Citation Nr: 1715319 Decision Date: 05/08/17 Archive Date: 05/22/17 DOCKET NO. 07-32 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial evaluation of 70 percent for major depression. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to December 12, 2014. REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD L. McCabe, Associate Counsel INTRODUCTION The Veteran had active military service from December 2003 to February 2006. He also had earlier periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2007 and April 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the March 2007 decision, the RO granted service connection for major depression and assigned an initial disability rating of 30 percent effective February 4, 2006. The Veteran appealed for a higher initial rating. The April 2010 decision, in part, denied entitlement to TDIU. The Board additionally notes that a September 2009 rating decision assigned the Veteran's depressive disorder a temporary total (100 percent) rating from July 28, 2008 to September 30, 2008 for hospitalization due to his service-connected psychiatric disability. See 38 C.F.R. § 4.29 (2016) (regarding the assignment of temporary total disability ratings for service connected disabilities requiring hospital treatment or observation for a period in excess of 21 days). That rating decision restored the 30 percent evaluation effective October 1, 2008. See September 2009 Rating Decision. This case was previously before the Board in July 2012, at which time, the Board remanded the claims for further development, to include providing the Veteran a contemporaneous VA psychiatric examination, procuring an opinion concerning the combined effects of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment, and obtaining additional outstanding medical records. See July 2012 Board Decision. A subsequent June 2016 rating decision granted an increased 50 percent rating for the Veteran's service-connected major depressive disorder, effective from December 12, 2014. That decision additionally granted a TDIU from that date. See June 2016 Rating Decision. A simultaneously issued supplemental statement of the case (SSOC) denied a rating in excess of 50 percent for major depression. That SSOC did not address the issue of entitlement to a TDIU for the appellate period prior to December 14, 2014. Although the Veteran filed a separate notice of disagreement (NOD) with regard to the effective date of the grant of a TDIU, the RO's grant of a TDIU from December 2014 forward did not satisfy the Veteran's appeal as concerning that issue. In this regard, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans' Claims (Court) held that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, as part of a claim for increased compensation. Here, the Veteran's TDIU claim, based as it is upon the effect of his service-connected depressive disorder on his employability, is clearly part and parcel of his claim for a higher initial rating for his major depressive disorder. See id. Accordingly, the June 2016 rating decision establishing a TDIU from December 14, 2014, and the Veteran's subsequent appeal of the effective date assigned, does not serve to remove the issue of entitlement to a TDIU prior to prior to December 14, 2014 from appellate consideration. Accordingly, although the TDIU issue was not recertified to the Board following its July 2012 remand, the Board has included that issue for appellate consideration and addresses it below. Moreover, although, the Agency of Original Jurisdiction (AOJ) failed to readjudicate the issue of entitlement to a TDIU prior to December 14, 2014, because the Board is granting a TDIU for the entire appellate period, any procedural failure as concerning that claim is harmless and nonprejudicial. See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010); Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). The Board also notes that, in January 2017, the Veteran's representative submitted evidence along with a waiver of initial RO consideration of the evidence; the Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2016). Further, because the Veteran's claim is being granted in full, as will be discussed in detail below, there is no prejudice in the Board's review of this evidence in the first instance. See Vogan, 24 Vet. App. at 163; Sanders, 556 U.S. at 407, 410. Finally, the Veteran's representative stated that a grant of a 70 percent rating for his major depression and the assignment of a TDIU for the period from February 4, 2006 through December 11, 2014 would satisfy the Veteran's appeal. See January 2017 Submission of Medical Evidence and Appellant's Brief (reflecting that the Veteran was seeking "a total disability rating (100 percent or 70 percent and TDIU)"). In this regard, although, a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, such a claimant may "limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law" via "clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition." AB v. Brown, 6 Vet. App. 35, 39 (1993) (citing Hamilton v. Brown, 4 Vet. App. 528, 544 (1993)). Here, the Veteran's representative specifically indicated that the Veteran is seeking a rating of 70 percent for his service-connected major depression in combination with a TDIU for the entire relevant appellate period. Accordingly, in light of the attorney's statements limiting the appellate issues, and because the Board finds sufficient evidence to grant an initial rating of 70 percent from February 4, 2006 forward and a TDIU from February 4, 2006 through December 11, 2014, the Board has characterized the claims as reflected on the title page. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, throughout the pendency of the appeal, the Veteran's major depressive disorder more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From February 4, 2006 to December 11, 2014, the Veteran's service-connected disabilities, including specifically his major depression and bilateral foot disabilities, rendered him unemployable. CONCLUSIONS OF LAW 1. The criteria are met for an initial rating of 70 percent for major depressive disorder. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2016). 2. The criteria are met for a TDIU for the period from February 4, 2006 through December 11, 2014. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). As previously discussed, the Veteran specifically indicated that he was seeking an initial rating of 70 percent prior for his major depression and a TDIU from February 4, 2006 through December 11, 2014. As the Board is granting an initial rating of 70 percent rating for major depression and a TDIU for the entire relevant appellate period, this award represents a complete grant of the benefit sought on appeal as concerning those issues. Thus, any deficiency in VA's compliance with the duty to notify and assist is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. See id.; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Initial Rating For the reasons that follow, the Board concludes that an initial rating of 70 percent for the service-connected major depression is warranted for the entire appellate period. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2016). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2016). However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. In initial rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As noted in the introduction above, the Veteran's service-connected major depressive disorder is currently evaluated as 30 percent disabling, effective from February 4, 2006, the day following his discharge from his last period of active service, to December 11, 2014; from December 12, 2014 forward, the major depression is in receipt of a 50 percent evaluation. The Veteran's service-connected major depression is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9434, according to VA's General Rating Formula for Mental Disorders. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1. Under the General Rating Formula, as pertinent to the present appeal, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, DC 9434. A 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating requires 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 inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV). Id. at 443. (The DSM-IV has been recently updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 79 Fed. Reg. 45093. The amendments apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014. Id.). The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2016); Vazquez-Claudio, 713 F.3d at 117 (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A score of 41-50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 (observing that a GAF score of 50 indicates serious impairment). While an examiner's classification of the level of psychiatric impairment reflected in the GAF score assigned can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2015); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. Evaluating all the evidence of record, the Board finds that the frequency, severity, and duration of the Veteran's reported major depression symptomatology more closely approximates the criteria for an initial 70 percent rating for the entire appellate period. In this regard, the evidence reflects that the Veteran's major depression is productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, DC 9434. See also Fenderson, 12 Vet. App. at 126; 38 C.F.R. § 3.400(o). Specifically, the Veteran's records of private and VA medical treatment dated throughout the appellate period, as well as Social Security Administration (SSA) records, statements from his private treating psychiatrists, and the February 2007, July 2010, and December 2014 VA psychiatric examination reports, indicate, in particular, anxiety; depression; chronic insomnia; isolating behaviors; flashbacks and reexperiencing traumatic events; difficulty in adapting to stressful circumstances, including work or a worklike setting; avoidance behaviors; panic attacks; hypervigilance; exaggerated startle response; suicidal ideation; impaired impulse control (such as unprovoked irritability with periods of violence); impaired judgment; decreased motivation and mood; paranoid ideation; decreased concentration; impaired short-term memory; neglect of personal appearance and hygiene; and impaired social and occupational functioning. See, e.g., February 2007 VA Mental Disorders Examination Report (reflecting that the Veteran "presented symptoms of depression and self harm ideas"; noting that the Veteran "[r]eports getting harsh and aggressive with his wife[, and] having been physically assaultive, without legal consequences"; and reporting that he "remains depressed, irritable, isolate[ive,] and [unable to] socialize"); August 2007 Vet Center Progress Note (reflecting manifestations of the Veteran's psychiatric disability including "ongoing sadness, dissociative exp[eriences] while driving, temporary memory loss, problems sleeping, . . . [and] being unable to work"); January 2008 SSA Psychiatric Evaluation Report (listing symptomatology related to his major depressive disorder including depressed mood, decreased motivation, decreased energy level, decreased memory function, decreased concentration function, insomnia with difficulties falling and staying asleep, irritability, agitation, bouts of anger, auditory and visual hallucinations, mild paranoid ideation, nervousness, hypervigilance, intrusive thoughts of trauma, suicidal ideas and desires, diminished enjoyment and interest, and isolating behaviors; and reflecting that the Veteran's "[s]ocial and occupational capacities were impaired" as evidenced by the fact that he "was not making any eye contact during the interview[,] . . . looked in mental distress and mentally ill[,] . . . was unable to develop an appropriate social interaction[,] and . . . seemed uncaring about doing so"); April 2008 VA Psychiatry Note (reflecting manifestations of the Veteran's psychiatric disability including depression, irritability with outbursts of anger, lack of energy and motivation, anhedonia, auditory hallucinations, and memory impairment); July 2009 Psychiatric Evaluation from M.E.F.M., M.D. (reporting that the Veteran "forgets complex task[s], has slight impairment in short term memory, . . . and insomnia" and that he experiences "chronic severe recurrent major depression," which "markedly interfere[s with] his occupational [and] social [functioning] and [his ability to establish] relationship[s] with others"); January 2010 VA Psychiatry Note (noting symptoms including depression, insomnia, anxiety, exaggerated startle response, anhedonia, flashbacks and reexperiencing traumatic events, memory and concentration problems, irritability, "frequent death wishes," and isolating behaviors); July 2010 VA Mental Disorders Examination Report (reporting "severe, frequent" psychiatric symptoms including "depressed mood, irritability, insomnia, memory loss, . . . and anhedonia"); March 2011 Medical Certification of I.A.B., M.D. (noting that the Veteran's psychiatric symptoms include "depression, extreme anxiety, insomnia, nightmares[,] . . . intrusive recurring and distressing recollections of traumatic events[, and] . . . behavior changes that affected his overall functioning and relation with others[, including] . . . hypervigilan[ce], irritab[ility], impulsive[ness,] and . . . hostil[ity]"); July 2011 VA Occupational Therapy Note (noting manifestations of the Veteran's psychiatric condition including memory problems, impaired concentration, aggression and impulsivity, occasional inappropriate behavior, the necessity of assistance in problem solving, and impaired judgment and decision making ability); August 2011 Report of Psychiatric Evaluation of L.C.R., Psychologist (classifying the Veteran's psychiatric disability as "severe"; noting that he is unable to work as a result of his psychiatric condition; stating that, "[s]ince his discharge, [the Veteran] has constantly complain[ed] of [symptoms including] irritability, low concentration, insomnia," nightmares, isolating behaviors, anhedonia, and feelings of helplessness; and noting the Veteran's impaired ability to establish relationships, difficulty in completing simple or complex tasks, and neglect of personal appearance and hygiene); December 2014 VA Mental Disorders Disability Benefits Questionnaire (DBQ) (reflecting symptoms including "episodes of sadness, feelings of worthlessness, sleeping difficulties described sleeping five h[ours] with current medications, being hypervigilant, concentration difficulties, low motivation, since 'long time ago' almost daily, moderate"); July 2015 VA Treatment Plan (noting that the Veteran "continues to experience moderate to severe depression, avoidance, anger and verbal aggression on a persistent bas[is]," as well as memory and concentration problems, and difficulty in adapting to stressful circumstances, including work or a worklike setting); July 2016 VA Social Work Behavioral Health Psychosocial Assessment (reflecting that the Veteran requires assistance with remembering tasks and appointments and maintaining his personal hygiene and noting that that he experiences occasional suicidal ideation and anxiety attacks). Furthermore, the Veteran's wife and daughter have put forth statements detailing the Veteran's psychiatric symptoms during the period at issue, including his lack of motivation and energy, difficulty completing tasks, impaired memory, extreme irritability with outbursts of violence, isolating behaviors, impaired social and occupational functioning, and neglect of personal appearance and hygiene. See, e.g., February 2011 Statement of the Veteran's Daughter, also signed by his Wife and Son (reflecting his isolating behaviors, impaired memory, decreased motivation, depressed mood, feelings of hopelessness, avoidance behaviors, and neglect of personal hygiene); August 2011 Report of Psychiatric Evaluation of L.C.R., Psychologist (reflecting the assertions of the Veteran's spouse that he experiences nightmares, has "extreme[] difficult[y] establish[ing] relationships," frequently forgets simple or complex tasks," and experiences difficulty completing the activities of daily living including maintaining basic hygiene); November 2011 SSA Disability Report (Form SSA-3368) (completed by the Veteran's daughter and reflecting that he "doesn't want to go outside anywhere and does not have interest in anything" and that he "wants to be in his house all the time he has to be reminded and supervised to bathe, shave, cut his hair because he doesn't want to"). In this regard, the Veteran's wife and daughter are competent to report on factual matters of which they have firsthand knowledge, e.g., observing psychiatric symptomatology such as violence and anger, social isolation, neglect of personal hygiene, and forgetfulness, see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005), and the Board finds their statements to be credible, as they are essentially consistent with the medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see, too, Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). Additionally, throughout the appellate period, the Veteran's GAF score was repeatedly found to be in the 41-50 range, which is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See DSM-IV. See, e.g., January 2010 VA Psychiatry Note (providing a GAF of 50); July 2010 VA Mental Disorders Examination Report (reflecting a GAF of 50); August 2011 Report of Psychiatric Evaluation of L.C.R., Psychologist (noting a GAF of 45). As previously mentioned, a GAF score generally reflects an examiner's finding as to the Veteran's functioning score on that day and, like an examiner's assessment of the severity of a condition, is not dispositive. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Here, though, the assigned GAF scores reflect serious symptomatology and further support the finding that the Veteran's major depression resulted in in occupational and social impairment with deficiencies in most areas, thus entitling him to an evaluation of 70 percent for the entire appellate period. See 38 C.F.R. § 4.130, DC 9434. The Board notes that, at various points during the appellate period, the Veteran was also assigned higher GAF scores reflecting moderate or even mild symptomatology. See DSM-IV. However, in light of the symptomatology identified by his medical treatment providers and reported by his family members, and affording the Veteran the benefit of the doubt, the Board finds that the assigned GAF scores indicating less severe impairment are reflective of the Veteran's waxing and waning major depression symptomatology throughout the appellate period, rather than the Veteran's baseline level of functioning. Accordingly, these higher GAF scores do not reflect sustained improvement. Thus, staging the Veteran's rating to reflect these periods of improvement is unwarranted. See Fenderson, 12 Vet. App. at 126. In sum, finds that the probative medical and lay evidence establishes that, for the entire appellate period, the Veteran's major depression has been productive of symptoms that include including occasional suicidal ideation, impaired judgment and impulse control resulting in unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene, which result in difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. When resolving doubt in favor of the Veteran, the Board finds that these psychiatric symptoms and manifestations, coupled with his additional documented symptoms including anxiety, depression, chronic insomnia, isolating behaviors, flashbacks and reexperiencing traumatic events, avoidance behaviors, panic attacks, hypervigilance, exaggerated startle response, impaired judgment, decreased motivation and mood, paranoid ideation, decreased concentration, and impaired short-term memory, most closely approximate occupational and social impairment with deficiencies in most areas. See 38 C.F.R. §§ 4.7, 4.130, DC 9434. See also Mauerhan, 16 Vet. App. 436 (holding that, for the Board to assign a specific rating, it need not find all or even some of the symptoms present; rather, it only need find that the functional effect of the symptomatology justifies a particular rating). Accordingly, the competent evidence shows the Veteran's disability at least as likely as not meets the criteria for a higher initial 70 percent rating for major depression for the entire appellate period. See 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's claim is therefore granted. Given the Veteran's assertions, discussed above, indicating that the grant of an initial 70 percent rating for the service-connected major depression would satisfy his appeal as concerning the increased rating issue, and considering that the Board is granting an increased initial 70 percent rating for his major depression for the entire initial period, further discussion concerning the applicability of the schedular criteria for a 100 percent schedular rating or an extraschedular rating under 38 C.F.R. § 3.321(b) is unnecessary. III. TDIU Finally, the Veteran maintains that his service-connected major depressive disorder, alone or in combination with his service-connected bilateral foot disability, precluded him from obtaining and maintaining gainful employment from February 4, 2006 to December 11, 2014. See, e.g., January 2017 Submission of Medical Evidence and Appellant's Brief. In this regard, total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability); see also 38 C.F.R. § 4.19 (unemployability associated with advancing age or intercurrent disability may not be used as a basis for a total disability rating). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. As discussed, the Veteran is already in receipt of a TDIU from December 12, 2014, forward based on the preclusive effect of his major depression and bilateral foot conditions on his ability to obtain or maintain substantially gainful employment. See June 2016 Rating Decision. For the period prior to December 12, 2014, the Veteran is now in receipt of an initial 70 percent rating for his major depression, effective from February 4, 2006, which alone is sufficient to avail him of schedular TDIU under § 4.16(a). The Veteran is additionally in receipt of separate 20 percent evaluations, also effective from February 4, 2006 forward, for right and left foot Achilles tendon enthesopathy with postsurgical calcaneal spurs. See June 2016 Rating Decision Codesheet. Service connection is additionally in effect for the following conditions: right posterior foot surgical scar, rated as noncompensable (0 percent disabling) from February 4, 2006 to December 17, 2009, and as 10 percent disabling since December 18, 2009; left posterior foot surgical scar, rated as noncompensable from February 4, 2006 to December 17, 2009, and as 10 percent disabling since December 18, 2009; and a post-surgical hernia scar, rated as noncompensable from February 4, 2006, forward. Accordingly, in light of the Board's grant herein of an increased initial rating for the Veteran's major depression, the threshold minimum schedular requirements for consideration of entitlement to a TDIU have been satisfied since February 4, 2006. The only remaining consideration, then, is whether the Veteran has been precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities, including specifically his major depression and his bilateral foot disabilities, from February 4, 2006 to December 11, 2014. In this regard, the Board has considered the Veteran's educational and employment background. The evidence reflects that, he has a college education and that, prior to his period of active service from December 2003 to February 2006, the Veteran was employed as a junior-high school math teacher. See, e.g., November 2011 SSA Disability Report (Form SSA-3368). There is no evidence of experience or training in any other field, and there is no dispute that the Veteran has unemployed since his discharge from active duty in February 2006. The Veteran does not claim that he stopped working primarily due to disability; rather, he maintains that he is unable to reenter the workforce due to the current severity of his service-connected disabilities. Importantly, the ultimate question is not whether the Veteran can actually find employment, but whether, in light of his service-connected disabilities, he is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). And in the instant case, the Board finds that the criteria for entitlement to a TDIU are met. Specifically, the Board notes that the Veteran's private treatment providers have put forth repeated statements throughout the relevant appellate period reflecting that the Veteran's service connected psychiatric disability completely precludes any type of employment. See, e.g., October 2007 Medical Certificate from I.A.B., M.D. (finding the Veteran to be "completely disable[d]" and incapable of "perform[ing] any job" due to his major depressive disorder); July 2009 Psychiatric Evaluation from M.E.F.M., M.D. (reporting that the Veteran's major depressive disorder renders him "totally unemployable" due to his "chronic severe recurrent major depression," which "markedly interfere[s with] his occupational [and] social [functioning] and [his ability to establish] relationship[s] with others"); August 2011 Report of Psychiatric Evaluation of L.C.R., Psychologist (noting that "the Veteran s major depressive symptoms are progressive [and] worsening[,] and as result he has not worked since his discharge from military duty in February 2006"; and determining that the Veteran's major depressive disorder "has manifested in severe symptoms [that] prevented him from being able to work since 2006"). Additionally, it is also noteworthy that the Veteran has been awarded Social Security Disability benefits based on the finding that his psychiatric condition and his bilateral foot conditions caused him to be disabled from June 1, 2004, forward. See July 2012 Board Decision (discussing SSA's findings); March 2008 SSA Disability Determination and Transmittal; March 2008 SSA Mental Residual Functional Capacity Assessment. Although Social Security Disability determinations are not binding on VA, such determinations may constitute probative evidence as concerning questions pertinent to VA's adjudication of the claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). And, in light of the consistency of the SSA determination with the medical evidence of the Veteran's inability to work discussed above, the Board finds SSA's disability determination to be especially probative. See Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) (reflecting that, the Board, as fact finder, must determine the probative value or weight of the admissible evidence). Furthermore, although VA examiners ultimately found that the Veteran's bilateral foot conditions and psychiatric disability did not render him unemployable, those examiners determined that his service connected conditions imposed certain restrictions on his employability. Specifically, the VA physician who conducted the December 2014 VA examination of the Veteran's feet found that that he was limited to "sedentary to light duty employment" such as "an administrative job, as a clerk, doing office work or answering telephone, a job in which he can adjust or change body position since he cannot be walking more than a few yard or stand for more than a few minutes based on his SC condition." See December 2014 VA Foot Conditions DBQ. As concerning the effects of his depressive disorder, the December 2014 examining VA psychiatrist stated that the functional effects of the Veteran's major depression include "[d]ifficulty in adapting to stressful circumstances, including work or a worklike setting" and that his "mood unstability can limit his capacity to interact effectively and on a sustained basis with other individuals," such that "[s]ocial function at work environment that involve[s] interaction with the public, responding appropriately to persons in authority[,] or cooperative behaviors involving coworkers can be limited." Given these restrictions on his employability, in light of the private medical evidence reflecting that he cannot obtain or maintain substantially gainful employment as a result of his psychiatric disability, considering the SSA determination that the Veteran was disabled as a result of the combined effects of his psychiatric condition and bilateral foot disorders, and resolving any doubt in favor of the Veteran, the Board finds that the combined effects of the manifestations of his service connected major depression and bilateral foot conditions are sufficiently incapacitating as to result in unemployability in light of the severity of his disabilities, occupational and educational history, and experience. The Board notes that each of the VA examiners concluded it is possible the Veteran could do some type of work. However, although the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Furthermore, as discussed, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16(a); Geib, 733 F.3d at 1354. Here, the VA examination reports reflect findings that, when taken together, limit the Veteran's appropriate occupation to "sedentary" work that does not require "walking more than a few yard or stand for more than a few minutes," "interact[ing] effectively and on a sustained basis with other individuals," "interaction with the public," "responding appropriately to persons in authority[,]" and "cooperative behaviors involving coworkers." However, as discussed, "substantially gainful employment" is defined as work which is more than marginal. See Moore, 1 Vet. App. 356. Accordingly, in the instant case, it is not clear that the type of work the Veteran could perform as described by the VA examiners would meet that requirement given the restrictions and/or modifications involved, especially when considering his educational and occupational experience. In sum, having carefully considered the Veteran's contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met from February 4, 2006 to December 11, 2014. See 38 C.F.R. § 4.16. See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER An initial rating of 70 percent for major depression is granted, for the entire appellate period, subject to the laws and regulations governing the payment of VA compensation. Entitlement to TDIU from February 4, 2006 to December 11, 2014 is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs