Citation Nr: 1507762 Decision Date: 02/23/15 Archive Date: 02/26/15 DOCKET NO. 08-33 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected hypertension. 2. Entitlement to a rating in excess of 50 percent for service-connected depression. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 through February 1996. This case comes before the Board of Veterans' Appeals (the Board) on appeal from of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied an increased rating for depression in May 2010, and denied an increased rating for hypertension in June 2007. The Board notes that the Veteran submitted multiple VA Form 9 Substantive Appeals for the issue of an increased rating for service-connected depression that were dated May 6, 2014, which is within the two month period following the March 2014 Statement of the Case (SOC) issued with regard to that claim. While none of these appeals contained a date stamp on the document themselves, documents submitted around the same time as this appeal are date stamped with a May 2014 stamp. The Veteran also indicated in a May 2014 letter that he had received confirmation of VA's receipt of his appeal. Therefore, the Board accepts this Form 9 and the issue is currently before the board. The Board also notes that in May 2013, the agency of original jurisdiction continued a noncompensable rating for otitis media. In correspondence in January 2014, within a year of the rating decision, the Veteran submitted a Notice of Disagreement regarding the initial rating. Typically, when there has been an initial RO adjudication of a claim and a Notice of Disagreement has been filed as to its denial, the appellant is entitled to a Statement of the Case (SOC), and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). However, in this case, in response to the Veteran's NOD, the RO issued an April 2014 letter acknowledging the NOD and explaining the different appeal options. The RO subsequently ordered a VA examination in conjunction with the issue. Thus, as the RO has acknowledged receipt of the NOD, and indeed undertaken further development of the issue, this situation is distinguishable from Manlincon, where a NOD had not been recognized. As the RO is properly addressing the NOD, no action is warranted by the Board. FINDINGS OF FACT 1. Hypertension has been manifested by diastolic pressure readings predominately below 100 and by systolic pressure readings predominately below 150 throughout the entire appeal period. 2. The Veteran's depression has been manifested by symptoms such as near continuous depression affecting the ability to function independently, appropriately and effectively, and inability to establish and maintain effective relationships, causing occupational and social impairment with deficiencies in most areas. 3. There is no evidence of gross impairment in thought processes or communication; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation or own name; or other symptoms on par with the level of severity contemplated by a total rating. 4. The Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2014). 2. The criteria for a disability rating of 70 percent, but no higher, for depression have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2014). 3. The criteria for entitlement to a TDIU have been met. 38 C.F.R. §§ 3.340, 4.16(a), (b) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations The Board remanded the matters of hypertension and TDIU in June 2012. The Board specifically instructed the agency of original jurisdiction (AOJ) to obtain outstanding pertinent medical records, provide the Veteran with an examination, and to readjudicate his claims. Pursuant to the Board's remand, outstanding VA treatment records were associated with the Veteran's electronic file, he was afforded an examination in June 2014 for his hypertension, and his claims were readjudicated in the supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In December 2006, fully adequate notice was provided regarding the type of evidence needed to substantiate the increased rating claim for hypertension, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). In November 2011, the Veteran was provided the same type of notice regarding his claim for an increased rating for service-connected depression. In light of the full grant of the benefit sought as to the issue of a TDIU, any error in providing appropriate notice or assistance would be harmless error. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has also been medically evaluated in conjunction with his claims for hypertension and depression. The VA examiners recorded the Veteran's current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The duty to assist does not require that a claim be remanded solely because of the passage of time if an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). Furthermore, the evidence of record does not suggest that there has been a worsening of hypertension symptoms since the last VA hypertension examination. The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also, the Board observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2014). The Veteran did not request a hearing before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1 , 4.2, 4.7 (2014). In general, all disabilities, including those arising from a single disease entity, are rated separately; however, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2014). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he or she should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). While the Veteran's entire history is reviewed when assigning a disability evaluation, 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 (1994). 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 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Board will consider whether further staged ratings are appropriate. Increased Rating for Hypertension The Veteran essentially contends that his hypertension is more severe than contemplated by the current 10 percent evaluation. Diagnostic Code 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension) provides a 60 percent rating for diastolic pressure predominantly 130 or more, and a 40 percent disability rating for diastolic pressure is predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2014). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2014). The Veteran was afforded a VA examination in January 2007. His blood pressure readings were 132/110, 158/108, and 132/100. August 2007 records from Florida Northeast Cardiovascular Center show the Veteran's blood pressure was 142/88. In April 2008, the Veteran was seen at the Mayo Clinic with a blood pressure of 120/70. Later that month he was seen with a blood pressure of 138/84. The examiner noted the Veteran had a long-standing hypertension with symptoms of fatigue and exertional dyspnea. In May 2008, the Veteran sent in a statement that his service-connected hypertension had escalated to the point that he had been diagnosed with heart failure by a cardiologist with the Mayo Clinic. He stated he was constantly short of breath and fatigued. The Veteran's October 2010 VA Form 9 reasserts the same symptoms of shortness of breath and fatigue due to medication and heart failure. In July 2012, the Veteran's blood pressure at the Mayo clinic was 156/98. In January 2013, the Veteran's blood pressure was 150/93. July 2013 Mayo Clinic records regarding hypertension noted a "high reading" despite heart medication. A June 2014 VA examination showed that the Veteran had three readings of a blood pressure of 133/87. As demonstrated above, medical records show that the Veteran's diastolic blood pressure readings ranged from 70 and 110. While one blood pressure reading taken during the applicable period demonstrated a diastolic blood pressure of 110, most of the readings were below 100. Additionally, these records show that systolic pressure ranged between 120 and 158. At no time was systolic pressure shown to be 200 or greater; in fact, all but two readings reported were lower than 150. Therefore, the criteria for a 20 percent rating for hypertension have not been met. See supra 38 C.F.R. § 4.104, Diagnostic Code 7101 (2014). The Board has not overlooked the Veteran's statements with regard to the severity of his disability. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing dizziness and dyspnea and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran is not competent to state whether those symptoms are attributable to his hypertension or hypertension medication, as opposed to one his other disabilities or medications. Notably, service connection is already in effect for cardiomyopathy as secondary to hypertension. A rating is in effect pursuant to 38 C.F.R. § 4.104 Diagnostic Code 7007, which specifically contemplates the heart symptoms of dyspnea, fatigue, angina, dizziness, or syncope. Therefore, the Veteran is receiving compensation for a heart disability manifested in part by these symptoms. To compensate him twice for these symptoms would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. In reaching this determination, the Board has considered whether, under Hart a higher rating might be warranted for any period of time during the pendency of this appeal. See Hart, supra. However, as stated above, while one blood pressure reading taken during the applicable period demonstrated a diastolic blood pressure of 110, this was an isolated finding; most of the readings have consistently been below 100. Similarly, all but two systolic pressure readings reported were lower than 150. The severity of the Veteran's hypertension has remained relatively consistent throughout the appeal period. Therefore, staged ratings are not appropriate in this case. In summary, the competent evidence does not demonstrate that a schedular rating in excess of 10 percent is warranted for service-connected hypertension under either the former or the current schedular criteria at any time during the applicable period on appeal. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration of Hypertension The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2014); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Id. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2014). The Board finds that referral for extraschedular consideration is not warranted. The manifestations of the Veteran's service-connected hypertension are contemplated and reasonably described by the rating criteria under 38 C.F.R. § 4.104a, Diagnostic Code 7101 (2014). In this regard, the Veteran's hypertension has been manifested by diastolic pressure readings predominately below 100 and by systolic pressure readings predominately below 150 throughout the entire appeal period. This type of disability picture is specifically addressed in the rating criteria set forth in the above Diagnostic Codes. To the extent that the Veteran claims symptoms of dizziness and dyspnea, as stated above, service connection is already in effect for cardiomyopathy as secondary to hypertension, pursuant to 38 C.F.R. § 4.104 Diagnostic Code 7007, which specifically contemplates the heart symptoms of dyspnea, fatigue, angina, dizziness, or syncope. Therefore it would be inappropriate to refer the Veteran for extraschedular consideration based on those symptoms. In sum, the Board finds that a comparison of the Veteran's hypertension with the schedular criteria for the disability does not show that it presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2014). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. As such, in the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran also is service-connected for depression, cardiomyopathy, hypothyroidism, otitis media, and shoulder bursitis. While the Veteran has indicated that he believes these conditions to be related to each other in certain respects, at no point during the current appeal has the medical evidence indicated that his service-connected hypertension and his other service-connected disabilities result in further disability when looked at in combination with each other. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Increased Rating for Depression 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. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126 (2014). The pertinent provisions of 38 C.F.R. § 4.130 relating to rating psychiatric disabilities read as follows: 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2014). A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. The Federal Circuit has indicated that when addressing the issue of a veteran's entitlement to a disability rating under 38 C.F.R. § 4.130, an explicit finding as to how most of the enumerated areas are affected may be important, if not absolutely required. See Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). In this case, the Veteran essentially contends that his depression is more disabling than contemplated by the current 50 percent disability evaluation, and that his symptoms more closely approximate the criteria for a 70 percent rating, which is the rating he stated would satisfy his current appeal. See May 2014 VA form 9. In September 2009, the Veteran was seen by a Dr. B. for problems with depression and anger that were impacting his marriage. His mood and affect were low and his self-esteem was reported at an all-time low. He was experiencing moderate anxiety and rage. His attention and concentration was marginally worse and his sleep was not within normal limits. In October 2009, the Veteran reported his fatigue, nervousness, and problems concentrating were marginally better. He reported wishing he could have done things in the past differently. In a December 2009 session with Dr. B., the Veteran reported anger, but stated he got some energy from his grandchildren and tutoring. The Veteran was also seen by a Dr. S. The examiner reported he was well groomed but his mood was depressed, angry, and irritable. His speech was rambling and rapid. His cognitive function was average; and memory, concentration, and judgment were all intact. In January 2010, Dr. S. reported that the Veteran's mood was depressed, anxious and irritable. His speech was rambling and rapid. His cognitive function was average, and memory, concentration, and judgment were all intact. In February 2010, the Veteran was depressed. His affect was broad. Judgment and insight were fair, according to Dr. S. In March 2010, the Veteran's mood was dysthymic. Judgment and insight were fair. In November 2009, the Veteran wrote in a lay statement that he had side effects from his depression and cardiomyopathy medication that affected his ability to hold a part time job tutoring. He also stated his depression was worsening and that he was on higher medication doses. In April 2010, the Veteran was seen for a VA psychological examination. The Veteran was noted to have constant, chronic depression of moderate severity. He slept six hours per night, and his energy was poor. His concentration had shown some improvement with medication. The examiner noted past suicidal thoughts. The Veteran reported being close to his wife and children, and that socially, although he had many acquaintances, he did not have any close friends. His appearance was clean, his speech and psychomotor activity were unremarkable. His affect was constricted and his mood "kind of low." He was not oriented to the correct date. He did not suffer delusions and understood the outcome of his behavior. He exhibited fair impulse control. His memory was normal. The Veteran noted that he worked part time but that he missed work because sometimes he did not feel like getting out of bed. The examiner opined that the Veteran had reduced reliability and productivity due to his mental disorder. In his September 2010 Notice of Disagreement, the Veteran stated that he had tried surgical implants (a Vagus Nerve Stimulator), "virtually every anti-depressant developed to date," and anti-anxiety medication, but he was still having difficulty functioning in virtually any kind of relationship. He also stated that his panic attacks had changed to a near constant level of anxiety and that his increased dosage of Clonazepam had barely helped. In January 2012, the Veteran was seen for a neuropsychology consult. The Veteran was still working as tutor at that point. The Veteran was concerned about progressive cognitive decline, which his wife stated had been worsening. He stated that his short term memory was poor and that he confused times and dates. He reported chronic depression that had been somewhat better since he had been on Pristiq; and he would obsess and worry about his children, which was a source of stress in his marriage. He reported intermittent passive suicidal ideation, but had never made an attempt. Testing revealed intact cognition and severe depression. July 2012 treatment records from the Mayo Clinic show the Veteran was cooperative with appropriate mood and affect, and normal judgment. In January 2013, the Veteran complained at the Mayo Clinic of worsening depression. He self-reported symptoms of depression that made it extremely difficult for him to go about his day-to-day activities. He stated he felt down and depressed and had little interest or pleasure in doing things. He stated everything seemed to take a great deal of effort, and he often felt numb and like there was a lack of joy in life. He reported feeling bad about himself and felt that he had let his family down. Over the years, he had experienced passive suicidal thoughts without plan or intent. Testing revealed that his cognitive functioning was normal. In March 2013, the Veteran was seen at the Mayo Clinic. He was professionally dressed and groomed. His mood was neutral and his affect was consistent with the content of his speech. He and his wife seemed to have a warm supportive relationship, according to the examiner. Thought form and content were within normal limits. There was no evidence of psychosis and no evidence of suicidal thinking. Cognition was grossly intact. Insight and motivation seemed adequate. In August 2013, a private psychologist submitted a letter that he had treated the Veteran from May 2012 to November 2012 and then again in August 2013. The clinician stated that the Veteran reported a history of moderate to severe depression symptoms that had recently increased. He stated that the Veteran had tried multiple treatments that had minimal impact and was considering taking a leave of absence from work to pursue transcranial magnetic stimulation, which the clinician recommended that the Veteran do in order to treat his "severe and chronic condition." In September 2013, the Veteran was seen at the Mayo Clinic. He endorsed decreased interest or pleasure in doing things trouble with sleep, feeling tired or having little energy, overeating, and trouble concentrating was occurring nearly every day. More than half the time he felt depressed and felt bad about himself and noticed psychomotor changes. Occasionally he had thoughts that he would be better off dead. These were not accompanied by suicidal thoughts. He thought that these symptoms made it extremely difficult to complete his day-to-day activities. In December 2013, the Veteran was seen for a VA examination. The examiner noted that the Veteran's depressed mood, anhedonia, feeling tired, overeating, pessimistic thoughts, and thoughts he would be better off dead were due to Major Depressive Disorder and that the Veteran had occupational and social impairment with reduced reliability and productivity. In April 2014, the Veteran was seen again at the Mayo Clinic. He was casually dressed and neatly groomed. Mood was neutral and affect was consistent with the content of his speech. Thought form and content were within normal limits. There was no evidence of psychosis and no evidence of suicidal thinking with intent. Cognition was grossly intact, although the examiner noted some slowing due to depression. Insight was adequate and motivation seemed good. There was no evidence of impaired judgment. In May 2014, a letter was submitted from Wekiva Springs Center stating that the Veteran was enrolled as an outpatient and attended treatment three hours per day for "Major Depressive Disorder, Recurrent, Severe." In June 2014, the Veteran was seen for another VA examination. He reported being close to his wife, but having no friends. He reported his leisure activities as sitting around the house and taking his grandchildren to swimming. He stated he would do some volunteer tutoring but it had not started yet. The examiner noted the Veteran had depression, anxiety, and sleep impairment consistent with moderate depression. The examiner opined that the Veteran's service-connected condition of Major Depressive Disorder should not preclude light duty or sedentary employment. The Veteran submitted a mental disorder disabilities benefits questionnaire from a private clinician in June 2014. The clinician noted that the Veteran suffered from severe depression prior to his most recent outpatient therapy, which now was of a more moderate severity. He noted that the Veteran had Major Depressive Disorder and listed the symptoms on an attachment sheet as depressed mood; apathy; appetite and weight increase; sleep disturbance; psychomotor retardation; feelings of worthlessness; excessive inappropriate guilt; diminished concentration; indecisiveness, and passive death wish (suicidal ideation without plan. intention or attempt). He noted that these symptoms were not able to be distinguished from the Veteran's other mood disorders and the mood disorders impaired the Veteran's ability to function in all spheres including work, family, social, cognition and mood. The examiner noted that the Veteran was unemployed due to his psychiatric problems and that he experienced deficiencies in most areas such as work, family relations, thinking, and or mood. In July 2014, the Veteran's treating clinician from the Mayo Clinic also filled out a mental disorder disabilities benefits questionnaire. The clinician opined that the Veteran suffered from occupational and social impairment with deficiencies in most areas such as work, family relations, thinking, and or mood, and that while he had other psychiatric disorders the majority of his symptoms were due to his depression. The examiner noted the Veteran suffered from depression; suspiciousness; near-continuous panic or depression effecting the ability to function independently, appropriately, and effectively; flattened affect; disturbances in mood or motivation; difficult in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances including work setting. The examiner ultimately opined that the Veteran was not able to be gainfully employed because his depression was debilitating. Near continuous depression affecting the ability to function independently, appropriately, and effectively; and inability to establish and maintain effective social relationships, while not exclusive requirements, are hallmark indicators of a 70 percent criteria rating for depression. The Veteran has throughout the appeal period consistently displayed these symptoms, as demonstrated by his treatment record, as well as lay statements. The Veteran has been consistently seen by clinicians for treatment resistant depression, including intensive outpatient treatment on a daily basis in 2014. The Veteran has also demonstrated social impairment at times in regards to his relationship with his wife, and a lack of friends, as well as occasional anger and racing thoughts, due to depression. His records indicate that because of his depression he had to stop engaging in his part time tutoring job. He has also indicated suicidal ideation albeit without intent, in various treatment records. The Veteran has also endorsed what he believes to be a decrease in his cognitive functioning, although testing has not shown this to be the case to as great an extent as his beliefs. The Board finds the July 2014 mental health questionnaire from the Veteran's treating clinician from Mayo Clinic especially probative as the Veteran has been seen for consistent treatment from this clinician over the years. Overall, the Veteran's service-connected depression has been shown on objective examination to be manifested by near continuous depression affecting the ability to function independently, appropriately and effectively; and inability to establish and maintain effective social relationships. This symptomatology is considered as being productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. While the Veteran's service-connected depression has not been shown to be consistently productive of some of the cognitive symptoms indicated in the 70 percent criteria, such as illogical, obscure or irrelevant speech, spatial disorientation, or neglect of personal appearance and hygiene, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan, 16 Vet. App. at 436. Overall, the Veteran's near continuous depression, and difficulty in establishing and maintaining effective work and social relationships, are indicative of a 70 percent rating, in excess of the 50 percent rating currently assigned. In reaching this determination, the Board has considered whether, under Hart a different rating might be warranted for any period of time during the pendency of this appeal. See Hart, supra. Although the Veteran's depression has, at its worst been at the 70 percent rating level, the Veteran has also experienced temporary periods of time where his symptoms were more consistent with a 50 percent rating. However these short periods do not constitute distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings, as they were usually temporary following a new medication or a period of intensive therapy. Overall, the Veteran has consistently, throughout the entire appeal period demonstrated near continuous depression. The Veteran stated in his VA Form 9 Substantive Appeal that "The rating that would satisfy this appeal is 70." Therefore this appeal is considered granted in full. Regardless, while the Veteran does meet the criteria for a 70 percent rating, there is no evidence of total occupational and social impairment due to gross impairment in thought processes or communication; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. See supra 38 C.F.R. § 4.130, Diagnostic Code 9434 (2014). In fact, the Veteran has been shown to have normal thought processes. He has not demonstrated total occupational and social impairment, and therefore, he does not meet the criteria for a 100 percent evaluation. Extraschedular Consideration of Depression The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2014); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Id. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2014). The Board finds that referral for extraschedular consideration is not warranted. The Veteran's service-connected depression is contemplated and reasonably described by the rating criteria under Diagnostic Code 9434. See 38 C.F.R. § 4.130 (2014). In this regard, the Veteran's depression has specifically been manifested by near continuous depression affecting the ability to function independently, appropriately and effectively; and inability to establish and maintain effective social relationships. As shown above, this type of disability picture is specifically addressed in the rating criteria set forth in Diagnostic Code 9434. See id. Accordingly, the Board finds that a comparison of the Veteran's depression with the schedular criteria does not show that it presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2014). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. As such, in the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran also is service-connected for hypertension, cardiomyopathy, hypothyroidism, otitis media, and shoulder bursitis. While the Veteran has indicated that he believes these conditions to be related to each other in certain respects, at no point during the current appeal has the medical evidence sufficiently indicated that his service-connected depression and his other service-connected disabilities result in further disability when looked at in combination with each other. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. TDIU The Veteran essentially contends that his service-connected disabilities, in particular his depression, render him unemployable. 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. 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." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Merely theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). The test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Id. A claim for a total disability rating based upon individual unemployability "presupposes that the rating for the (service-connected) condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service- connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. In this case, the Veteran is service-connected for depression, now at 70 percent, cardiomyopathy at 30 percent; hypertension at 10 percent; hypothyroidism at 10 percent, and otitis media and right shoulder bursitis at 0 percent; and therefore the combined disability rating meet the percentage rating standards for TDIU on a scheduler basis. 38 C.F.R. § 4.16(a). A November 2011 submission from Florida State showed that the Veteran's job had changed from that of a full time advisor to an academic tutor. In a February 2012 letter the Veteran stated that he was unemployed but looking for part time work. In August 2013, an employment questionnaire submitted by Florida State noted the Veteran was currently employed as a tutor. The hours worked were not listed. In a September 2013 statement, the Veteran acknowledged that he was tutoring part time, but stated that he would be stopping work at the end of the month to pursue psychiatric treatment. In a June 2014 VA examination, the examiner stated there was no objective evidence that the Veteran's service-connected condition of Major Depressive Disorder precluded him from obtaining and maintaining a gainful employment, and that the Veteran was "a very assertive man." The examiner noted that the Veteran reported that he would continue to work as a tutor during the fall and that he was currently trusted with taking three grandchildren to their swimming classes. He also reported that he helped with household chores. The Veteran submitted a mental disorder disabilities benefits questionnaire from a private clinician in June 2014. The clinician noted that the Veteran suffered from severe depression prior to his most recent outpatient therapy. He noted that the Veteran had Major Depressive Disorder and listed the symptoms on an attachment sheet as depressed mood; apathy; appetite and weight increase; sleep disturbance; psychomotor retardation; feelings of worthlessness; excessive inappropriate guilt; diminished concentration; indecisiveness; and passive death wish (suicidal ideation without plan, intention or attempt). He noted that these symptoms were not able to be distinguished from the Veteran's other mood disorders and the mood disorders impaired the Veteran's ability to function in all spheres including work, family, social, cognition and mood. The examiner noted that the Veteran was unemployed due to his psychiatric problems and that he experienced deficiencies in most areas such as work, family relations, thinking, and or mood. In July 2014, the Veteran's treating clinician from the Mayo clinic also filled out a mental disorder disabilities benefits questionnaire. The clinician opined that the Veteran suffered from occupational and social impairment with deficiencies in most areas such as work, family relations, thinking, and or mood, and that while he had other psychiatric disorders, the majority of his symptoms were due to his depression. The examiner noted the Veteran suffered from depression; suspiciousness; near-continuous panic or depression effecting the ability to function independently appropriately, and effectively; flattened affect; disturbances in mood or motivation; difficult in establishing and maintaining effective work and social relationship; and difficulty adapting to stressful circumstances including work setting. The examiner ultimately opined that the Veteran was not able to be gainfully employed because his depression was debilitating. In November 2014, the Veteran submitted a letter disagreeing with the October 2014 Supplemental Statement of the Case, which had stated that he worked 54 hours tutoring and was self-employed. The Veteran stated that he was only tutoring 20 hours per week and he stopped tutoring in December 2013 due to the worsening of his cognitive symptoms; and that he tried to help his son start a business, but could not help because of the complexities involved. He further stated that he never earned any money from being self-employed. Based on review of the evidence, the Board finds that a TDIU is warranted. The weight of the evidence clearly demonstrates that the Veteran has a service-connected disability of the depression of such severity as to preclude employment. Although the VA examiners opined that the Veteran's service-connected depression did not preclude him from light or sedentary work; several private medical practitioners have opined that the Veteran is unable to engage in substantially gainful employment due to the service-connected depression; including his treating clinician from the Mayo Clinic, who stated he could not work because his depression was debilitating. The Board finds the latter opinions to be evidence that the Veteran unable to unable to secure and follow substantially gainful employment as a result of his service-connected disabilities, when taken in view of his work history, and overall level of functional impairment. As such, the Board finds that entitlement to TDIU is warranted. ORDER Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to a 70 percent disability rating for depression is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a TDIU is granted, subject to the criteria applicable to the payment of monetary benefits. ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs