Citation Nr: 1752029	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  07-27 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an initial increased rating for depressive disorder, evaluated as 30 percent disabling prior to June 20, 2011, as 50 percent disabling from June 20, 2011, to June 6, 2013, and as 70 percent disabling from June 6, 2013. 

2.  Entitlement to total rating for compensation purposes based on individual unemployability (TDIU).

(The issues of entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318 and entitlement to pension are addressed in a separate decision.)


REPRESENTATION

Appellant represented by:	Chisholm Chisholm & Kilpatrick, Attorneys

WITNESSES AT HEARING ON APPEAL

The Appellant and the Veteran 


ATTORNEY FOR THE BOARD

E. Mine, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1958 to May 1961 and October 1961 to August 1962.  The Veteran died in August 2015 and the appellant is the Veteran's surviving spouse.  The appellant has been accepted as a substitute claimant for purposes of processing the claim to completion pursuant to 38 U.S.C.A. § 5121A (West 2014).

This appeal comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran had a hearing before the Board in August 2008.  A transcript of that hearing is of record.

This appeal was previously before the Board in September 2009, February 2011, and May 2013 and was remanded for further development. 

In a September 2011 rating decision, the Appeals Management Center (AMC) evaluated the Veteran's depression as 50 percent disabling effective from June 20, 2011.  In a June 2013 rating decision, the AMC evaluated the Veteran's depression as 70 percent disabling effective from June 6, 2013.

In a January 2014 decision, the Board denied entitlement to an increased initial rating for depressive disorder, evaluated as 30 percent disabling prior to June 20, 2011, as 50 percent disabling from June 20, 2011 to June 6, 2013, and as 70 percent disabling from June 6, 2013.  The Board also remanded the claim for entitlement to TDIU for further development. 

The Veteran appealed the Board's January 2014 decision to the United States Court of Appeals for Veterans Claims (Court).  In February 2015, the Court granted a joint motion for remand (JMR), vacating the Board's decision and remanding the claim to the Board for further proceedings consistent with the JMR.

The Veteran died in August 2015.  In October 2015, the Board dismissed the appeal due to the Veteran's death.  Subsequently, the RO properly accepted the appellant as the Veteran's substitute for purposes of processing the appeal to completion and the appeal has been appropriately returned to the Board for adjudication.


FINDINGS OF FACT

1.  Prior to June 20, 2011, the preponderance of the evidence shows that the Veteran's depressive disorder symptomatology more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

2.  From June 20, 2011, to June 6, 2013, the preponderance of the evidence shows that the Veteran's depressive disorder symptomatology more nearly approximated occupational and social impairment with reduced reliability and productivity.

3.  Since June 6, 2013, the preponderance of the evidence shows that the Veteran's depressive disorder symptomatology more nearly approximated occupational and social impairment with deficiencies in most areas.

4.  The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 30 percent for depressive disorder prior to June 20, 2011 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9434 (2017).

2.  The criteria for a rating in excess of 50 percent for depressive disorder from June 20, 2011 to June 6, 2013 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9434 (2017).

3.  The criteria for a rating in excess of 70 percent for depressive disorder from June 6, 2013 have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9434 (2017).

4.  The criteria for entitlement to a TDIU are not met, and referral to the Director of Compensation Service for extraschedular consideration is not warranted.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a).  

Once a claim of service connection has been granted, the filing of a notice of disagreement with the RO's rating of a disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See 38 C.F.R. § 3.159 (b)(3).  Therefore, further VCAA notice is not applicable in the Veteran's claim for a higher initial rating for depressive disorder.  See id.; see also, e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008).

VA's duty to notify was satisfied by a letter dated in January 2015 for the claim of TDIU.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Accordingly, the Board will address the merits of the claims.




II.  Increased Rating for Depressive Disorder

	Legal Criteria

A disability rating is 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 their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38
U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. 
§ 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Depressive Disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434.  A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.  Id.

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

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 an evaluation 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 an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.

The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

A GAF (Global Assessment of Functioning) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  This is more commonly referred to as DSM-IV.

A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends).

A GAF of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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; child frequently beats up younger children, is defiant at home, and is failing at school).

A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).

A GAF of 61 to 70 is indicative of 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, had some meaningful interpersonal relationships.

A GAF of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).

The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned.  VAOPGCPREC 10-95.  

	Factual Background

The Veteran's depressive disorder is evaluated as 30 percent disabling from July 1, 2002 to June 20, 2011, 50 percent disabling from June 20, 2011 to June 6, 2013, and 70 percent disabling from June 6, 2013.  

June 2001 VA clinical records, prior to the rating periods on appeal, but part of the history of the Veteran's disability, reflect that the Veteran's concentration level was good, and his psychomotor status was slightly slowed regarding speech.  He denied obsessions, compulsions, delusions, hallucinations, and homicidal ideation.  He had no unusual mannerisms, and good rate of speech.  He reported that he spent his time playing solitaire, gardening, doing housework, and going to the coffee shop with friends.  He saw his children and grandchildren a few times a week.  His interest level was "fine," but he was frustrated by his physical condition.  He knew someone involved with a local boys club and indicated that he would be interested in helping them or helping at a local school.

The Veteran's depression was characterized by "feeling down" and wanting to go to bed and avoid everything.  He stated that he hated to face obligations such as going to the mailbox or paying bills.  He further stated that his depression was more severe on rainy days, on days with increased pain, and on days that he had not scheduled particular things he wants to do.  It was noted that he wakes up depressed about two or three times a week and lays in bed.

The Veteran stated that he got lonely at home by himself and perks up when his wife got home from work.  It was noted that he suffers from mild insomnia.  He reported that, almost daily, he awakens feeling scared or worried for no known reason.  He denied bad dreams.  He worried about finances, although he was in fair shape financially.  He reported that if he went on a trip, he worries about money constantly and cannot enjoy himself.  It was noted that his interest level was fine, but he was frustrated by what he was unable to do physically.  He reported feeling guilty about being unable to travel with his wife due to back and leg pain.  He reported that his energy level was low, he procrastinates, his concentration was good, his memory was getting slightly worse, and his appetite was good.  He had suicidal ideations, but currently had no plan.  About one month earlier, he had thought of the method (firearm or MVA).  It was noted that a barrier to suicide was his family.  He also stated that any small improvement in his mood will remove any active suicide ideation.  He reported that he had suffered panic attacks up to 4 years ago.  The Veteran denied a history of a traumatic event, intrusive memories, or nightmares.

Upon examination in 2001, the Veteran was "pretty good" on the date of the examination, and his affect was slightly blunted at times with good range.  His speech was fluent with good rate and prosody.  His thought process was linear.  He had a GAF score of 51.

A June 2001 VA clinical record reflects that the Veteran was depressed secondary to being unable to work. 
A July 2001 VA clinical record reflects that the Veteran had been on bupropion for four weeks and reported improvement in all of his depressive symptoms to include a better mood, and increased sleep.  He and his wife talked about resuming their traveling once his leg was better.  The Veteran was appropriately groomed.  He was cooperative with the examination, his speech was within normal limitations, his thought process was logical and goal directed, and he had no suicidal ideation, homicidal ideation, auditory hallucinations, or visual hallucinations.  His mood was an 8 out of 10.  The examiner found that the Veteran had recurrent mild depression and reported significant improvement with his medication.  The clinician assigned a GAF score of 61. 

A March 2002 VA clinical record reflects that the Veteran's spells of depression were not as drastic as before, although his wife reported that he was irritable.  He was cooperative, pleasant, and had good eye contact.  His thought processes and speech were normal.  His affect was appropriate, his mood was slightly anxious, and he had no auditory or visual hallucinations, or delusions.  He had passive suicidal ideation without plan or intent.  He had no homicidal ideation.  He was alert and oriented times four with adequate judgment and insight.  His GAF score was 51.   

In sum, prior to the onset of the rating periods on appeal, the Veteran's symptoms of depression were mild, he had GAF scores from 51 to 61, he was not a persistent danger to himself or others, and he socialized with friends on a regular basis.  

A September 2002 VA clinical record reflects that Veteran denied depression but continues to endorse anxiety.  He was cooperative, pleasant to speak with, had fair eye contact, his speech was normal, his affect appropriate, and his mood was "okay."  He had no hallucinations, delusions, suicidal ideation, or homicidal ideation.  He was alert and oriented times four, and had adequate insight and judgment.  He had a GAF score of 51.

A December 2002 VA clinical record reflects recurrent mild depression with prominent anxiety.  He had occasional depressed mood.  The Veteran remained frustrated because he could not be as active as he would like but was planning to pursue woodworking as hobby because it would not be too much exertion as he could draw up plans and work with hands.  His sleep was not as good as the Veteran would like due to his pain.  He had a good response to the medication (buspirone) but his mood "continues to fluctuate."  The Veteran did not want to increase the dosage due to feeling "sedated."  The Veteran maintained good eye contact, was cooperative, had normal speech, reported that he had "good days and some bad ones," and had an affect which was congruent with stated mood (appropriate with full range).  His thought process was logical, coherent, and goal-directed.  There was no suicidal ideation, homicidal ideation, hallucinations, or delusions.  He was oriented and his judgment and insight were adequate.  The clinical impression was "good response to trial of buspirone[.]  Some mood changes but overall stable."  He continued to have a diagnosis of major depressive disorder recurrent mild with prominent anxiety.  His GAF score was 51. 

A March 2003 VA clinical record reflects that the Veteran had recurrent mild depression with prominent anxiety.  He reported that he was scared of things which he did not want to face.  He stated that he was not awakening in the middle of the night full of fear, but that he was still afraid to go to the mailbox and was fearful of being involved with conflict.  He reported that his fear of the mailbox was due to a time when "there wasn't much money and the mailbox was full of bills he couldn't pay."  The Veteran also endorsed excessive worry.  The Veteran reported that he was afraid of staying alone and stays busy helping his daughter with electrical problems or visits with friends in a coffee shop.  He again stated that his wife coming home from work was the highlight of his day.  The Veteran maintained eye contact, was pleasant and cooperative, had normal speech, non-pressured mood, and a thought process which was logical, coherent, and goal directed.  He had adequate insight and judgment, and no suicidal ideation, homicidal ideation, hallucinations, or delusions.  His GAF score was 51. 
A May 2003 VA examination report reflects that the Veteran began the examination by stating he was not doing well and said, "I have a lot of problems with my SI joint."  When asked about depression, he said "I am doing fairly good.  I would like to get off my medication but they said I could not."  It was noted that he had recently been on vacation, and that his sleep impairment was characterized by frequent awakening during the night which he attributes to back pain.  He denied having many thoughts that will bother him at the time.  He said his depression was moderate-to-worse but was better now, probably being mild.  He denied current anhedonia.  He reported suicidal ideation by history and denied homicidal ideation.  It was noted that the Veteran was still married to his wife of 41 years and that he had stated that he and his wife "generally get along fairly well."  The Veteran reported that he spends his time trying to maintain a garden and working on projects.  He visited with neighbors and went to a local coffee shop.  The Veteran denied alcohol or drug use.

The May 2003 VA examination report further reflects that the Veteran was casually groomed and fully cooperative.  No significant dysphoria was noted.  His speech was within normal limits with regard to rate and rhythm.  His mood was euthymic and his affect was appropriate to content.  The Veteran's thought processes and associations were logical and tight and no loosening of associations was noted nor was any confusion.  No gross impairment in memory was observed and the Veteran was oriented in all spheres although he did not know the exact date.  He did not complain of hallucinations.  His judgment and insight were adequate.  He denied current suicidal or homicidal ideation.  He was assigned a GAF score of 55.   

A June 2003 VA clinical record reflects that the Veteran and his wife had just completed a two week car trip to Canada, Maine, Boston, and New York.  The Veteran reported that it was a "great vacation but difficult for his back."  He and his wife had gone whale watching off the coast of Cape Cod.  The Veteran's mood was euthymic but he stated it worsens during cold months when he was more housebound.  The Veteran maintained eye contact, was pleasant, was cooperative, had normal speech, non-pressured euthymic mood, an affect which was congruent with stated mood and appropriate with full range.  His thought process was logical, coherent, and goal-directed.  He had no suicidal ideation, no homicidal ideation, no hallucinations, and no delusions.  His judgment and insight were adequate.  He was oriented times three.  The examiner stated that the Veteran was functioning at a high level.  His GAF score was 55. 

In February 2004 the Veteran reported passive suicidal ideation without plan or intent.  He reported this his love of family was a barrier to suicide.  He was assessed as being in no apparent distress and was well groomed.  He was pleasant and cooperative.  His thought process was logical and goal directed.  He reported no homicidal ideation and no hallucinations.  A GAF of 51 was assessed.  

A November 2005 VA clinical record reflects that the Veteran was well groomed, cooperative, and motivated.  His mood appeared stable with no remarkable restriction in range of affect.  His communicative ability was functional.  His thought process was linear and free of obvious psychotic content.  His insight was less than optimal.  He complained that his wife was his primary resource for emotional support though "she doesn't want to hear some things."  The Veteran complained that he was no longer being able to do things due to pain (e.g. fishing with wife or walking long distances).  Screening for depressive symptomatology via the Geriatric Depression Scale (GDS = 15/30) resulted in a significant amount of positive endorsements indicative of dysphoria, anxiety, reduced vigor, and cognitive decline.  Specific item review highlighted feelings of helplessness and worthlessness.  The Veteran reported feeling anxious but denied feeling depressed.  He denied suicidal ideation, homicidal ideation, and hallucinations.  Sleep was described as a restless eight hours nightly.  His appetite was said to be good and weight maintenance had been stable.  Pleasurable activities were reported to include camping fishing and working in his carpentry shop.  Functional decline was reported as difficulty with stumbling, manipulating buttons/zippers/laces, range of motion, lifting right foot high enough during bathing transfers, misplacing personal items, forgetting to take medicine, forgetting destination on route, and driving long distances due to pain.  It was noted that the neuropsychological assessment findings are most suggestive of Mild Cognitive Impairment (MCI) which may have heralded the emergence of a very early dementia syndrome. 

The Veteran testified at an April 2006 Board hearing that he had thought about committing suicide but his better judgment stopped him.  He reported medication helps some, but not "a lot."  He also testified that he did a "little job every once in a while for my son-in-law, he moves trailers [and] I can go and drive, only short distances [and] I do a little escort work for him driving the truck along."  He reported that he could not drive on a very long trip because his back, hips, and legs begin to bother him, but that he could drive approximately 35 or 40 miles.  The Veteran further testified that his depression began right after he started having knee and back problems and could not work as an electrician.  

A June 2006 VA clinical record reflects that the Veteran reported that his chief complaint was that he still woke up with a "scary feeling" in the morning.  It was noted that the Veteran drove "escort" for his son-in-law who moves oversized trailers, and the Veteran found the work satisfying and thought it was helping him.  It was noted that he had a GAF score of 45 on May 15, 2006.  The Veteran had good hygiene, was pleasant, had a neutral mood, and full range of affect.  His thought process was relevant, coherent, and goal directed.  He did not have suicidal ideation, homicidal ideation, or hallucinations.  The diagnostic impression continued to be mild recurrent major depression with prominent anxiety.  The clinician assigned a GAF score of 51 and noted that his mood was better than the last visit and the Veteran had been getting out of the house more and being around people.  It was noted that the Veteran was not a danger to himself or others and could continue to be seen on an outpatient basis.  

In VA treatment records dated from January 2007 to April 2007, the Veteran was assessed as being in no apparent distress and had good hygiene.  He was pleasant and cooperative as always.  His thought process was relevant, coherent, and goal directed.  He further reported no suicidal ideation, no homicidal ideation, and no hallucinations.  A GAF of 51 was assessed.  A January 2007 note states that the Veteran was not a danger to himself or others.  

A May 2007 VA clinical record reflects that the Veteran's chief complaint was that he got "very anxious."  His wife reported that he got very irritable and anxious.  It was noted that the Veteran was frustrated because he could not walk very far without being in pain and feels depressed.  He reported that the medication Lyrica helps, but he thinks it gives him "fuzzy thinking."  He was in no apparent distress and had good hygiene.  The clinician noted that he was pleasant and cooperative as always.  His thought process was relevant, coherent, and goal directed.  He further reported no hallucinations.  A GAF of 51 was assessed.  

A July 2007 VA clinical record reflects that the Veteran reported anxiety and stated "I wake up scared every morning my wife says I talk all night."  It was also noted that the Veteran reported that he had been told that he had sleep apnea.   The Veteran reported that he keeps busy gardening and working in his shop.  He reported that he had problems with "hurting anyone's feelings," and did not want to argue with or confront anyone.   

An August 2007 VA clinical record shows that the Veteran reported depression, irritable mood, and insomnia.  He stated that he and his wife were working on several projects together.  He was in no apparent distress and had good hygiene.  The clinician noted that he was pleasant and cooperative as always.  His thought process was relevant, coherent, and goal directed.  He further reported no hallucinations.  A GAF of 51 was assessed.  

A November 2007 VA clinical record reflects a chief complaint of depression.  The wife noted that the Veteran was angry and irritable.  The Veteran agreed to medication to help with irritability and anger.  There was no suicidal or homicidal ideation.  
 
VA clinical records dated in January 2008 and May 2008 report that the Veteran had no current suicidal or homicidal ideation.  He was in no apparent distress and had good hygiene.  The clinician noted that he was pleasant and cooperative as always.  His thought process was relevant, coherent, and goal directed.  He further reported no hallucinations.  A GAF of 51 was assessed.  

The Veteran and his wife testified in August 2008.  The Veteran testified that his depression had gotten "quite a bit worse" since his last VA examination in 2006.  His wife testified that it was getting far worse than it had ever been.  The Veteran reported an increase in medication.  The Veteran stated that his relationship with his family was "pretty good" and he saw them frequently in either visits or going to sporting events, but he could not tolerate them as he had once been able to.  He testified that he got coffee with three friends "once in a while."  The Veteran and his wife reported that the Veteran had panic attacks and was sometimes unable to go to the mailbox.  The Veteran reported that he had memory difficulties, and his wife also testified to such.  The Veteran stated that if he was not on his medication, he would probably sleep all the time and be really upset all the time.  The Veteran also reported that he had to stop working as a phone operator at VA due to memory problems.  He testified that he had thoughts of death "a lot of times" and that he "always seemed to overcome it, because of [his] family and what it would do to them."  The Veteran also testified that his depression had affected his sex life and that he had been told that his medication and depression are the cause of his need for a pump to have intercourse.  His wife testified that they could not go anywhere because the Veteran will have a panic attack.  She testified that they occasionally went to the lake for a few days, but then the Veteran would have a panic attack.  

The Veteran testified that on a typical day he woke early in the morning, got up around 4:30 to 5:00 a.m., went to the patio for coffee, listened to the news, and worked in the "little shop" behind his house to take his mind of things.  He testified that he went to church approximately once a month.

A September 2008 VA clinical record reflects that the Veteran and his wife believe that the Veteran was "significantly depressed."  The Veteran stated he wakes up scared/anxious in the mornings.  He reported that staying busy was the only thing that relieves anxiety.  It was noted that he and his wife had little or no contact with a daughter since they confronted her about their concern of her use of hydrocodone which she had been taking for pain.  It was noted that neuropsychological testing of November 20, 2007 revealed an impression as follows:

1.  Mildly abnormal neuropsychological test results -- consistent with subtle diffuse cortical dysfunction primarily affecting the right hemisphere likely due to chronic health conditions (e.g. DM II and vascular disease) 
2.  Normal memory function with mildly reduced attention 
3.  Abnormal MMPI-2 profile-consistent with Somatization Disorder from chronic depression and anxiety  

There were no suicidal ideations, homicidal ideations, or hallucinations.  The Veteran had good hygiene and good eye contact.  His affect was appropriate, and his thought process was relevant, coherent, and goal directed.  He continued to have a GAF score of 51.

December 2008 VA clinical records reflect that the Veteran continued to be depressed and had a GAF score of 51.  The Veteran's medication was adjusted.  The Veteran reported that he was doing better and was calmer, but his wife states that he continues to have anxiety.  He had some memory difficulty during the interview.  The Veteran and his spouse were planning on going away for at least two months.  He had good hygiene and eye contact.  His affect was appropriate, and his thought process was relevant, coherent, and goal directed.  The Veteran reported no suicidal ideation, homicidal ideation, or hallucinations.  
An April 2009 VA clinical record reflects that the Veteran denied suicidal or homicidal ideation.  He stated that he was "in a dark hole" and believed that his depression worsened after hurting his back while on vacation in Texas rupturing a disk and staying in the trailer for three weeks.  The Veteran reported that he felt hopeless about the future and felt helpless.  He reported excessive sleep, no interests, a good appetite, and poor energy.  He had fair concentration.  It was noted that he had some thoughts of self-harm but denies any current plan or intent to harm himself.  His wife agreed to lock up the guns and keep the key. 

A July 2009 VA clinical records reflect that the Veteran's medication was adjusted.  His wife reported that "He's doing a whole lot better."  The Veteran reported an improved mood and that he now "feels like getting out and working."  He reported that he was no longer was taking medication for sleep and had horrible nightmares.  He denied suicidal and homicidal ideation.  His wife reported an improvement in both mood and functioning.  He had good hygiene and eye contact.  His affect was appropriate, and his thought process was relevant, coherent, and goal directed.  The Veteran reported no suicidal ideation, homicidal ideation, or hallucinations.  The clinician assessed a GAF of 51.

An October 2009 VA neuropsychological assessment results revealed deficits in attention, memory, encoding, and processing speed as well as psychomotor ability (particularly the right hand).  It was noted that these findings, with the exception of psychomotor, are consistent with the areas of deficit identified in his 2005 testing, "although it is difficult to estimate changes in the severity of these impairments."  It was noted that compared to his testing from 2008, the Veteran showed significant decline in immediate memory and attention.  The report also reflected that the results indicated that the Veteran's cognitive decline had progressed beyond Mild Cognitive Impairment.  At the time, he showed moderate impairment in several domains of cognitive functioning particularly in areas of executive functioning.  His observed intrusive and confabulatory errors on some tests are a sign of executive dysfunction.  The Veteran's endorsement of mood disturbance and anxiety symptoms was consistent with his report from previous testing and did not explain this apparent decline in cognitive functioning.  Similarly while the report noted that the Veteran was on several medications that may have had an adverse impact on cognition, the findings were not found to be consistent with medication side effects.  The clinicians believed the pattern of cognitive decline may have signaled the presence of a dementia.

It was also noted that the Veteran did some household repairs and much of the grocery shopping while his wife manages the finances, prepares meals, and handles yard work.  It was noted that the Veteran seldom drove due to problems with fatigue, and reported no accidents or near misses while driving.  The Veteran indicated that his mood had been somewhat worse lately.  Both the Veteran and his wife reported that since the 2008 testing, the Veteran had experienced more anger particularly about "little things" according to his wife who also reported that his anxiety sometimes interferes with his ability to complete tasks.  He described frequent nightmares, some passive thoughts of death currently with no intent or plan to harm himself.  It was noted that the Veteran had been married 48 years, enjoyed fishing, woodworking, camping, and gardening in his leisure time.  The Veteran was appropriately groomed, was pleasant when greeted, and had a range of affect.

A January 2010 VA clinical record reflects that the Veteran rated his depression a seven on a scale of zero (no depression) to ten (worst depression).  He stated that he was depressed some every day, usually when he had nothing to occupy his mind. Interests include going to the coffee shop and drinking coffee with his buddies.  The Veteran was dressed casually with good hygiene and good eye contact.  His affect was appropriate, and his thought process relevant coherent and goal directed.  He did not have suicidal ideation, homicidal ideation, or hallucinations.   

A February 2010 VA clinical record reflects that the Veteran had recently added a trial of a new medication.  The Veteran initially stated that his wife thinks he was better and he believes he was less anxious but he reports depression every day all day over the past two weeks.  His sleep was reportedly good.  It was again noted that his interests included drinking coffee with his buddies once or twice a day.  The Veteran reported that he was not as angry since starting the medication, Fluoxetine.  The Veteran was dressed casually with good hygiene.  He had good eye contact, appropriate affect, and a thought process which was coherent and goal directed.  He had no suicidal ideation, homicidal ideation, or hallucinations.  He was assigned a GAF score of 51. 

The Veteran underwent a VA examination in April 2010.  The report reflects that the Veteran reported getting eight hours of sleep a night, and taking an additional two hour nap a day.  He also reported that he stayed in a "pretty good mood most days" and enjoyed camping and fishing with his wife.  The examiner noted that the Veteran's severity of depressive disorder was mild.  The Veteran reported that when he wakes up in the morning, he was not "really excited about anything;" however, his mood will generally improve after he was up and doing things.  He reported that some days, he went to a coffee shop and meets friends, and some days he will go back in the afternoon and again meets friends for coffee; this helps to improve his mood.  The Veteran also reported that he did things around the house in the yard, takes a two hour nap, works in the yard, or "piddles" around in his shop.  He did woodwork and other types of hobbies.  The Veteran also reported that he and his wife had been doing some minor remodeling work in their home over the past three years including putting in new cabinets etc., and that he enjoyed this work.  The Veteran reported that his mood most days was "fair I stay in a pretty good mood most days."  The Veteran reported that some days though he just wanted to sleep all day because he was hurting with his legs cramping and back hurting.  The Veteran reported he did not enjoy being around large crowds but did enjoy the company of family and friends, including approximately 15 grandchildren and 7 great grandchildren.  He stated that he and his wife of 48 years had a very good relationship.   

During the examination, the Veteran reported that in the 1990s he was working as an electrician and then began to have knee problems to the point that he could not climb ladders.  He stated that he subsequently began to have some back problems and his symptoms had become gradually worse over time.  He noted that he could not walk any distance and could not work.  Since leaving work as an electrician, the Veteran worked part time for the VA as a telephone operator and also had worked part time as an escort for his son-in-law driving wide loads on the highways.  The Veteran reported he was not doing any of those at the time of the exam, partly because of his significantly decreased memory.

The clinician noted that from a psychiatric standpoint, the Veteran's activities of daily living are not impaired.  The Veteran's thought processes and associations were logical and tight with no loosening of associations or confusion noted.  The Veteran was oriented in all spheres.  There was no evidence of delusions or hallucinations.  The Veteran's insight and judgment were fair.  He reported occasional suicidal ideation with no plan and no intent, and denied homicidal ideation.  He was not in need of psychiatric hospitalization at the time of this examination.  The examiner assigned a GAF score of 55.  The severity of the symptoms was deemed to be mild.  The clinician stated that the Veteran's symptoms do not preclude gainful employment nor do they have a significant impact on social functioning or behavior.  There was no impairment in thought processes or communication noted.

A June 2010 VA clinical record reflects that the Veteran reported that his wife still believes he was better since he was placed on Fluoxetine.  His biggest stressor continued to revolve around not being able to do the things he used to do.  It was noted that he had been doing a few things in his shop and working in the garden some.  The Veteran had adequate grooming, was cooperative with interview, and had good eye contact.  His affect was full and appropriate.  His thought process was relevant, coherent, and goal directed.  He had no suicidal ideation, homicidal ideation, or hallucinations.   

In a statement dated in October 2010, the Veteran noted, with regard to reports that he was well groomed, that it was his wife that makes sure that he was well groomed.  He stated that he does not "care much about how I look."  While the Veteran indicates that his wife helps him with his grooming, he had consistently been well groomed, with no evidence that he had soiled his clothing, refused to bathe, or not accepted his wife's aid in ensuring he was well groomed.  The Veteran also noted that he was unable to drive and was not supposed to use power tools, and therefore could not work.  

In a statement dated in November 2010, the Veteran's wife stated that she had worked for a number of years in hospice, and with patients who have depression and other mental health conditions.  She stated that the Veteran could not stand to be around crowds, or sit for very long.  She also noted that he stopped going to church, could not do yard work or gardening any more, could not deal with finances, sleeps a good part of the day, wakes up afraid, refuses to go to the mailbox, and that she had to lay out his clothes for him and lock up the guns and keep the key at all times. 

November 2010 correspondence from the Veteran's treating provider, M.A. APRN, reflects that the Veteran's depression had not been in remission since December 3, 2001 when the provider first began following his care.  She noted several posttraumatic stress disorder (PTSD) symptoms such as arousal, re-experience, and avoidance.  She noted that he had been unable to work for several years because of depression and anxiety.  She also noted that he had symptoms of PTSD, multiple medical problems, and dementia that progressed from mild to moderate since 2005.  She cited 2005, 2008, and 2009 neuropsychological testing which showed depression, anxiety, and dementia.  The Board notes that the Veteran does not have a competent diagnosis of PTSD based on a confirmed stressor, and he was not service connected for PTSD.  Moreover, he had been clinically found to have confabulatory memories, and in 2001, he denied any traumatic events.  Thus, the opinion of M.A. lacks probative value with regard to the Veteran's PTSD symptoms.

A November 2010 VA clinical record reflects that the Veteran and his wife reported that the addition of Prozac had helped his mood.  The Veteran's wife stated that prior to Prozac, the Veteran had an episode of paranoia related to something someone had said.  The clinician stated that the episode could have been related to Veteran misinterpreting a statement made by the physician and may not have been true paranoia.  The Veteran denied a history of hallucinations or delusions.  He also made complaints of hyper arousal, avoidance, and intrusive thoughts of a Christmas weekend while stationed in Germany.  He reported that he had witnessed his friend being stabbed with a butcher knife by another soldier.  He reported that his friend was hospitalized for a long time and then was given a medical discharge; the Veteran said that he never saw him again.  He also reported that he watched a soldier "chugging" vodka, and the soldier later died.  Finally, he reported that he was awakened in his bunk by an American Indian soldier who punched another soldier in the mouth while he lay sleeping.  The Veteran asked him why he did this and he said because he called me a blankety blank a few weeks ago.  The Veteran reported that he was very disturbed by these incidents and left for the weekend to stay with a friend until his pass was over.  

It was noted that the Veteran and his wife had not slept in the same room for years because he talks in his sleep, fights in his sleep, and had frequent nightmares.  In addition, the November 2010 record reflects that the Veteran's "observed intrusive and confabulatory errors on some tests are a sign of executive dysfunction."  Confabulation is defined as unconscious filing in of gaps in memory with fabricated facts and experiences, most commonly associated with organic pathology.  DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007).  It was also noted that "while the patient is on several medications that may adversely impact cognition these findings are not consistent with medication side effects."  There was a suggestion of a cortical dementing process.  It was also noted that certain reported (and observed) symptoms such as difficulty remembering places and directions are consistent with right hemisphere involvement.  

The November 2010 records reflect that the Veteran denied currently having thoughts of hurting or killing himself.  He was casually dressed with good hygiene.  It was further noted that he was "always pleasant and cooperative" with good eye contact.  His mood was subdued and his affect consistent with his mood. His speech was spontaneous, the rate was slow, and the volume was normal.  His thought process was relevant, logical, and goal directed.  He denied hallucinations, delusions, suicidal ideation, or homicidal ideation.  It was noted that his major depression had never been in remission, and he had multiple trials of antidepressant medications without efficacy.  

The November 2010 VA clinical record also reflects that the Veteran reported that he startles easily and if wife wants to wake him up, she uses a broom so he does not touch her.  It was noted that the Veteran could not stand being in crowds at church.   Both the Veteran and his wife complained that his memory was worse. 

A June 2011 VA clinical note reflects that the Veteran had an increase in leg and arm pain due to neuropathies.  It was noted that the Veteran had planned on taking a vacation, but it was postponed due to his wife's health.  The Veteran reported that a few days earlier, he had given his gun to his wife to lock up or hide from him because he was afraid that if he was in one of his "dark moods," he might shoot himself.  It was noted that he had no current intent or plan and on the day he gave the gun to his wife, he was not suicidal.  It was noted that he denied suicidal ideation at the examination, and denied homicidal ideation.  It was further noted that "in the past month vet had passive thoughts of dying."  The Veteran's family was a barrier to suicide.  The Veteran was casually dressed with good hygiene, and was, as always, polite and cooperative with good eye contact.  His mood was slightly subdued, he had a full range of affect.  His speech was spontaneous with normal rate and volume.  He had occasional word searching, but his thought was clear and organized.  The clinician assigned a GAF score of 51.  She also stated that in her opinion, the Veteran's act of giving the gun to his wife for safekeeping indicates that "he has had some suicidal thoughts that have scared him."  The clinician decided to increase his medication.  With regard to locking up the guns, the Board notes that although the Veteran reported that he had given the gun to his wife a "few days" earlier, the evidence reflects that it was actually in 2009 when his wife agreed to lock up the guns, and she had done so by November 2010.   

A February 2012 VA clinical note reflects that the Veteran was, "as always," pleasant and cooperative with good eye contact.  It was noted that he enjoys talking, but reported that he was worried.  He had a full range of affect, normal speech and was "chatty."  His thought process was relevant, logical, and goal directed.  He had no suicidal ideation, or homicidal ideation.  The Veteran was noted to be more anxious after a diagnosis of AF (Atrial fibrillation).  The clinician assigned a GAF score of 51.  It was noted that he had recurrent moderate to severe major depressive disorder. 

An April 2012 VA clinical note reflects that the Veteran's wife reported that he stays in bed "about half the time."  The Veteran acknowledged that his energy level was low but reported that he stayed in bed because of pain.  He endorsed nightly nightmares about being stabbed or hurt in some way.  It was noted that he was dressed casually with good hygiene, and was, as always, polite and cooperative.  He had good eye contact.  He reported that his wife exaggerates his mood problems.  He had a full range of affect, normal speech, and his thought process was relevant, logical, and goal directed.  He was not suicidal, homicidal, or psychotic.  The clinician assigned a GAF score of 51.  

A July 2012 VA clinical note reflects that the Veteran did not think that depression was a problem, but his wife reported that the Veteran "drives her to distraction with his stubbornness and irritability."  It was noted that a typical day begins with him driving to a local coffee shop for coffee with friends, going back home for breakfast, watching television until noon, having lunch, taking a nap, having dinner, and watching television until bedtime around 8:30 pm.  He denied suicidal ideation.  It was noted that he was dressed casually with good hygiene, and was pleasant, polite and cooperative.  He had good eye contact.  He reported that his wife exaggerates his mood problems.  He had a full range of affect, normal speech, relevant, and logical and goal directed thought process.  He was not suicidal, homicidal, or psychotic.  The Veteran denied feeling depressed and stated that his biggest problem was his pain and inability to enjoy the activities that he once did.  The clinician assigned a GAF score of 51.  

In a March 2013 statement, the Veteran reported that his depression had worsened.  He stated that he slept most of the time, except nights when he was kept awake by things on his mind.  On those occasions, the Veteran indicated he had to take anxiety medication to get to sleep.  The Veteran's wife also submitted an April 2013 statement, in which she reported that the Veteran stays depressed almost all the time, sleeps approximately 75 percent of the day, and had lost interest in "just about everything." 

An April 2013 VA clinical note reflects that the Veteran's wife reported that the Veteran sleeps much of the day.  However, it was also noted that he went out for coffee twice a day with friends, eats his meals with his wife, and watches a favorite television program.  It was noted that he had a good interest in doing some things which he physically could not do, feels guilt for some things, had very little energy, "not good" concentration, and no psychomotor retardation.  He responded that his appetite was "too good."  With regard to suicidal ideation, it was noted that he did not contemplate suicide because it would "be too much of a burden to my family."  He further stated "I've never been suicidal" and that suicide was completely wrong and very unfair to the family.  He described his faith as a barrier to suicide.  He had no homicidal ideation.  The Veteran was dressed with good hygiene, had good eye contact, a full range of affect, normal speech, oriented times four, and easily engaged in conversation.  He reported attention/concentration problems, but no memory problems.  The clinician assigned a GAF score of 51 and found that the Veteran had moderate to severe major depressive disorder.   

A June 2013 VA clinical note reflects that the Veteran had good hygiene, a pleasant and cooperative behavior, and good eye contact.  He had a full range of affect, normal speech, and a relevant and logical thought process. He had no suicidal ideation, homicidal ideation, or hallucinations.  He was oriented times four, and had an intact memory.  The clinician assigned a GAF score of 51.

A June 2013 VA examination report reflects that the Veteran had "moderate" major depressive disorder.  He was assigned a GAF score of 49.  The examiner was able to differentiate which of the Veteran's symptoms were related to his service-connected depression from his nonservice-connected dementia.  The Veteran's depression resulted in his excessive sleep, anhedonia, lethargy, and irritability.  The Veteran's nonservice-connected dementia resulted in his memory deficits and related anxiety.  The examiner found that the Veteran's depression symptoms resulted in occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent rating.  

The June 2013 VA examination report reflects that the Veteran had a good relationship with his wife, children, and grandchildren.  The Veteran and his wife were estranged from one daughter.  The Veteran reported that he got nervous when his family all comes over at the same time.  The Veteran also reported that he sleeps excessively to escape his problems and physical pain.  The Veteran reported that he drives three miles to meet friends for coffee, and drives some on vacations but depends on his wife to ensure that he was going in the right direction.  The Veteran reported suicidal ideation but denied plan or intent.  The Veteran's wife reported that the Veteran asked her to take possession of his hand gun approximately one year ago because of safety concerns.  The Veteran's wife indicated that he had asked for it back several months prior, but she did not return it to him.  She further reported they had discussed with provider who confirmed decision to keep guns away from Veteran.

The June 2013 VA examination report also reflects that the Veteran's symptoms were noted to be depressed mood, mild memory loss, disturbances of mood and motivation, difficulty in adapting to stressful situations, anxiety, and suicidal ideation.  The Veteran was diagnosed with moderate major depressive disorder.

The Veteran was afforded a VA examination in February 2015.  The Veteran reported that he had been married for approximately 54 years.  He reported that he isolated from his family and went to another room when they visit.  The night prior to the examination the Veteran had had dinner with his family and reported that it was okay and did not bother him.  He also reported having coffee several times a week with friends at a local coffee shop.  The Veteran stated that his current symptoms included excessive sleep, 12 to 14 hours throughout the day, and low motivation.  The examiner noted that at the time of the examination, the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in mood or motivation, difficulty adapting to stressful circumstance, and suicidal ideation.  The Veteran presented as alert and fully oriented.  He reported feeling "alright."  He displayed an euthymic affect.  His eye contact was great and hygiene was unremarkable.  The examiner noted that both the Veteran and his wife were cooperative.  The Veteran did not present with any bizarre or peculiar preoccupations and did not report any to the examiner.  No formal delusional material was elicited or reported.  The Veteran reported that he had experienced suicidal thoughts at one time, and his wife had taken the keys to his gun safe.  However, he reported no suicidal or homicidal thoughts at the time of the interview.  The examiner opined that the Veteran's symptoms appeared to be moderate to severe and had persisted for approximately eight years, per the reports of the Veteran and his wife.  According to the examiner, the precipitating factor had been the problems with his knees that began around this period.  The Veteran's thought content, thought processes, and speech were unremarkable.  His appearance was adequate and behavior was adequate.  The examiner noted that both the Veteran and his wife were quite pleasant and smiled/joked during the interview.  The examiner's impression was that the symptoms reported did not appear to be more severe than the symptoms reported during the last review.

The Veteran was examined by Dr. Robert Nisbet in June 2015.  The Veteran reported that he was depressed and had been for years.  The Veteran dated the onset of his depression to his active duty.  He said his mood had been down and for the last year or so he had slept most of the time.  The Veteran reported that his interest, energy, and concentration were significantly diminished and he felt guilty that he could not work and be active with his family as he once was.  He stated that his appetite was diminished as he was frequently nauseated.  The Veteran reported frequent thoughts of suicide, felt hopeless, and felt his future was bleak.  He believed such thoughts were getting worse.  The Veteran reported that caring for his wife had been the factor that prevented his acting on his thoughts.  He stated his depression kept him from working since before the year 2000.  He also reported significant difficulty with pain in his right knee, which he injured while on active duty.  He required total right knee arthroplasty in 2001 and had never really been gainfully employed since that time.  He also experienced significant anxiety and could not identify a specific stressor.  The Veteran reported that his anxiety limited his ability to deal with stress and caused avoidance of socializing or even going to the mailbox to check his mail.  The Veteran indicated that he avoided people, had stopped going to church, and could not talk long on the telephone.  The Veteran felt he was absolutely unable to work.  

The examiner also interviewed the Veteran's wife.  She stated that the Veteran had been depressed with significant symptoms for the previous 15 to 20 years.  The Veteran's wife reported the Veteran had been unable to work, and she had been aware and very worried about his suicidal ideation.  She stated that she felt the Veteran was embarrassed and minimized his symptoms to his physicians.  According to her report, the Veteran avoided people and was so anxious he was unable to do complete tasks such as going to mailbox or answer the phone.  She felt his symptoms had absolutely precluded his ability to work productively or earn a living prior to 2002.  She stated that the Veteran spent most of his time in bed.  

Dr. R.N. then opined that the Veteran qualified for a disability rating of 100 percent since 2002.  In the doctor's opinion, the Veteran had a total occupational and social impairment due to his depression and anxiety, as well as persistent thoughts of harming himself.  The doctor also determined that because of his anxiety and depression the Veteran had been unable to perform the activities of daily living, such as going to the mail box, answering the telephone, and attending church.  The doctor opined that at a minimum the evidence supported a rating of 70 percent back to 2002 due to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood.  Further, the doctor stated that it was at least as likely as not that the Veteran was unable to secure or follow substantially gainful employment due to his service connected depressive disorder since July 1, 2002 and up to the present day.

The February 2015 VA examiner provided an addendum opinion and the Veteran was again afforded a VA examination in June 2015 in order to consider and comment on the June 2015 private evaluation conducted by Dr. R.N.  The VA examiner noted that Dr. R.N. diagnosed the Veteran with major depressive disorder, chronic, severe, as a result of his physical condition, a right knee arthroplasty.  The examiner also noted that the Veteran suffered from several other medical conditions that were not service connected.  The examiner noted the Veteran's MMPI-2 profile from November 2008 was consistent with Somatization Disorder, which consists of symptoms of complaints for several physical or medical conditions.  The examiner further noted that a social work evaluation dated in February 1999 documented situational depression after the Veteran quit his job as a telephone operator in December 1998 due to neck pain.  A Mental Health Diagnostic Assessment dated June 1, 2001 documented the Veteran complained of depression symptoms due to back and knee pain.  The mental health medication management notes for depression include several complaints that impact mood and not just knee pain.  Therefore, the examiner concluded that Dr. R.N.'s diagnosis of major depressive disorder, chronic, severe, due only to right knee arthroplasty was not consistent with the Veteran's records.  The examiner further found that the Veteran's history was not consistent with cognitive/memory problems after the onset of depression, but was consistent with these problems as his dementia progressed.  The examiner further opined that the Veteran's major depressive disorder would likely cause limitations with social functioning such that he would likely perform best in contexts that did not require frequent contact with the public and would perform best on work tasks that did not require coordinated efforts with co-workers and was more independent in nature.  The examiner additionally found that there was no evidence that depressive symptoms, as a result of his knee condition, precluded employment in the past and depressive symptoms due to knee pain did not render the Veteran unable to secure or follow a substantially gainful occupation at the time of the opinion.

In a September 2016 statement, the Veteran's wife reported that she and Veteran had been married for 54 years.  She noted that she was a retired nurse and indicated that her statement was her assessment of the Veteran's medical conditions.  The Veteran's wife reported that the Veteran had been extremely nervous since returning from service.  She stated that he could not be around crowds, had disturbed sleep, isolated in the house due to paranoia, was very nervous and afraid to be alone, did not go to family events, was extremely claustrophobic, and got easily agitated with other people.  She reported that the Veteran's only friends were a couple of other Veteran's from the VA.  According to her account, the Veteran would spend days alone in his room and she often had to prompt the Veteran to shower, after which he would return to bed.  She reported that the Veteran had tried to work over the years but could not handle the stress of having to interact with other people and was never able to maintain any type of substantial income, never lasting at a job more than a year.  She reported that eventually the Veteran was unable to go back to work due to his depression and anxiety.
In a July 2017 letter, Dr. R.N again opined that the Veteran qualified for a 100 disability rating since 2002.  In the doctor's opinion, the Veteran had a total occupational and social impairment due to depression and anxiety and had persistent thoughts of harming himself.  Further, the doctor felt it was at least as likely as not that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected depressive disorder since July 1, 2002 and up to the day of his examination in June 2015.  

The doctor also offered an opinion as to the sufficiency of a VA examination conducted in February 2015.  In his opinion, while the VA examiner had concluded that the Veteran's depression had not significantly worsened, the findings in the examination report described a much more serious depression.  He noted, for example, the Veteran suffered from a depressed mood, had anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting.  Dr. R.N. concluded that the VA examiner appeared to have come to conclusions based on the fact that the Veteran appeared in no major distress at the time of the interview.  

However, Dr. R.N. noted that the VA examiner did not get collateral information from the family about the Veteran's ability to function under stress.  The doctor noted that he had interviewed the Veteran's wife and children, all of whom stated that the Veteran was completely unable to function in stressful situations.  He noted that the Veteran's son had driven him everywhere he went, and the Veteran's wife was constantly greatly concerned that the Veteran would take his own life.  Dr. R.N. noted that the Veteran had been unable to tolerate bad news, nor the possibility of learning of bad news, such that he would not even risk reading his mail because of his extreme anxiety associated with his depression.  According to the doctor, the Veteran retreated to his room and slept most of the time.  At the time of the interview, the Veteran's wife reported to Dr. R.N. that the Veteran felt a need to present himself in a good light when he went to his VA appointments because of his shame.  

According to the doctor's review of the record, he found that the Veteran was chronically depressed, anxious, having thoughts of suicide, and had considered a plan.  He noted that the Veteran stated he was forced to stop working in 2000 because of pain, anxiety and depression and could not tolerate being around people.  He further indicated that the Veteran reported feeling hopeless and had lost all sense of motivation.  The family, according to the doctor's report, was extremely concerned about the Veteran, and had taken his guns away from him.  Dr. R.N. further noted that that the Veteran was usually given a GAF rating by the VA ranging from 49 to 55; however, in his opinion, evidence of suicidal ideation significant enough to cause a family to feel that guns must be removed usually denotes a GAF rating in the 20s.  It was Dr. R.N.'s opinion the VA examiner submitted a "check-the-box" report, and did not give extensive information about the Veteran's thoughts, feelings or the current quality of his life.  Dr. R.N. added that the Veteran appeared severely depressed and at least mildly demented at the time of the 2015 assessment.  Dr. R.N. concluded that it was impossible to ascertain whether this was a dementia or pseudo-dementia secondary to his depression.

	Analysis

In rendering its decision, the Board had considered the entire claims file, to include the records noted above, the statements of the Veteran and his wife, the reported symptoms, and the GAF scores.  The probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993).  There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule."  See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993)

The Board finds that the Veteran's depression symptoms do not warrant a 100 percent rating for any period on appeal.  Again, the Board is mindful that in order to be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria.  The Board has considered the examples in the rating criteria for a 100 percent evaluation and notes that the Veteran's depression does not result in gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of harming himself or others; intermittent inability to perform the activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.  

The evidence does not show that the Veteran was in persistent danger of hurting himself or others.  The Board recognizes that the Veteran had described suicidal ideation on a number of occasions including in June 2001, March 2002, February 2004, April 2009, October 2009, June 2011, June 2013, and February 2015.  However, in each instance, the Veteran also reported that he had no plan or intent to harm himself.  Moreover, there is no evidence of record that the Veteran ever attempted to harm or kill himself at any point during the appeal period.  Additionally, the Veteran repeatedly stated that his family was a barrier to his committing suicide.  Furthermore, the overwhelming number of clinical visits reflect that he did not have suicidal ideation (e.g. September 2002, May 2003, June 2003, November 2005, September 2008, June 2009, June 2010, November 2010, June 2011, March 2012, April 2012, April 2013, and June 2013).  The Board has also considered statements from the Veteran and his wife that she had to keep his gun locked up.  There has been some inconsistency in their statements.  An April 2009 record reflects that his wife agreed to lock up the guns, and a November 2010 statement reflects that she had locked them up.  Nevertheless, in June 2011, the Veteran stated that his wife had locked them up a few days earlier, and in June 2013, his wife stated that she had locked them up approximately one year earlier.  The Board finds that as early as April 2009, the Veteran's wife had locked up the guns in the home.  Therefore, when considered as a whole, the evidence does not reflect that the Veteran was in persistent danger of harming himself.

As a whole, the opinions and GAF scores of 49 to 55 do not reflect that the Veteran had a total occupational and social impairment.  In addition, the evidence continually reflects that during the entire rating period on the appeal, the Veteran had remained married, had friends, and socialized on a daily basis at the coffee shop.  He also had hobbies, and does some traveling.  

The Board finds that the evidence is against a finding that the Veteran's depression symptoms caused total social and occupational impairment, and the Veteran's depression symptoms do not warrant a 100 percent rating for any period on appeal.  See Mauerhan, 16 Vet. App. at 442.  Thus, an increased rating from June 6, 2013 is not warranted, and a 100 percent rating is not warranted at any time during the course of the appeal.

Next, the Board will discuss whether the Veteran's depression warrants a 70 percent rating for any period on appeal prior to June 6, 2013.  The evidence is against a finding that the Veteran had 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; spatial disorientation; or an inability to establish and maintain effective relationships.  The evidence reflects that he had maintained a marriage of more than four decades, enjoys spending time with his children and grandchildren, and sees his friends daily.  

The Veteran's wife has stated that he was irritable, but the evidence does not reflect periods of violence.  As noted above, the Veteran has not been found to have neglected his personal appearance of hygiene.  Moreover, although the Veteran stated that he does not care much about how he looks, the evidence does not reflect that he had an inability to maintain minimal personal hygiene.  Even if it was the Veteran's wife that helped him get dressed, this factor alone does not warrant a 70 percent rating when considered with the other evidence of record.  The Board also notes that the evidence reflects that the Veteran had expressed difficulty with stress; however, his overall condition does not rise to the level which warrants a 70 percent disability rating period to June 6, 2013. 

The Board recognizes that the Veteran's depression increased in duration from two to three times a week in 2001 to every day in 2010.  Even considering this increase in frequency, the Board finds that a higher rating is still not warranted.  While the Veteran had depression, it has not been adequately shown to affect his ability to function independently.  He was able to drive to the coffee shop up to twice a day to have coffee with his friends, go grocery shopping, and do household chores.  As discussed above he had suicidal ideation on a few occasions but it has not been constant, and on the overwhelming number of clinical examinations, he denied suicidal ideation (e.g. June 2006, November 2007, September 2008, December 2008, April 2009, January 2010, February 2010, June 2010, November 2010 records).  He also went on vacation (e.g. June 2003 record), drove an escort vehicle for his son (e.g. June 2006 record), kept busy gardening and doing some work in his shop (e.g. July 2007 record), enjoyed fishing, woodworking, camping, and gardening (e.g. October 2009, April 2010, and June 2010 records) did household repairs (e.g. October 2009 record), and enjoyed spending time with family and friends (e.g. April 2010 record).

The record shows that the Veteran had some periods of excessive sleeping.  See, e.g. VA treatment records dated in April 2009, April 2010, November 2010, April 2012, and March 2013.  On two of those occasions the Veteran reported that he stayed in bed due to pain, not depression.  See April 2010 VA treatment record; April 2012 VA treatment record.  Moreover, despite the reports of excessive sleeping, the Veteran, as described above, was able to be active and function independently.  As an example, in April 2013 the Veteran's wife reported that the Veteran slept most of the time; however, he was still able to go to coffee with friends twice a day and had meals with his wife.  Therefore, while the Veteran certainly had some periods of excessive sleep, there is no evidence that they were near-continuous and affected his ability to function independently.

The evidence is against a finding that he had an inability to establish and maintain effective relationships, or that his disability symptoms are severe enough to warrant a 70 percent disability rating for any period prior to June 6, 2013; thus, a rating in excess of 50 percent from June 20, 2011 is not warranted.   

Next, the Board will discuss whether the Veteran's depression warrants an evaluation of 50 percent for the period prior to June 20, 2011.  The depression was rated as 30 percent disabling prior to June 20, 2011.  A 30 percent rating is warranted when symptoms cause 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).  Examples of possible symptoms are as follows: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).  

The Veteran would be entitled to a 50 percent rating if the evidence reflects that his depression caused occupational and social impairment with reduced reliability and productivity.  The evidence is against a finding that the Veteran's depression had symptoms of circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships.

The Veteran's speech had been evaluated as normal on the majority of occasions (e.g. 2001, March 2002, September 2002, December 2002, May 2003).

The evidence does not reflect that the Veteran's depression caused panic attacks more than once a week or difficulty in understanding complex commands. 

The Veteran's insight and judgment were evaluated as normal on the majority of occasions (e.g. March 2002, September 2002, December 2002, March 2003, May 2003, June 2003, and 2010).

The Veteran consistently denied hallucinations or delusions (e.g. September 2002, December 2002, March 2003, June 2003, September 2008, January 2010, February 2010, June 2010, November 2010).

The Veteran was consistently been oriented upon examination (e.g. September 2002, December 2002, March 2003, May 2003, June 2003, and 2010).

The Veteran consistently had a logical thought process (e.g. March 2003, may 2003, June 2003, June 2006, September 2008, January 2010, February 2010, April 2010, June 2010, November 2010).

The Veteran was consistently been able to maintain effective social relationships.  The evidence reflects that the Veteran's physical disabilities prevent him for doing many activities which he would like to do, which in turn makes him depressed.  The depression does not prevent him from socializing with friends and family, doing grocery shopping, or household chores.  

The Board has also considered the Veteran's mood and depression.  He had been described by clinicians as always being cooperative and polite.  His wife described him as irritable (e.g. March 2002, May 2007, November 2007, and October 2009).  His depression was routinely described as mild by clinicians (e.g. December 2002, March 2003, June 2006, and April 2010).  There were also times when the Veteran reported that he did not have depression (September 2002), had only occasional depressed mood (December 2002), was "doing fairly good" with regard to his depression (May 2003), did not have depression (November 2005), and was "doing a whole lot better and feels like getting out and working" (July 2009).  However the Veteran had, at times, described his mood as having gotten quite a bit worse with regard to his depression (August 2008), being "significantly depressed "(September 2008), being in "a dark hole (April 2009), and having depression which was a 7/10 and occurring every day (January 2010).  

The record reflects that in November 2005, the Veteran began having symptoms of the early stages of dementia.  The Board acknowledges that the Veteran and his wife are competent to report their observable symptoms of his mood.  The Board also acknowledges that the Veteran's wife has stated that she has worked with many patients who have major depression and other mental health conditions.  The Veteran and his wife have indicated that he had sexual problems due to his depression; however, the evidence reflects that the Veteran had previously reported that he had problems with erections since a back disability (See May 2001 record) and that he had a low sex drive which he believed was due to his hypertension medication (See March 2001 record).  

Finally, the Board acknowledges that the Veteran's symptoms have waxed and waned over the rating period on appeal.  However, the Board finds that the VA examinations reports are most probative of the overall level of the Veteran's service-connected depression as they are based on clinical observation by medical professionals.  The April 2010 VA examiner found that the Veteran's depression was only mild.  The Board has considered the Veteran's symptoms with regard to the 30 percent and 50 percent evaluations and finds that the Veteran's symptoms more closely resemble a 30 percent evaluation for the period prior to June 20, 2011.  The Board has considered that the Veteran had been on medication during this time, and undergoing therapy.  The Board has also considered that he suffers from nonservice-connected dementia which was responsible for memory problems and anxiety.  

The Board acknowledges the June 2015 and August 2016 private medical opinions provided by Dr. R.N. in which the doctor opined that the appropriate disability rating for the Veteran's depressive disorder was 100 percent beginning July 1, 2002.  However, the symptoms observed by Dr. R.N. during the June 2015 examination simply do not describe the symptoms required for that rating, and the Board places more weight on the recorded symptoms rather than Dr. R.N.'s unsupported opinion of the appropriate disability rating.  Moreover, assignment of an evaluation under the Schedule is the responsibility of the finder of fact, not the examiner.  The adjudicator is charged with interpreting the competent and credible evidence of record as whole and reconciling such to accurately reflect the disability.  Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2.  While medical and lay opinions regarding the extent of functional impairment are evidence to be considered, the ultimate factual determination lies with the adjudicator.  As an adjudicator may not substitute his or her own opinion for medical judgment, Colvin v. Derwinski, 1 Vet. App. 171 (1991), a medical opinion cannot subvert the responsibility of the fact finder.  Moore, 555 F.3d at 1373.

Finally, the Board also acknowledges Dr. R.N.'s July 2017 critique of the February 2015 VA examination.  Dr. R.N. expressed concern that the VA examiner had not considered the Veteran's family's assessments of his symptomatology.  However, examination reports must be "read as a whole" and a medical examiner is not required to provide a detailed review of medical history or comment on every piece of favorable evidence in the record.  Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); see Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement).  There is nothing to suggest that the February 2015, or any other VA examination for that matter, was inadequate or did not fairly and completely discuss the Veteran's symptomatology.  The Board observes that the Veteran's family, especially his wife, have provided detailed information about his symptomatology, which has been considered by the Board as reflected above.  Thus, the Board is not persuaded by Dr. R.N.'s critique of the February 2015 VA examination report.

In sum, the Board concludes that based on the symptomatology described in the evidence of record, prior to June 20, 2011, a rating in excess of 30 is not warranted; for the period from June 20, 2011 to June 6, 2013, a rating in excess of 50 percent is not warranted; and from June 6, 2013, a rating in excess of 70 percent is not warranted.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).  These ratings contemplate the severity, frequency, and duration of the Veteran's symptoms and are based on all of the evidence of record rather than any isolated medical finding or assessment of level of disability.  See 38 C.F.R. § 4.126(a).  The Board has considered the doctrine of giving the benefit of the doubt, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application.  Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

III.  Entitlement to a TDIU

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16 (2017).  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 (2017).

"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) (2017).
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) (2017).  Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b).

A February 2015 JMR indicated that the Board should review a November 2006 rating decision to determine if a claim for TDIU was denied and appealed at that time, and review an April 2006 hearing transcript to determine if testimony at that time raised a claim for TDIU.  A review of the November 2006 rating decision shows that the Veteran was granted entitlement to service connection for depressive disorder.  TDIU was not an issue before the RO.  The Veteran filed a notice of disagreement in March 2007 in which he stated he disagreed with "all issues of rating decision dated November 3, 2006."  As the only issue in the November 2006 rating decision was the grant of service connection for depression, the Veteran could not have appealed a claim for TDIU.  

Turning to the April 2006 hearing testimony, the Veteran testified that he was not working.  However, he further testified that he worked part-time doing jobs for his son-in-law which required driving.  Moreover, none of the claims before the Board at the time included a claim for entitlement to an increased rating for a service-connected disability.  Therefore, the Board finds that a claim for TDIU was not reasonably raised by the Veteran's April 2006 testimony.  

A claim for TDIU was raised by November 2010 correspondence, in which the Veteran's treating provider, M.A. APRN, stated her opinion that the Veteran had been unable to work for several years because of depression and anxiety.  

At the time of his death, the Veteran's service-connected disabilities included depressive disorder, rated as 30 percent from July 1, 2002, 50 percent from June 20, 2011, and 70 percent from June 6, 2013; right total knee arthroplasty, rated as 100 percent from June 18, 2001, 100 percent from August 1, 2001, and 30 percent from August 1, 2002; arthritis of the right knee, rated as 10 percent from May 15, 1997, and 20 percent from May 11, 1999, to June 18, 2001; and chondromalacia right knee, rated as 10 percent from June 21, 1972, and 20 percent from May 11, 1999, to June 18, 2001.  Prior to June 20, 2011, the Veteran's combined disability rating was 50 percent from August 1, 2002.  Therefore, prior to that date, the Veteran did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a).  However, the Veteran's combined disability rating had been 70 percent from June 20, 2011, and 80 percent from June 6, 2013, and has therefore met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a).

The evidence of record shows that the Veteran was not employed during the relevant period.  A July 2015 statement of earnings shows that in 2002 and 2003 the Veteran was employed by James Electric Inc.  There is no indication that the Veteran was employed full time after that.  Additionally, the Veteran and the Veteran's wife have reported that the Veteran was not working. 

During the February 2015 VA psychiatric examination, the Veteran reported that he had completed the 11th grade and received his GED while in the military.  After he left the military, he worked for a year and a half as a body shop trainee, and then worked for Reynold's Medal Company for 23 years.  He stated that he had never been fired from a job and did not report any other problems in the work context.  He told the examiner that he had also worked for himself for seven years in an electrical and heating/air company with no problems.  The Veteran then worked for VA as a telephone operator for about three years and for another company for two years.  The Board also notes that the Veteran left his job as a telephone operator in 1998 due to neck pain, for which the Veteran is not service connected.  Likewise, the Veteran reported that he stopped working with his son-in-law and as a VA telephone operator due to his memory problems, which have been attributed to non-service-connected dementia.  

As to the impact of the Veteran's service-connected knee disability on his ability to work, the Board finds persuasive a February 2015 VA examination.  The examiner noted that the Veteran had abnormal range of motion, but it did not contribute to any functional loss.  However, the examiner found that the Veteran experienced pain on flexion and on weight bearing, which did cause some functional loss.  Likewise, the examiner found that pain significantly limited functional ability with repeated use over time.  The examiner noted that the Veteran could not use ladders or steps.  Finally, the examiner reported that the Veteran could only walk 50 feet due to his right knee condition and opined that the Veteran's right knee disability prevented him from seeking and maintaining physical employment, but not sedentary employment.  

As to his service-connected depressive disorder, in November 2010 correspondence, the Veteran's treating provider, M.A. APRN, stated her opinion that the Veteran had been unable to work for several years because of depression and anxiety.  In June 2015 and September 2016, Dr. R.N. opined that the Veteran's depression had kept him from working since before the year 2000.   In June 2015, the Veteran told Dr. R.N. that his depression had prevented him from working since before 2000; however, in April 2006, the Veteran testified at a Board hearing that his depression had started when he was no longer able to work as a master electrician.

The Board finds persuasive a June 2015 a VA examiner's opinion, which found that the Veteran's Major Depressive Disorder, Moderate, Recurrent (secondary to right knee arthroplasty) would likely cause limitations with social functioning such that he would likely perform best in contexts that did not require frequent contact with the public and would perform best on work tasks that did not require coordinated efforts with co-workers and is more independent in nature.  The examiner additionally found that there was no evidence that depressive symptoms, as a result of his knee condition, precluded employment in the past and depressive symptoms due to knee pain did not render the Veteran unable to secure or follow a substantially gainful occupation at the time of the opinion. 

Thus, the record indicates that the Veteran's disabilities had an adverse effect on his ability to secure or follow employment in physical labor or that required frequent contact with the public; however, it does not establish that his disabilities prevented him from being able to perform other more independent sedentary labor.  The Board has also considered the Veteran's occupational and educational history.  According the Veteran's statements, he worked as a telephone operator for VA, indicating that he could have, at a minimum, done sedentary work.  Therefore, the objective evidence of record does not support a finding that the Veteran's service-connected disabilities, when considered along with his educational and occupational history, prevented him from securing or following any type of substantially gainful employment.  Instead, the evidence indicates that more likely than not, the Veteran would have been able to secure or follow, at a minimum, sedentary employment. 

In light of the foregoing, the Board concludes that the most probative evidence of record weighs against a finding that the Veteran's service-connected disabilities prevented him from securing or following any substantially gainful employment. Instead, the record indicates that at a minimum, the Veteran likely would have been able to perform independent sedentary work.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).  Further, prior to June 20, 2011, the Veteran's disability rating did not meet the criteria for a schedular TDIU, but for the reasons set forth above, the Board finds that referral to the Director of Compensation Service for extraschedular consideration is not required, as the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disability.  


ORDER

Entitlement to an initial increased rating for depressive disorder, evaluated as 30 percent disabling prior to June 20, 2011, as 50 percent disabling from June 20, 2011 to June 6, 2013, and as 70 percent disabling from June 6, 2013 is denied.

Entitlement to a TDIU is denied.





____________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs