record also reflects notations of the Veteran's desire isolate herself from others and her refusal to socialize with friends, family or coworkers.

The evidence indicates that the Veteran has impaired thinking processes and mood. Both the January 2011 and December 2012 VA examiners noted that the Veteran's thought processes appeared to be slowed, and that she would take a long time to answer questions either in verbal or written form. Both examiners also noted that the Veteran appeared lethargic and depressed during the examinations. As stated above, the Veteran reported that she is unable to motivate herself to either socialize or accomplish things during the day. The Veteran's private medical records also contain several notations indicating depressed mood and slowed thought processes, as well as difficulties with motivating herself to accomplish tasks. 

In both the VA examination reports and the private medical records, the Veteran reported impaired her family relationships. She indicated that her relationship with her husband was okay, but she could not think of anything that she enjoys doing with her husband. She stated that he often becomes irritated because she is either too tired or not motivated enough to go out and do things. She also reported being increasingly distant from her son and that she refuses to attend events involving extended family. The Veteran's private treatment records also reflect a refusal to socialize with family, noting that the Veteran prefers to isolate herself at home.

The Veteran also has impairments with respect to her work. The Veteran stated in her January 2011 VA examination, prior to her resignation in February 2012, that her disorder was affecting her ability to work. Specifically, she stated that her major depressive disorder made it difficult for her to concentrate, which resulted in her making mistakes that she normally would not make. She also noted that it was difficult to remain focused on her tasks, she was not motivated to do well at work, and that she had trouble getting to work on time. She also noted that she no longer wants to go to work at all, even though she used to enjoy going. 

Finally, the Veteran was assigned GAF scores of 55 during her January 2011 and December 2012 VA examinations. However, private medical records reflect GAF scores of 38 in June and October 2010, 35 in December 2012, and 40 in March 2013. GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV for rating purposes). GAF scores ranging from 41 to 50 reflect more serious symptoms (e.g., suicidal ideation, severe obsessional rituals) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g. speech is at times illogical obscure, or irrelevant, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). Id. 

In this case, the Board finds that the GAF scores in the private records are entitled to more weight in determining the severity of the Veteran's disability. The Veteran complained in her January 2011 and December 2012 VA examinations that she no longer has any friends because she continuously avoided them and refused to take their phone calls. She has also reported not being close with her only son and described her relationship with her husband as being okay, although she could not name an activity that she enjoys doing with him. She reported being depressed continuously, which leaves her unmotivated to accomplish tasks or socialize with friends and family. Further, the Veteran reported that due to her depression she was frequently late for work and would make careless errors, which contributed to her decision to resign from her job in February 2012. Based on these statements, the private GAF scores are more reflective of the severity of the Veteran's condition, and therefore are entitled to more probative weight than those provided by the VA examiners. As the more representative GAF scores are in the range of 31 to 40, they are consistent with the level of severity of the symptoms provided for the 70 percent rating level, as the Veteran has a moderate to severe impairment with respect to social functions, such as no friends, but is not totally impaired.

Based on this evidence, the Board finds that the Veteran's disability picture more nearly approximates that contemplated by the 70 percent rating. See 38 C.F.R. § 4.7. The Veteran has impairments in most areas as a result of her service-connected disability. Although she does not have several of the listed symptoms provided with a 70 percent rating, the provided symptoms are not to be treated as a checklist when determining what rating is appropriate. Mauerhan, 16 Vet. App. at 442. Therefore, a rating of 70 percent, but no higher, is warranted.

A rating of 100 percent is not warranted because the preponderance of the evidence is against a finding that the Veteran has a total occupational and social impairment. There is no medical or lay evidence indicating that the Veteran has a gross impairment in thought processes or communication. In her January 2011 and December 2012 VA examinations, the examiners both noted that the Veteran seemed to process questions slowly, but did not note this as being a gross impairment. Further, both examiners noted that the Veteran had normal or unremarkable speech patterns. The Veteran's private records are silent with respect to any gross impairment in cognitive processes of communication outside of the notation that they were slowed, and the Veteran has not made any lay statements indicating that she suffers from a gross impairment.

There is not a persistent danger that the Veteran will hurt herself or others. The Veteran stated in both of her VA examinations that she has imagined what it would be like to no longer be alive, and a private record from December 2012 noted that she feels suicidal at times. However, the Veteran specifically denied any suicidal or homicidal ideation in both of the VA examinations. There is no evidence indicated that the Veteran has any suicidal intent or has engaged in any planning. The Veteran has no prior instances of violence against either herself or another person. Further, she has not made any lay statements indicating that she is a persistent danger to either herself or others.

The Veteran's major depressive disorder does not result in an inability to perform activities of daily living, such as the maintenance of minimal personal hygiene. Both VA examiners noted that the Veteran was well-groomed and presentable during her examinations, and her private medical records do not contain any indication that the Veteran is not able to perform basic tasks such as maintaining personal hygiene. The Veteran stated during her VA examinations that she is somewhat limited when it comes to certain household chores, but also stated that she is able to do other chores, including preparing food for herself and washing clothes. Based on this evidence, the Veteran's limitations when it comes to daily living do not rise to the level of severity contemplated by a 100 percent rating. 

The Veteran does not have memory loss so severe that she forgets information such as the names of close relatives or her own name. Both VA examiners and her private treatment records indicate some mild memory impairment. The Veteran complained in the VA examinations of forgetting where she was going when driving somewhere, or forgetting why she went into a room. She also reported having to read things multiple times in order to remember them and not being able to concentrate on television shows. While the evidence shows that the Veteran is experiencing difficulties with her short- and long-term memory, these difficulties do not rise to the level of severity contemplated by a 100 percent rating. The Veteran has not reported being unable to remember core facts such as her own name, the names of close family members, or her own occupation. As such, the Veteran's current memory difficulties do not rise to the level of a 100 percent rating.

The Veteran does not suffer from persistent delusions nor is she disoriented to place or time. Neither the VA examination reports nor her private medical records indicate that the Veteran suffers from any delusions or hallucinations. Further, both the VA examiners and the private medical records consistently note that the Veteran was oriented to time and place during the examinations. The Veteran has not made any statements indicating that she experiences hallucinations or delusions or that she has difficulty with orientation as to time or place. Finally, the Veteran does not suffer from a total occupational and social impairment. The Veteran stated during her examinations that she has been married to her husband for approximately 17 years and that their relationship was okay. The Veteran also still has a relationship with her son, although she has described it has not being as close as it was when he was younger.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally, staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505.  Therefore, a 70 percent rating is warranted.

B. Extraschedular Rating

Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.

Neither the first nor second Thun element is satisfied here. The Veteran's service-connected major depressive disorder is manifested by signs and symptoms such as flattened affect, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule as part of the General Rating Formula for Mental Disorders (General Formula). See 38 C.F.R. 
§ 4.130, Diagnostic Code 9434. The General Formula contemplates varying degrees of social and occupational impairment based on a wide range of symptomatology, such as flattened affect, memory loss, disturbed mood, difficulty adapting to stressful situations, and suicidal ideation. See id.

Given the variety of ways in which the rating schedule contemplates occupational and social impairment due to a mental disorder, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking, or mood, and by symptoms such as an inability to adapt to stressful situations, an inability to establish and maintain effective relationships, and near continuous depression that affects her ability to function independently, effectively, and appropriately. In short, there is nothing exceptional or unusual about the Veteran's major depressive disorder because the rating criteria reasonably describe her disability level and symptomatology. Thun, 22 Vet. App. at 115.

With respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that her major depressive disorder has caused marked absence from work or has resulted in any hospitalizations. Therefore, the Veteran's service-connected major depressive disorder does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if her disability picture was exceptional or unusual, referral would not be warranted.

C. TDIU

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15.

TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25.

If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.

In this case, the Veteran meets the threshold requirements for TDIU. The Veteran is currently service-connected for major depressive disorder at 70 percent (as granted herein), migraine headaches rated at 30 percent, a chronic cervical strain rated at 10 percent, and chronic cervicitis at a noncompensable rating. These disabilities result in a combined rating of 80 percent. See 38 C.F.R. § 4.25. Since the Veteran has a single disability rated at 40 percent or higher, i.e. major depressive disorder, and a combined rating of 70 percent or higher, the threshold requirements of TDIU are met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

With the threshold requirements satisfied, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. In determining whether the Veteran is capable of obtaining and maintaining gainful employment, the Board must consider the Veteran's work history, education, and any special training. In this case, the Veteran has been unemployed since February 2012, prior to which she worked as a claims intake specialist for 18 years. No other employment was listed. The Veteran has a Bachelor of Arts degree in sociology, and there is no evidence indicating the Veteran has received any type of special training.

In addition to the Veteran's work and education history, several medical opinions are included in the claims file. In December 2012, the Veteran underwent a VA gynecological conditions examination and a mental health examination. The examiner conducting the gynecological examination opined that the Veteran's migraine headaches, cervical strain, and cervicitis did not render her unemployable. The mental health examiner stated that it was beyond the scope of his practice to opine as to whether the Veteran's major depressive disorder rendered her unemployable, but provided common ways in which depressive disorders affect occupational functioning. Both opinions were rendered by competent examiners and nothing in the record indicates that either examiner is not credible, and as a result both opinions are adequate for Board purposes. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312.

The Veteran also submitted opinions from a private physician from June 2010 and December 2010. In the June 2010 opinion, the private physician stated that the Veteran's memory and concentration problems prevent her from being able to effectively learn new tasks, and that the chronic pain from her migraines and cervical strain interferes with her ability to be productive and reliable at work. Further, the physician stated that her isolating behaviors, irritability due to pain, and mood swings limit the Veteran's ability to initiate or sustain work or social relationships. As a result, the private physician determined that the Veteran was totally disabled as a result of her service-connected disabilities. In the December 2010 opinion, the physician reiterated the fact that the Veteran's inability to sustain social and work relationships due to her major depressive disorder and pain renders her totally disabled. As with the VA examinations, there is no indication that the private physician was not both competent and credible, and as a result the opinions are adequate for Board purposes. See Rodriguez-Nieves, 22 Vet. App. at 302-05; Barr, 21 Vet. App. at 312.

In weighing the private opinions and VA opinions, the Board finds that the private opinions are entitled to more weight. The VA opinions did not take into account the effect of the disabilities in the aggregate on the Veteran's employability. The gynecological examiner did not consider the effect of the major depressive disorder in concert with the physical disabilities in rendering his opinion. The examiner also addressed each physical disability individually, stating that each "in their totality" did not render the Veteran unemployable. Thus it is unclear whether the gynecological examiner took into account the aggregate effect of all the physical disabilities when rendering his opinion. 

The mental health examiner refused to opine on the subject of employability at all, stating that it was outside the scope of his practice to opine as to the employability of an individual. As such, neither examiner rendered an opinion that looked at the effect of all of the Veteran's service-connected disabilities on her ability to obtain and maintain gainful employment. The private opinion, on the other hand, took into account the effect of both the major depressive disorder and the pain experienced as a result of the migraines and cervical strain in rendering an opinion with respect to employability. As the private opinion is based on a more complete set of facts, it is entitled to more probative weight on the issue of entitlement to TDIU. Therefore, as the evidence of record shows that the Veteran is unable secure or follow substantially gainful employment due to her service-connected disabilities, a grant of TDIU is warranted in this case. 38 C.F.R. §§ 3.341, 4.16, 4.19.



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ORDER

Entitlement to an initial rating of 70 percent, but no higher, for major depressive disorder is granted, subject to the laws and regulations controlling the award of monetary benefits.

Entitlement to TDIU is granted, subject to the laws and regulations controlling the award of monetary benefits.



______________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs