Citation Nr: 1647163 Decision Date: 12/16/16 Archive Date: 12/30/16 DOCKET NO. 09-41 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 50 percent prior to August 2, 2011, for depressive disorder not otherwise specified (NOS). 2. Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU) due to service-connected disability prior to August 2, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2008 and September 2009 rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. In May 2011, March 2013, and May 2016 decisions, the Board, in relevant part, remanded the issues for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. From April 15, 2008 to August 2, 2011, the Veteran's major depressive disorder caused occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood as a result of depressed mood, sleep impairment, mild memory loss, and difficulty establishing and maintaining effective work and social relationships. 2. From April 15, 2008 to August 2, 2011, the Veteran's service-connected major depressive disorder and frost bite residuals of the lower extremity met the percentage requirements for TDIU and prevented him from engaging in substantially gainful employment consistent with his education and occupational experiences. CONCLUSIONS OF LAW 1. From April 15, 2008 to August 2, 2011, the criteria for entitlement to an initial rating of 70 percent for major depressive disorder, but no higher, have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.130, Diagnostic Code 9434 (2016). 2. From April 15, 2008 to August 2, 2011, the criteria for a TDIU due to the service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implantation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). This appeal arises from the Veteran's disagreement with the initial rating. Where, as here, entitlement to disability benefits has been granted and an initial rating has been assigned, the original claim has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for entitlement to benefits has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The agency of original jurisdiction has obtained service treatment records, private treatment records, VA treatment records, the Veteran's statements, and has provided the Veteran with VA examinations. The reports of the VA examination included a review of the Veteran's medical history, including private and VA treatment records, an interview and examination of the Veteran, as well as sufficient clinical and diagnostic findings for purposes of determining the nature of the Veteran's major depressive disorder and the occupational and functional impact of his disabilities. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2 (2015). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Initial Rating a. Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2016). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases 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. Id. at 126-127. The major depressive disorder has been rated in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 9434 (2016) as 50 percent from April 15, 2008, to August 2, 2011, and as 100 percent disabling thereafter. As relevant to this claim, under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when the psychiatric condition produces 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. Id. A 70 percent evaluation 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 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. For the 70 percent rating, the focus is on whether symptoms caused deficiencies in most of the areas listed in the rating criteria. Bowling v. Principi, 15 Vet. App. 1 (2001). b. Factual Background The RO granted service connection for a mood disorder with depression effective April 15, 2008. The disability was evaluated as 50 percent disabling form that date until August 2, 2011, when the rating was increased to 100 percent. A June 2007 private treatment record shows that the Veteran was retired and driving a taxi as a part-time job. He reported that after he left service he had run a service station for his brother, then worked at North Carolina State University for 10 years; and then at the post office for about 27 years until he retired. He reported that he had trouble sleeping. The Veteran reported that he felt in a low mood, depressed, moody, and frustrated with what he had. He was accused by his wife of being easily frustrated and getting angry easily. He also reported that socially he does not do much because of that issue. He denied feeling hopelessness and helplessness. And he denied any other problems. On mental status examination the Veteran looked his stated age. He was pleasant, cooperative and dressed casually. There were no abnormal movements noted and no abnormal posture or gesture. He seemed to be a reliable historian. He had good eye contact. His mood was depressed. His affect was a little dull and he denied any auditory or visual hallucination. He denied any suicidal or homicidal ideation. There was no evidence of any psychosis or delusions. Cognitively, he was alert and oriented. He was able to register and recall. His attention and concentrations were within normal limits. He had very good insight and judgement. The physician diagnosed mood disorder due to general medical condition and sleep disorder due to general medical condition. The physician assigned a GAF score of 49. Private treatment records dated June 2007 to December 2007 show that the Veteran reported trouble sleeping and was "thinking all the time". He reported that he could not relax. He also reported that he had nightmares and flashbacks and felt tense. On mental status examination the Veteran was noted as being a "little anxious". His mood was "ok". His affect was down, dull and bright. His thought process was within normal limits. His suicide and violence risk was noted as low. The Veteran was afforded a VA examination in November 2008. The examiner noted that the Veteran had a 12th grade education. The Veteran reported an "adequate" marriage. He had depression that had prevented socialization, especially in the preceding few years. The examiner noted that the Veteran drove a taxi a few hours per week. There was no history of suicide attempts or violence/assaultiveness. He was more withdrawn. There had been no hospitalizations for the Veteran's disorder. The Veteran's current psychiatric treatment was of "slight help". He reported poor sleep and appetite, low energy, poor concentration and feelings of sadness. The symptoms were regular and on a daily basis. He rated the symptoms at 6 to 8 in intensity on a scale of 1 to 10. On mental status examination, the Veteran was appropriately and casually dressed. His psychomotor activity was fatigued and his speech was rapid. His attitude toward the examiner was cooperative. His affect was constricted. His mood was depressed and he was not able to do serial 7's or spell a word forward and backward. The Veteran was oriented to person, time and place. His thought process contained a paucity of ideas. His thought content was a preoccupation with one or two topics and ruminations. There were no delusions and he understood the outcome of his behavior. He understood he had a problem. The Veteran was noted as having sleep impairment and could sleep as little as two to three hours. There were no hallucinations or inappropriate behavior. He interpreted proverbs appropriately. He did not have obsessive ritualistic behavior or panic attacks. There were no homicidal or suicidal thoughts. The extent of impulse control was good and there were no episodes of violence. The Veteran was able to maintain minimum personal hygiene. Problems with activities of daily living were not too severe. The Veteran's remote memory was normal and his recent and immediate memory was moderately impaired. Examples of memory disorder included forgetting to do daily tasks. The examiner noted that the Veteran had time lost from work because he overslept at times due to depression. His problems related to occupational functioning included decreased concentration and increased absenteeism. The examiner diagnosed depressive disorder, not otherwise specialized and assigned a GAF score of 55. The examiner noted that the Veteran had deficiencies in thinking due to moderate concentration issues and family relations. The Veteran also had deficiencies in work in that he still drove a cab a few hours per week but became lethargic and depressed due to physical pain in the feet. He also had deficiencies in mood due to depression. A September 2008 private treatment record shows that the Veteran reported that he had not been going to church or talking to any friends. On mental status examination he was constricted and dull. A December 2008 private treatment record shows that the Veteran was still anxious and still having nightmares and flashbacks. The physician noted that the Veteran was not going to church and cutting back on work. On mental status examination the Veteran was dull. He denied suicidal and homicidal ideation. A June 2009 statement from the Veteran's former employer City Taxi shows that the Veteran was employed from 1962 to 2008 as a cab driver. It was noted that he had lost 90 days due to disability during the 12 months preceding last date of employment. There were no concessions made to the Veteran. It was noted that the Veteran was no longer working due to a medical condition. A March 2009 VA mental health assessment shows that the Veteran was treated because his wife said he was making bad decisions. For example, he let a man move into his rental property without checking to see if the man could pay. Later the man had to be evicted. The Veteran's wife also indicated that the Veteran had let his sister take advantage of him financially. His wife reported that she had read about bipolar disorder and thought he needed Abilify. She reported he had mood swings that lasted a couple of days at a time depending on "what set him off." She did not remember him being severely depressed. She was concerned because she believed he had had an affair with a very young woman a year prior. She reported that he had never slept well and kicked her in his sleep so they did not sleep together. The Veteran did not think he had any problems. He denied having an affair and justified the decisions the wife complained about. He reported that he could not sleep because of his feet. The physician noted that the Veteran had had episodes of doing construction at night when he was not sleeping but it was not clear that this was mania. Both the Veteran and his wife agreed that he had problems with memory. He reported that he got lost at times driving his cab and could not remember the day. The physician noted that the Veteran denied any past psychiatric history even though he was service connected for depression. The physician noted there was no psychiatric history in available records. The physician also noted that the Veteran had been seen in November by Dr. J. and prescribed Remeron for sleep. The Veteran reported that he went to Dr. J. because he was trying to get a raise in his VA pension and "someone at VA claims set him up." The physician noted that the Veteran had an 11th grade education. The Veteran reported that he still "did transportation for the city." The Veteran also reported that he lived with his wife of 56 years and his youngest daughter who has schizophrenia and was legally blind. He reported that his 50 year old son and college graduate grandson also lived with him. The Veteran said that he "likes building and doing things". The Veteran reported that he had five children that he talked to daily; and he noted that they were "in my corner". The Veteran reported that he attended church regularly. The physician noted that the Veteran had memory problems for about a year. On mental status examination the Veteran was oriented and alert. There were no abnormal movements. He was well groomed, pleasant and cooperative. He had good eye contact. He was a little overly friendly at times. His rate, tone and volume of speech were normal. His mood was euthymic and his affect was full range and appropriate. His thought process was digressive and over inclusive. He denied suicidal and homicidal ideation, plan or intent. He denied visual hallucinations and auditory hallucinations. There were no delusions and his insight was "maybe impaired". In regards to judgement, the physician noted that it sounded like he let people take advantage of him like this young woman who told his wife he was having an affair. The physician noted that he was also a little overfriendly and would honk his horn to greet strangers on the side of the road. The physician noted that he was not sure what was going on with the Veteran. He noted that it did not seem like bipolar disorder because the mood swings only lasted a day or so. The physician wrote that he could not understand how the Veteran could be service-connected for depression if he denied any past psychiatric history and said he had never been severely depressed. The examiner noted that the Veteran's sleep problem was unclear. He noted that the Veteran might have had restless legs due to prescriptions. He also noted that there was some marital discord and the memory problems and poor judgement were worrisome. The physician diagnosed cognitive disorder, NOS, and assigned a GAF of 75. The Veteran was afforded another VA examination in August 2011. The examiner diagnosed bereavement. The examiner noted that the Veteran's GAF score of 50 was predominantly due to concerns regarding probable cognitive impairments. Formal psychological testing was not done to determine cognitive issues thus an Axis I diagnosis regarding cognitive concerns could not be given at that time. The examiner reported that any cognitive problems the Veteran had were less likely than not a result of his active military service. The examiner found that the Veteran had total occupational and social impairment. The Veteran appeared to have some very probable cognitive issues that would severely limit his occupational functioning; however, a cognitive disorder on Axis I could not be given without formal psychological testing. The examiner concluded that it was less likely than not that his cognitive problems were a result of his military service. The examiner explained that given the probable cognitive difficulties, he was unable to separate the impairment of his cognitive problems and current bereavement diagnosis regarding occupational and social functioning without undue speculation. Regarding capacity for employment, the examiner explained that it was not within the scope of practice to comment on the Veteran's service connected medical issues, thus she was unable to provide an opinion. The examiner further concluded that based on the assessment; the Veteran did not meet the criteria for a DSM-IV depression diagnosis, but rather met the criteria for bereavement and some probable cognitive issues. The examiner noted that the diagnosis of depression at his November 2008 VA examination; but explained that based on the examination and other VA providers who had evaluated him in the past month, he did not meet the criteria for depression. The examiner noted that the Veteran reported being slightly bothered by tingling in his feet, which he attributed to frostbite. The Veteran denied pain and did not appear to be significantly concerned about it at the time of the examination. The examiner explained that depression can remit; and it was possible that the Veteran met a depression diagnosis during the previous VA examination but no longer did. The examiner explained that his bereavement diagnosis was due to the recent loss of his wife of almost 60 years and this it was not a result of his military service. The reviewed Dr. J.'s evaluation dated June 2007, progress notes from July 2007 to June 2008, the November 2008 VA examination, a March 2009 VA mental health consult, a June 2011 VA mental health consult, and an August 2011 mental health consult conducted the same day as the examination. The examiner noted that none of the VA providers the Veteran had seen since 2009 had diagnosed the Veteran with any depressive disorder. Instead, he had been given a cognitive disorder NOS diagnosis and a bereavement diagnosis due to his wife's recent death. The Veteran reported that his wife of 60 years passed away two months prior due to cancer. The examiner noted that the Veteran had the paper program from his wife's funeral with him during the examination and showed it to the examiner. The Veteran reported that her death was "tough" on him and he was "missing her". The Veteran reported that they had had a perfect life. The examiner noted the March 2009 VA consult showing that when the Veteran's wife was still alive there were some concerns regarding the Veteran's infidelity; and the mental health provider had noted some marital discord. The Veteran reported that when his wife was alive she did not sleep with him because he was kicking her at night. He reported that the kicking was due to frost bite residuals. The Veteran reported that he had five adult children. Two of his children lived with him. The examiner noted that one of the children had schizophrenia. The Veteran reported that he was glad to have his two children live with him and reported that he would feel lonely if they were not there. He denied any problems with them living with him. He reported that he went to a restaurant daily to meet with a friend and up to 10 other people. He said that he was active in his church. He used to go there daily but did not go as much anymore. He reported that the people at his church were the "finest" he had ever met. The Veteran reported that he was not working and he last worked as a taxi driver. He reported that he stopped driving about a year and a half earlier due to having difficulty with directions. He reported that he still had his driver's license and drove himself to the examination. The Veteran's mental health symptoms were depression. He reported he had been feeling "out of it" and "sometimes home by myself" with some problems since his wife passed away. He reported that he was trying to "deal with it the best I can". He stated that he "felt on the edge but not crying". He reported a decreased appetite and has lost weight. He denied suicidal and homicidal ideation. The Veteran reported that he did not really sleep. He reported that sometimes he does not go to sleep until four or five in the morning and typically woke up between ten and eleven in the morning. He denied taking naps during the day but said that he sometimes fell asleep at Bojangles. He reported that he did not wake up once he fell asleep. The examiner noted that the Veteran had mild memory loss such as forgetting names, directions, or recent events. The Veteran had impairment of short and long term memory. He had retention of only highly learned material, while forgetting to complete tasks. The Veteran also had circumstantial, circumlocutory, or stereotyped speech. The Veteran also had spatial disorientation. The examiner noted that the Veteran did appear to have some problems with cognitive functioning. There was some perseveration noted during the examination. The examiner noted that the Veteran was administered "MOCA" and scored a 15/30; which was of significant concern. The examiner explained that without formal neuropsychological testing it was unclear what type of cognitive impairments he might have had, thus an Axis I diagnosis was not provided. The examiner noted; however that any cognitive impairments he may have were not caused by or a result of his military service. An April 2015 VA psychiatry addendum opinion shows that the examiner reviewed all the available records to include VA records dated from April 2008 to August 2011. The examiner opined that the determination of whether the service-connected depressive disorder precluded gainful employment was "a legal determination." The examiner then explained that from April 15, 2008 to August 1, 2011, the Veteran's service connected depressive disorder did not appear to have prevented the Veteran from completing physical labor tasks such as lifting, pushing, or pulling based on review of records during this time. It was noted that records from mental health treatment providers did not give a diagnosis of depression in either March 2009 or June 2011; and the Veteran's primary care provider had significant concerns about the Veteran's memory problems. The only diagnosis of depression was given by the VA examiner in November 2008. The examiner noted that overall, there did not appear to be any physical occupational impairments secondary to his service-connected depressive disorder during the relevant period based on review of available treatment records. The examiner also concluded that the Veteran's service-connected depression disorder was not related to his memory problems, his memory problems appeared to be a separate condition from the service-connected depression. The examiner also explained that from April 15, 2008, to August 1, 2011, the Veteran's service connected depressive disorder did not appear to have prevented him from completing sedentary tasks such as answering phones, filing papers, or other desk positions. Overall, there did not appear to be any sedentary occupational impairment secondary to his service-connected depressive disorder during the relevant period. The examiner repeated that the Veteran's service-connected depression disorder was not related to his memory problems, his memory problems appeared to be a separate condition from the service-connected depression. In June 2016, another addendum opinion was obtained. The examiner reviewed the records and noted that she had written the original report in August 2011, during which she found that the Veteran did not meet the criteria for a depression diagnosis. The examiner stated that the newly associated VA treatment records did not change her previous assessment of the functional impairment that resulted from the Veteran's depression. Given that there had not been a definitive depression diagnosis given in VA treatment records since the November 2008 initial mental health examination and one was not provided by this examiner in the August 2011 report, it was less likely than not that the Veteran's dementia or bereavement disorder were caused by or aggravated by a depressive disorder. c. Analysis During the period prior to August 2, 2011, the Veteran exhibited occupational and social impairment due to such symptoms as: depressed mood, anxiety, social isolative behavior, difficulty concentrating, memory problems, poor judgment, and nightmares. With respect to the Veteran's mood, he has reported depression throughout the entire course of the appeal. Indeed, the evidence shows that he has suffered from continued depression over the course of his treatment during the relevant portion of the appeal period. He also reported nightmares and sleep impairment. With regard to the frequency and severity of his symptoms, the Veteran repeatedly reported them beginning from his first mental health treatment in June 2007. He has shown disturbances of mood and motivation that have spanned a long duration, resulting in a severe overall impact on the Veteran's functioning. Turning to the Veteran's symptomatology as it relates to his judgment and thinking, he has been consistently described as having normal thought processes and content. He has experienced memory loss; and possible manic symptoms. The Veteran did, however, describe mild memory loss prior to the onset of any severe dementia that occurred after the end of the relevant appeal period in August 2, 2011. Additionally, as was noted during the March 2009 treatment, the Veteran had some deficiencies in judgment; insofar as he rented out property to someone who could not pay and he had to later evict the renter. The Veteran's wife also noted that the Veteran had allowed his sister to take advantage of him financially. Thus, the Board finds that the Veteran's judgment and thinking was shown to be relatively moderately impaired, but the severity has not risen to the level associated with a 100 percent rating. There have been few deficiencies in family relationships. Prior to his wife's death, he was married for 60 years, and he has several children with whom he has maintained close relationships. There were some reported conflicts with his wife. Furthermore, with respect to the Veteran's work, the evidence shows that he was not employed during the period since the effective date of service connection. The evidence shows that the Veteran's depressive disorder caused decreased concentration and increased absenteeism. It is clear that his psychiatric disorder caused deficiencies in work prior to August 2, 2011. Examiners have regularly said, without much in the way of rationale, that the Veteran's cognitive impairment was unrelated to the service connected depression and most opinions have been that he does not have depression. These opinions are of limited valued because of the absence of a rationale. Examiners have provided apparently contradictory opinions that they could not diagnose a cognitive disorder without testing that was not accomplished; but have gone on to say that the cognitive disorder they could not diagnose was unrelated to depression or service. They also do not provide a clear description of what symptoms are attributable to cognitive impairment versus depression. Accordingly, the Board has attributed all of the Veteran's symptomatology to his service connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, taking into account the severity, duration, and frequency of these manifestations, the Veteran's symptomatology most nearly approximate the manifestations required for a 70 percent rating before August 2, 2011. A 100 percent rating would require complete social and occupational impairment. The Veteran; however, has been able to maintain relationships with family members, his church, and the friends with whom he goes out to eat. Accordingly, the evidence is against a finding that he has total social impairment. He therefore does not meet or approximate the criteria for a rating in excess of 70 percent. d. Additional Considerations The Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during the relevant period on appeal. See, 38 C.F.R. § 4.105, Diagnostic Code 9434 (2016). The Board has also considered whether consideration of an extraschedular rating for the Veteran's major depressive disorder has been reasonably raised by the facts. In Yancy v. McDonald, the CAVC noted that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted." 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the CAVC stated "that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." Yancy, 27 Vet. App. at 495; see Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, the Veteran has not asserted, and the evidence does not reasonably suggest, that the disabilities warrant an extraschedular rating. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. The Veteran's rating for his service-connected major depressive disorder contemplates his subjective complaints of depression, anxiety, sleep impairment, trouble concentrating, memory problems, as well as his functional impairment, including his difficulty maintaining occupational and social relationships. These symptoms were found to warrant a 70 percent rating, but no higher, prior to August 2, 2011. As such, the entirety of the Veteran's subjective complaints including his symptoms, objective findings, and occupational and social impairment are addressed in the higher 70 percent rating assigned for the entire appeal period prior to August 2, 2011, in this decision. Thus, the Veteran's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. III. TDIU VA will grant a total rating for compensation purposes based on unemployability (TDIU) when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected 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 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran is entitled to a TDIU, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether an appellant is entitled to a TDIU, the veteran's nonservice-connected disabilities and advancing age may not be considered. 38 C.F.R. § 4.19. Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16 (a) (2016). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). During the period from April 15, 2008, to August 2, 2011, service connection was in effect for major depressive disorder, evaluated as 70 percent disabling; frostbite residuals to the right lower extremity, evaluated as 10 percent disabling; frostbite residuals to the left lower extremity, evaluated as 10 percent disabling; peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling; and furunculosis of the left side of the face, evaluated as noncompensable. With the grant of the 70 percent rating, his combined rating was 90 percent. 38 C.F.R. § 4.25 (2015). Therefore, the service-connected disabilities met the schedular criteria for a TDIU for the entire period on appeal. 38 C.F.R. § 4.16(a) (2016). In September 2008, the Veteran reported that he had been cutting back on work. On VA examination in November 2008, the examiner noted that the Veteran had time lost from work because he overslept due to depression. The examiner also noted that the Veteran's occupational functioning was impacted due to his decreased concentration and increased absenteeism. A June 2009 statement from the Veteran's former employer indicated that the Veteran had lost about 90 days in the last year of his employment due to his disability. On examination in August 2011, the examiner found that the Veteran had total occupational and social impairment. During the April 2015 VA mental status examination, the examiner noted that the Veteran did not have any physical occupational impairments secondary to his service-connected depressive disorder during the relevant period based on review of available treatment records. The examiner also explained that from April 15, 2008, to August 1, 2011, the Veteran's service connected depressive disorder did not appear to have prevented him from completing sedentary tasks such as answering phones, filing papers, or other sedentary desk positions. Overall, there did not appear to be any sedentary occupational impairment secondary to his service-connected depressive disorder during the relevant period An April 2015 VA internal medicine addendum opinion noted that all VA records from May 2002 to August 2012 were reviewed. The examiner noted that the Veteran had an 11th grade education. The examiner explained that a specific occupational assessment of the Veteran had not been performed during the period from April 15, 2008, to August 1, 2011. The examiner noted that clinical and VA assessments during that period describe no functional limitations secondary to service connected frostbite or peripheral neuropathy. The examiner noted; however, that a March 2006 EMG showed severe peripheral neuropathy. The examiner explained that in the absence of reversible causes, which were not found, it is reasonable to assume that this condition existed in April 2008. The examiner explained that based on that measure of severity, it could be concluded that, due to peripheral neuropathy, the Veteran would have difficulty walking on uneven ground and climbing ladders. Primary care notes during the period of interest made no mention of foot pain or limited ambulation. Pain scores during this period were generally zero, except when he was being assessed, and received surgery, for a non-service connected shoulder condition. Thus it can be concluded that he did not have daily foot pain due to his service connected frostbite or peripheral neuropathy and did not have limited ambulation. The examiner noted that April 2015 opinion that there is no evidence that the Veteran was limited in either physical or sedentary employment. The examiner explained that combining the effects of the Veteran's medical and mental health service connected disabilities, and taking into account the Veteran's education and experience, the functional impairments for employment would have existed during the period from April 15, 2008 to August 1, 2011. The examiner noted that the combined effect of service-connected disabilities on physical work was: standing limited to 8 hours, walking limited to8 hours on even ground; an inability to walk on uneven ground; and an inability to climb ladders. His lifting, pushing, and stair climbing was not affected. There was no effect of service-connected disabilities on the functions of sedentary work including: keyboarding, sitting, interacting with people, writing, and filing. The extent of the Veteran's keyboarding skills was unclear based on the occupational history. The evidence of record shows that the Veteran had some occupational limitations caused by his service-connected physical disabilities on his ability to perform physical work. He had been discharged from his former employer due to unspecified medical issues and reported difficulties with memory that interfered with his ability to drive a taxi. At the 2007 examination he was given a GAF of 49, which indicated a severe disability and an inability to keep a job. While he did report some employment as late as March 2009, this appears to have been marginal given the limited amounts of time he engaged in driving. In light of the foregoing, the Board finds that the evidence is in relative equipoise. Consequently, reasonable doubt is resolved in the Veteran's favor and a TDIU is granted during the period prior to the grant of a 100 percent rating for the psychiatric disability. See 38 U.S.C.A. § 5107(b). He would potentially be eligible for a TDIU for the period beginning August 2, 2011; if based on his lower extremity disabilities alone. See Buie v. Shinseki, 24 Vet. App. 242 (2010). The record shows that the Veteran was able to maintain gainful employment prior to 2008, when his lower extremity disabilities were evaluated at their current level of disability and more recent examinations have shown that the disabilities would not interfere with sedentary employment or physical exertion consistent with work as a driver. Accordingly, the evidence is against the grant of a TDIU for the period beginning August 2, 2011. ORDER Entitlement to an initial rating of 70 percent, but no higher, for major depressive disorder is granted from April 15, 2008 to August 1, 2011, is granted. Entitlement to a TDIU from April 15, 2008 to August 2, 2011, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs