Citation Nr: 1416336 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 12-30 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a disability rating in excess of 50 percent for service-connected depression, with history of schizophrenia, undifferentiated type, hereinafter, depressive disorder. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from February 1945 to December 1945. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, mailed to the Veteran in February 2012, which denied his claim of entitlement to a disability rating in excess of 50 percent for depressive disorder. In January 2013, the Veteran and his spouse testified via videoconference before the undersigned Veterans Law Judge (VLJ), seated at the Board's Central Office in Washington, D.C. In March 2013, the Board issued a decision that granted an increased rating for depressive disorder. Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's March 2013 decision was identified as having been potentially affected by an invalidated rule relating to the duties of the VLJ that conducted the January 2013 hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, in September 2013, the Veteran requested only to have the prior decision vacated and a new one issued in its place. This decision satisfies that request. Review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, specifically, relevant VA treatment records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT During the appellate period, the Veteran's depressive disorder is manifested by deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as near-continuous panic or depression, impaired impulse control, spatial disorientation, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, and no more, for depressive disorder are met during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110(b)(2) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(b)(1), 3.400(o)(2), 4.1, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). An RO letter dated in December 2011, sent prior to the January 2012 rating decision on appeal, informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b). The Veteran was not provided notice of the diagnostic criteria under which he was rated. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently subsequently and remanded the Vazquez decision by the U.S. Court of Appeals for Veterans Claims (Court). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Specifically, the Federal Circuit held that only "generic notice" in response to the particular type of claim is required under 38 U.S.C.A. § 5103(a), rather than "veteran-specific" notice. Id. With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service-connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, the Federal Circuit vacated the earlier decision insofar as it requires VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence. Id. Thus, there was sufficient generic notice sent to the Veteran in December 2011. Regarding the duty to assist, the RO has obtained all relevant records adequately identified by the Veteran. The RO also provided the Veteran with a VA examination in December 2011. The Veteran's representative, in a November 2012 statement, asserted that the VA examination was inadequate on the basis that while VA treatment reports include notations indicating that the Veteran had poor insight and judgment, and without medication, he is delusional, such was not included in the VA examination report. Indeed, review of the VA examination report is silent for such; however, it is significant that the VA examination was conducted to identify the current severity of the Veteran's depressive disorder. There is no evidence that the examiner failed to include any reported or observed poor insight or judgment or a history of delusional thinking. There is no indication that the VA examination report is not complete or does not represent a sufficient mental status examination of the Veteran. The examiner simply recorded the symptoms with which the Veteran presented on the day of the examination, as is required. The Board will consider all medical and lay evidence in its adjudication of the Veteran's claim. In essence, all psychiatric symptoms reported during VA treatment dated during the appellate period will be considered. Thus, the Veteran is not prejudiced by the fact that the VA examiner did not find that he presented with poor insight or judgment, or that his medication was increased, or that without such medication, he was delusional; as notations of such, if present, will be part of the Veteran's VA treatment records. The examiner reviewed the claims file, considered the Veteran's relevant history, including his lay reports of his symptomatology, and described his disability in sufficient detail. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board thus finds that the December 2011 VA examination is adequate. A transcript of the January 2013 Board hearing has been associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ did not explicitly note the basis of the prior determination or note the elements of the claim that were lacking. However, there is no prejudice to the Veteran, as the VLJ, with the Veteran's representative, specifically elicited testimony from the Veteran and his spouse as to the symptoms of his depressive disorder warranting a higher disability rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Specifically, the VLJ elicited testimony from the Veteran as to his psychiatric treatment history and sources of records. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor have they identified any prejudice in the conduct of the hearing. See also September 2013 Board letter to Veteran. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Therefore, VA has fulfilled the duty to assist the Veteran in obtaining evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c). The duty to notify and assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); Canlas v. Nicholson, 21 Vet. App. 312, 317 (2007); Forcier v. Nicholson, 19 Vet. App. 414, 421-22 (2006); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that there is no basis for a remand when no benefit would flow to the veteran). Therefore, because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation under 38 C.F.R. § 4.1, where service connection has already 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). Additionally, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed; in this case, November 29, 2010, one year prior to the Veteran's November 29, 2011, claim, until VA makes a final decision on the claim. See Hart, supra; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). The Veteran's depressive disorder has been rated as 50 percent disabling under DC 9411 during the appellate period. Under DC 9411, a 50 percent disability rating is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted where the psychiatric condition produces 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. A 100 percent disability rating is warranted where there is total occupational or 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, DC 9411. The psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Under DSM-IV, a GAF score of 41-50 generally reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, of school functioning (e.g., no friends, unable to keep a job). A GAF score 51-60 generally reflects 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 coworkers). A score of 61-70 generally reflects mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). VA treatment records dated in March 2011 indicate that the Veteran reported that he was doing very well on his medications and hoped to get back up to his camp soon, as it had been a long winter. His mood and appetite were doing very well, and he denied depression and crying spells. He was alert and oriented in all spheres and presented with a euthymic mood. His affect was open and friendly. There were no homicidal or suicidal ideations, and no delusions or gross psychosis noted. VA treatment records dated in August 2011 indicate that the Veteran presented in the same fashion, and reported that he had planted a small garden and that he enjoyed going with his wife to the senior center to eat. VA treatment records dated in October 2011 indicate that the Veteran presented in the same fashion, and his medication was decreased. The Veteran underwent VA examination in December 2011. He complained of a depressed mood, daily and continually, without knowledge of particular factors resulting in such. He complained of "quite a bit" of nervousness, without identifying any precipitating factors. He complained of crying spells "once in a while" and some middle insomnia, most often caused by frequent urination. He complained of hypersomnia, and reported that he slept from ten to twelve hours each day. He complained of decreased interest in sex and reported that he had lost interest in hunting and fishing and did not want to go anymore. He denied appetite changes or suicidal ideation. He reported that was in bed quite a bit and spent time sitting on the porch in the sunshine, and attributed such to advancing age. He complained of some difficulty concentrating, but reported that he was generally capable of completing tasks. During the examination, the Veteran reported that he currently lived with his wife of 43 years, and that they got along well, without fighting. He reported that he and his wife went to a senior center about daily for lunch. He noted that he had one son who lived close to him, and that he saw him several times each week; and that he had one son who lived farther away, and that he saw him a couple of times each year. He reported that he had one sister who lived close to him, and that he did not see her very often; and that he had one close friend outside of the family with whom he had regular contact. The examiner noted the Veteran's prescription medication regimen. Mental status examination in December 2011 revealed a depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner concluded that the Veteran's depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and concentration. The examiner diagnosed the Veteran with depressive disorder, not otherwise specified, and assigned him a GAF score of 60. VA treatment records dated in January 2012 indicate that the Veteran reported that he was doing very well on his medications, and that he and his wife were going out to eat that day. The couple inquired about a trial of erectile dysfunction medication. His mood and appetite were doing very well, and he denied depression and crying spells. He was alert and oriented in all spheres and presented with a euthymic mood. His affect was open and friendly. There were no homicidal or suicidal ideations, and no delusions or gross psychosis noted. VA treatment records dated in March 2012 indicate that the Veteran presented in the same fashion. VA treatment records dated in May 2012 indicate that the Veteran's wife reported that the Veteran was doing well with his medications. His medication was increased. He presented in the same fashion. Also, his thought processes were rational and goal-directed, and his content of thought was within normal limits. He demonstrated fair insight and judgment and decision-making skills, normal speech, intact cognition, and his perception was based in reality. At the time of his June 2012 Notice of Disagreement (NOD), the Veteran reported that he experienced nightmares and was subject to periods of depression and took two medications for such. In his October 2012 Substantive Appeal, the Veteran asserted entitlement to a 70 percent disability rating for his depressive disorder. He reported that he experienced periods of serious depression, and that he sat in his glider all day, drinking coffee. He reported that while he is physically able to do so, he can no longer garden, hunt, or fish. During his January 2013 Board hearing, the Veteran complained of worsening depression over the last few years. He was tearful at the hearing, and reported episodes of sadness. He complained of periods of anxiety, and daily panic attacks. He complained of lack of concentration and reported that he could only read the headlines of newspapers. He noted that he intended to speak to his VA treatment providers about increasing his medications. The Veteran's wife reported that while the Veteran still drove his truck, he got lost one year prior, on his way home, in a small town that he had known his whole life. She reported that he frequently forgot what he was doing around the house and that his symptoms had increased over time. She noted that while the Veteran was calm with her, sometimes others pushed him over the edge and he often left a situation for an undetermined period of time. She reported that in such circumstances, the Veteran was irritable, but not angry; and removing himself from the situation helped him avoid anger. She reported that he had occasional contact with younger family members, including fishing with his son and grandson; and that the Veteran watched television and sat on the porch all day. She reported that while he used to go shopping with her, he now refused to do so. As discussed above, a 70 percent rating is warranted where the psychiatric condition produces 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. 38 C.F.R. § 4.130, DC 9411. After considering all the evidence of record, specifically, the testimony of the Veteran and his spouse during the Board hearing, the Board finds that the overall disability picture for the Veteran's depressive disorder most closely approximates a 70 percent disability rating during the appellate period. His symptoms include: continuous depressed mood; nervousness; crying spells; hypersomnia; decreased interest and withdrawal in social activities; difficulty concentrating; confusion; mild memory loss; nightmares; tearfulness; sadness; daily panic attacks; and irritability. As the Veteran's spouse reported that he got lost on his way home, there is evidence of spatial disorientation; and the Veteran has described leaving situations he finds stressful before he becomes angry. While there is no evidence that his depression and panic attacks affect his ability to function independently, appropriately and effectively, it is significant that such do occur daily. Thus, the type and degree of the Veteran's symptoms rise to the level of such contemplated by the regulatory criteria warranting a 70 percent disability rating. 38 C.F.R. § 4.7. The Veteran has been assigned a GAF score only once during the appellate period, during his December 2011 VA examination, at which time he was assigned a GAF score of 60. As discussed above, a GAF score 51-60 generally reflects moderate symptoms. (DSM-IV). The Veteran's GAF score demonstrate moderate symptoms, usually more indicative of less than a 70 percent disability rating. However, the Board notes that an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995). There is no evidence that the type and degree of the Veteran's symptoms rise to the level of such contemplated by the regulatory criteria warranting a 100 percent disability rating. There is no evidence of total occupational or social impairment due to symptoms 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. 38 C.F.R. § 4.130, DC 9411. While the Veteran and his spouse have reported confusion and lack of concentration, and reported that he got lost on the way home; there is no medical or lay evidence of symptoms such as gross impairment in thought processes or communication, disorientation to time or place, or severe memory loss. There is no medical or lay evidence of persistent delusions or hallucinations, inappropriate behavior, danger to self or others, or deficiencies in self-care. Thus, a 100 percent disability rating is not warranted. In this regard, as discussed above, the Veteran's representative, in his November 2012 statement, asserted that VA treatment reports include notations indicating that the Veteran had poor insight and judgment, and without medication, he is delusional. Careful review of the VA treatment records associated with the claims file dated during the appellate period, maintained in the Virtual VA paperless claims processing system and not associated with the physical claims file, are silent for such. There are no VA treatment records dated during the appellate period associated with the physical claims file. It is not clear if the Veteran's representative was mistaken or was referring to VA treatment records dated prior to the appellate period. In any event, poor insight and judgment are contemplated by the 50 percent disability rating already assigned to the Veteran, and there is no evidence of persistent delusions, or similar symptoms rising to the level of such contemplated by the regulatory criteria warranting a 100 percent disability rating. Significantly, the Veteran has not reported delusions, nor did he or his spouse offer testimony regarding such during his Board hearing. In sum, the Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505. Considering all applicable rating criteria, the Board finds that during the entire appellate period, the level of impairment presented by the Veteran's depressive disorder warrants a 70 percent rating, and no higher. Further, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability, productive of the psychiatric symptoms reported by the Veteran and recorded during VA treatment and examination; manifestations that are specifically contemplated in the rating criteria. Such symptoms include: continuous depressed mood; nervousness; crying spells; hypersomnia; decreased interest and withdrawal in social activities; difficulty concentrating; confusion; mild memory loss; nightmares; tearfulness; sadness; daily panic attacks; irritability; and confusion. The Veteran has not reported, and there is no medical evidence of symptoms outside of the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's depressive disorder and referral for consideration of an extraschedular rating is not warranted. Lastly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable. In this regard, while the Veteran is not currently employed, he has not asserted during the appellate period that his depressive disorder renders it impossible to follow a substantially gainful occupation. Therefore, the Board finds that further consideration of a TDIU is not warranted. ORDER A disability rating of 70 percent, and no more, for depressive disorder is granted during the entire appellate period, subject to the laws and regulations governing monetary awards. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs