Citation Nr: 18140190 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 10-27 594A DATE: October 2, 2018 ORDER The claim that a timely substantive appeal was received as to a July 2004 RO rating decision is denied. An effective date for service connection prior to December 12, 2007 for service-connected major depressive disorder is denied. Prior to January 8, 2014, an initial evaluation in excess of 50 percent for service-connected major depressive disorder is denied. As of January 8, 2014, and no earlier, a 100 percent evaluation for service-connected major depressive disorder is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. In a July 2004 rating decision, the RO denied claims for service connection for hearing loss, right ear, rib contusion, right elbow strain, numbness arms and legs, left ankle sprain, knee sprains, vasectomy and reversal of vasectomy, residual from laceration right medial calf, recurring throat infections, recurring ear infections, chest pains, left shoulder sprain, hypertension, residual of battery acid in left eye, and right shoulder rotator cuff tear, and granted service connection for hallux valgus, left foot, evaluated as 10 percent disabling, hallux valgus, right foot, evaluated as 10 percent disabling, neuroforaminal stenosis, L4-L5, evaluated as 10 percent disabling, hemorrhoids, evaluated as 10 percent disabling, gastroesophageal reflux disease, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia, evaluated as 10 percent disabling, psoriasis, evaluated as 10 percent disabling, degenerative disc disease, neural foramen at C4-C5, and C3-C4, evaluated as noncompensable, bilateral inguinal hernia repairs, evaluated as noncompensable, and hearing loss, left ear, evaluated as noncompensable; the appellant was informed of this decision by correspondence dated July 12, 2004. 2. On July 1, 2005, a Notice of Disagreement was received as to the July 2004 decision; on November 7, 2005, a Statement of the Case was mailed to the appellant. 3. On January 11, 2006, and no earlier, a VA Form 9 was received; a timely VA Form 9, substantive appeal, is not of record pertaining to any of the issues adjudicated in the July 2004 RO rating decision. 4. In August 2014, the RO granted service connection for major depressive disorder; the RO assigned an effective date for service connection of December 12, 2007, the earliest date allowable by law. 5. Prior to January 8, 2014, the Veteran’s service-connected major depressive disorder is not shown to have caused occupational and social impairment, with deficiencies in most areas. 6. As of January 8, 2014, and no earlier, the Veteran’s major depressive disorder is shown to have been productive of total occupational and social impairment. 7. The Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. A timely substantive appeal was not filed as to the RO’s July 2004 decision, which denied service connection for hearing loss, right ear, rib contusion, right elbow strain, numbness arms and legs, left ankle sprain, knee sprains, vasectomy and reversal of vasectomy, residual from laceration right medial calf, recurring throat infections, recurring ear infections, chest pains, left shoulder sprain, hypertension, residual of battery acid in left eye, and right shoulder rotator cuff tear, and which granted service connection for: hallux valgus, left foot, evaluated as 10 percent disabling, hallux valgus, right foot, evaluated as 10 percent disabling, neuroforaminal stenosis, L4-L5, evaluated as 10 percent disabling, hemorrhoids, evaluated as 10 percent disabling, gastroesophageal reflux disease, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia, evaluated as 10 percent disabling, psoriasis, evaluated as 10 percent disabling, degenerative disc disease, neural foramen at C4-C6, and C3-C4, evaluated as noncompensable, bilateral inguinal hernia repairs, evaluated as noncompensable, and hearing loss, left ear, evaluated as noncompensable. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 20.200, 20.202, 20.302(b), 20.305. 2. The criteria for an effective date prior to December 12, 2007 for service connection for major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. 3. Prior to January 8, 2014, the criteria for an evaluation in excess of 50 percent for service-connected major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434. 4. As of January 8, 2014, and no earlier, the criteria for an evaluation of 100 percent for service-connected major depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434. 5. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1981 to August 2001. (The issues of whether new and material evidence has been received to reopen a claim for service connection for numbness of the right leg, and if so whether service connection is warranted, whether new and material evidence has been received to reopen a claim for service connection for numbness of the left leg, and if so whether service connection is warranted, whether new and material evidence has been received to reopen a claim for service connection for numbness of the left arm, and if so whether service connection is warranted, entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine, entitlement to a rating in excess of 10 percent for hallux valgus of the right foot, entitlement to a rating in excess of 10 percent for hallux valgus of the left foot, and entitlement to a rating in excess of 40 percent for lumbar disc herniation, will be the subject of a later separate Board decision.) Although evidence has been associated with the claims file since the issuance of the Statement of the Case which has not been reviewed by the Agency of Original Jurisdiction, a waiver of AOJ review has been received. See 38 C.F.R. § 20.1304; Veteran’s representative’s letter, received in July 2018. In April 2016 and September 2017, the Board remanded these claims for additional development. The Veteran has previously been afforded a hearing on other issues by another Veterans Law Judge. To the extent that his testimony may have involved any of those issues, during his hearing, held in November 2017, he waived his right to an additional hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). During the Veteran’s November 2017 hearing, the issue was raised as to whether or not a remand was required for an issuance of a statement of the case as to the RO’s denial of a claim for service connection for pain syndrome. See Manlincon v. West, 12 Vet. App. 238 (1999). At present, a timely notice of disagreement as to the RO’s denial of that claim in March 2008 does not appear to be of record, such that a remand is not warranted. This issue is therefore referred to the Agency of Original Jurisdiction for appropriate action. 1. Whether a timely substantive appeal was received as to an RO rating decision, dated July 2, 2004. The issue before the Board is whether it has jurisdiction to consider the issues of entitlement to service connection for numbness arms and legs, residual from laceration right medial calf, hypertension, residual of battery acid in left eye, and right shoulder rotator cuff tear, and entitlement to initial compensable evaluations, or initial evaluations in excess of 10 percent, for service-connected neuroforaminal stenosis, L4-L5, (evaluated as 10 percent disabling), hemorrhoids (evaluated as 10 percent disabling), gastroesophageal reflux disease, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia (evaluated as 10 percent disabling), psoriasis (evaluated as 10 percent disabling), degenerative disc disease, neural foramen at C4-C6, and C3-C4 (evaluated as noncompensable), and bilateral inguinal hernia repairs (evaluated as noncompensable), based on an RO rating decision, dated July 2, 2004. If the Veteran did not, the Board does not have jurisdiction based on the July 2004 RO rating decision. See 38 U.S.C. § 7105 (a). The United States Court of Appeals for the Federal Circuit has noted that, “it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted) (emphasis added). The Board’s authority to consider its jurisdiction is contained in 38 U.S.C. § 7105 (d)(3), which provides that “... questions as to timeliness or adequacy of response shall be determined by the Board of Veterans’ Appeals.” See also VAOPGCPREC 9-99, 64 Fed. Reg. 52376 (1999). The steps to be taken to perfect an appeal to the Board following an adverse determination by an agency of original jurisdiction are set out fully in statute and regulations. “Appellate review will be initiated by a Notice of Disagreement and completed by a substantive appeal after a Statement of the Case is furnished as prescribed in this section.” 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200; see also 38 C.F.R. § 20.201 (requirements for notices of disagreement). “Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal.” 38 C.F.R. § 20.202. The Notice of Disagreement and the substantive appeal must be filed with the activity/office that entered the determination with which disagreement has been expressed. 38 U.S.C. § 7105 (b)(1); 38 C.F.R. § 20.300. After a Notice of Disagreement (NOD) is filed, a Statement of the Case (SOC) is to be prepared unless the benefit being sought is granted in full. 38 U.S.C. § 7105 (d)(1). The SOC is to be forwarded to the appellant at his most recent address of record, with a copy provided to the representative. 38 C.F.R. § 19.30 (a). Thereafter, a claimant must file the substantive appeal within 60 days from the date the SOC is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever ends later. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.302 (b). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202. The substantive appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.202. If the SOC addressed multiple issues, the appeal must either indicate that it is an appeal as to all issues, or it must specifically indicate which issues are being appealed. Id. The NOD and substantive appeal must be filed with the agency of original jurisdiction which issued the notice of the determination being appealed. 38 C.F.R. § 20.300. A determination of which a claimant is properly notified is final if an appeal is not perfected as prescribed by 38 C.F.R. § 20.302. 38 C.F.R. § 20.1103. As an initial matter, the Veteran is shown to have been incarcerated between about October 2007 and November 2011. His medical records include notations of prescription narcotic addiction, somatization, and histrionic tendencies. In a letter from the Veteran’s former employer, received in November 2005, P.T., a general manager for a car dealership, challenged the Veteran’s claim for unemployment. Mr. P.T. stated that the Veteran was fired for insubordination, threatening and intimidating a co-worker, and using vulgar and obscene language in front of customers and employees. Mr. P.T. stated that the Veteran’s actions were deliberate and premeditated, and that just hours before he was fired, he had told a fellow co-worker that he was going to get himself fired so that he could collect unemployment. See also decision of the Bureau of Workers’ and Unemployment Compensation, dated in August 2005 (showing that the Veteran’s claim was denied, based on a finding of misconduct). The Board therefore finds that the Veteran is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995 In a July 2004 rating decision, the RO denied claims for service connection for hearing loss, right ear, rib contusion, right elbow strain, numbness arms and legs, left ankle sprain, knee sprains, vasectomy and reversal of vasectomy, residual from laceration right medial calf, recurring throat infections, recurring ear infections, chest pains, left shoulder sprain, hypertension, residual of battery acid in left eye, and right shoulder rotator cuff tear, and granted service connection for hallux valgus, left foot, evaluated as 10 percent disabling, hallux valgus, right foot, evaluated as 10 percent disabling, neuroforaminal stenosis, L4-L5, evaluated as 10 percent disabling, hemorrhoids, evaluated as 10 percent disabling, gastroesophageal reflux disease, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia, evaluated as 10 percent disabling, psoriasis, evaluated as 10 percent disabling, degenerative disc disease, neural foramen at C4-C6, and C3-C4, evaluated as noncompensable, bilateral inguinal hernia repairs, evaluated as noncompensable, and hearing loss, left ear, evaluated as noncompensable; the appellant was informed of this decision by correspondence dated July 12, 2004. On July 1, 2005, a Notice of Disagreement was received as to the issues of service connection for numbness arms and legs, residual from laceration right medial calf, hypertension, residual of battery acid in left eye, and right shoulder rotator cuff tear, and entitlement to initial compensable evaluations, or initial evaluations in excess of 10 percent, for service-connected neuroforaminal stenosis, L4-L5, (evaluated as 10 percent disabling), hemorrhoids (evaluated as 10 percent disabling), gastroesophageal reflux disease, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia (evaluated as 10 percent disabling), psoriasis (evaluated as 10 percent disabling), degenerative disc disease, neural foramen at C4-C6, and C3-C4 (evaluated as noncompensable), and bilateral inguinal hernia repairs (evaluated as noncompensable). On November 7, 2005, a Statement of the Case was mailed to the appellant. On January 11, 2006, and no earlier, a VA Form 9 was received. A review of the claims files does not show that the RO received any correspondence which indicates continued disagreement with the RO’s July 2004 decision was received at any time between November 7, 2005 and January 7, 2005 (i.e., the greater of the date marking the end of the one-year period from the mailing of the RO’s decision, or 60 days from the mailing of the Statement of the Case). See 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 20.302 (b). The Veteran has not specifically asserted that he ever filed anything, other than the VA Form 9 that is currently of record, which could serve as a timely appeal. Given the foregoing, the Board finds that a timely substantive appeal as to the issues of entitlement to service connection for numbness arms and legs, residual from laceration right medial calf, hypertension, residual of battery acid in left eye, and right shoulder rotator cuff tear, and entitlement to initial compensable evaluations, or initial evaluations in excess of 10 percent, for service-connected neuroforaminal stenosis, L4-L5, (evaluated as 10 percent disabling), hemorrhoids (evaluated as 10 percent disabling), gastroesophageal reflux disease, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia (evaluated as 10 percent disabling), psoriasis (evaluated as 10 percent disabling), degenerative disc disease, neural foramen at C4-C6, and C3-C4 (evaluated as noncompensable), and bilateral inguinal hernia repairs (evaluated as noncompensable), was not filed; and that the RO’s July 2004 rating action is therefore final. Id. In reaching this decision, the Board has considered the Veteran’s testimony. During his hearing, held in November 2017, it was argued that the Veteran had submitted his appeal (VA Form 9) to his representative at the time (a VSO) within 60 days from the date of issuance of the Statement of the Case, and that his representative had requested that he give them his appeal so that they could review it and ensure that it was in order. It was argued, in essence, that he should not be held responsible for the failure of his representative to submit his appeal to VA in a timely manner. The notice of disagreement, and substantive appeal, must be filed with the agency of original jurisdiction which issued the notice of the determination being appealed. 38 C.F.R. § 20.300. VA law also provides that persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations “regardless of actual knowledge of what is in the [r]ebullitions or of the hardship resulting from innocent ignorance.” See Morris v Derwinski, 1 Vet. App. 260, 265 (1991) (citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); see also Dent v. McDonald, 27 Vet. App. 362, 382 (2015) (a beneficiary is charged with knowing the rules governing compensation). VA adjudicators are assumed to have constructive notice of VA records existing at the time of the decision. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). However, this is not a case in which an appeal was filed with the wrong VA office, and there is no basis to extend the doctrine of constructive notice to written documents filed with a VSO. Under the circumstances, there is no basis to find that filing a substantive appeal with a representative satisfies the requirement that an appeal must be filed with the agency of original jurisdiction. Finally, the Board has considered whether there is any basis to find that VA has somehow “waived” the jurisdictional issue. See Percy v. Shinseki, 23 Vet. App. 41 (2009). There is no basis to find that the jurisdictional issue has been waived. On January 19, 2006, the RO notified the Veteran that that his appeal had not been received in a timely manner. See also Deferred Rating Decision, dated January 19, 2006 (noting that his VA Form 9 had been received after the expiration of the appeal period, and that it would consider a VA Form 21-4142 (received in January 2006) as an application to reopen claims for service connection for bilateral numbness in the arms and legs, residual laceration of the right calf, hypertension, residuals of battery acid in the left eye, right shoulder rotator cuff tear, and chest pains, and as claims for increased ratings for his service-connected back condition, hemorrhoids, gastroesophageal reflux disease, psoriasis, degenerative disc disease (neck), and bilateral hernia); February 13, 2006 duty-to-assist letter as to those claims. Accordingly, Percy does not provide a basis to find that VA waived the jurisdictional issue. Finally, the Veteran has argued that the Statement of the Case shows that the date on the cover page was November 7, 2007; the number “7” in the year has been overwritten by hand with the number “5.” The Veteran asserts that this is a basis to find that the time period in which to file a substantive appeal should be extended. The Board is unable to conclude that this provides a basis for a grant of the appeal. The five pages in the Statement of the Case following the cover page all note a date of November 4, 2005. This is consistent with a notification date several days later, i.e., November 7, 2005. The Veteran has not asserted that he in did not, in fact, receive a copy of the Statement of the Case until November 2007. It is clear that he received a copy of the Statement of the Case prior to his filing of his (untimely) VA Form 9 in January 2006. See also Veteran’s letter of January 2006 (acknowledging that he had received the November 2005 Statement of the Case). It therefore appears that although the cover page of the SOC contained a typographical error as to the year (i.e., 2007 instead of 2005), that this error was corrected by hand, and that the SOC was in fact sent to the Veteran on November 7, 2005. Therefore, the typographical error does not provide a basis for a grant of the claim. 2. Effective date prior to December 12, 2007 for service connection for major depressive disorder. The Veteran asserts that he is entitled to an effective date for service connection for major depressive disorder prior to December 12, 2007. During his hearing, held in November 2017, it was argued that the correct effective date should be January 11, 2006. In August 2009, the RO denied a claim for service connection for depression and nervousness disorder. The RO stated that the Veteran’s claim had been received on January 11, 2006. In June 2013, the RO again denied the claim. In August 2014, the RO granted service connection for major depressive disorder; the RO assigned an effective date for service connection of December 12, 2007. Generally, the effective date of an award of an award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Generally, a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. See 38 C.F.R. §§ 3.160 (b), 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1 (p); 3.155. The Board finds that there is no legal basis for assignment of an effective date prior to December 12, 2007, for the grant of service connection for major depressive disorder. The date of receipt of the Veteran’s original claim for service connection is December 12, 2007. See Veteran’s claim (VA Form 21-4138), received December 12, 2007. The Board has considered the argument that in August 2009, at which time the RO initially denied a claim for service connection for an acquired psychiatric disorder, that it indicated the Veteran’s claim had been received on January 11, 2006. However, there is no record to show that the Veteran filed a claim for service connection for an acquired psychiatric disorder on that date. Rather, this appears to have been an incorrect citation to a number of claims referenced in an untimely VA Form 9 received on January 11, 2006, discussed supra, which the RO treated as new claims. None of those claims are shown to have included a claim for an acquired psychiatric disorder. In summary, there is no evidence that a formal claim or written intent to file a claim for service connection for an acquired psychiatric disorder was received prior to December 12, 2007. See 38 C.F.R. §§ 3.155, 3.157. Given the foregoing, there is no basis for the assignment of an effective date for the grant of service connection for major depressive disorder prior to December 12, 2007, and the claim must be denied. See 38 C.F.R. § 3.400 (b)(2). 3. Initial evaluation in excess of 50 percent, major depressive disorder. In August 2014, the RO granted service connection for major depressive disorder, evaluated as 50 percent disabling, with an effective date of December 12, 2007. The Veteran appealed the issue of entitlement to an initial evaluation in excess of 50 percent. In November 2015, the RO increased the Veteran’s evaluation to 100 percent, with an effective date of September 4, 2014. As the RO’s increase did not constitute a full grant of the benefit sought, the claim for a higher evaluation remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Therefore, the time period in issue is from December 12, 2007 to September 3, 2014. In this decision, supra, the Board has determined that an effective date prior to December 12, 2007 for service connection for major depressive disorder is not warranted. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Under 38 C.F.R. § 4.130, DC 9434, a 50 percent rating is warranted where an acquired psychiatric disability causes occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks (more than once a week); difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. Under 38 C.F.R. § 4.130, DC 9434, a 70 percent rating is warranted where an acquired psychiatric disability causes 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 ideations; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Under 38 C.F.R. § 4.130, DC 9434, a 100 percent rating is warranted where an acquired psychiatric disability causes 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. The symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). As this appeal was certified to the Board in February 2017, subsequent to the effective date for this change, DSM-5 is applicable to this claim. See 70 Fed. Reg. 45,093-94 (Aug. 4, 2014). In such cases, it is improper to discuss global assessment of functioning scores. Golden v. Shulkin, No. 16-1208 (February 23, 2018). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. With regard to the history of the disability in issue, VA progress notes dated in 2007 show that he was diagnosed with depressed mood secondary general medical condition. In late May 2007, the Veteran was hospitalized overnight for psychiatric symptoms, after he cut his arm. The Veteran was incarcerated between 2007 and 2011. An October 2007 psychiatric evaluation, apparently created shortly after his initial incarceration, contained an Axis I diagnosis of major depression, recurrent, rule out mood disorder due to general medical condition of chronic pain. The report shows he was treated with Cymbalta and Klonopin. VA vocational rehabilitation records show that in September 2005, the Veteran reported that he had most recently worked as a sales consultant until June 2005, and that he left his job due to painful feet and back pain, “from constantly walking on pavement.” He was enrolled in training in accounting, to include attending college classes though June 2007. In October 2007, he was incarcerated, and in 2008 he was placed on discontinued status. See 38 C.F.R. § 4.1. A statement from the Veteran’s spouse, dated in January 2016, states the following: she has known the Veteran since 2004. He has had terrible pain, and he belittles her when his pain flares up. He has suicidal thoughts and he began receiving VA treatment in September 2007. He was arrested in October 2007. He had severe depression. As of January 8, 2014. The Veteran has submitted a VA mental disorders disability benefits questionnaire (DBQ), dated in January 2014, from E.T., Ph.D. This DBQ shows that the Veteran was noted to have colitis, back and neck pain, bilateral bunions, psoriasis, bilateral hernias, and hemorrhoids. The report indicates that the Veteran has depressed mood, anxiety, mild memory loss, impairment of short and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, an inability to establish and maintain effective relationships, and impaired impulse control. Dr. E.T. determined that the Veteran had total occupational and social impairment. The diagnosis was major depressive disorder secondary to chronic pain. An associated report from Dr. E.T., also dated in January 2014, notes the following: The Veteran has been married four times; he has currently married since 2007. He has several children, two of whom are under the age of 18. He last worked for a car dealership in July 20054. He has depression due to pain, with crying spells and a lack of motivation to get anything accomplished. He has suicidal thoughts, no interests, and poor concentration. He feels generally anxious. He has short and long-term memory loss. He prefers to be by himself. His medications include Cymbalta and Trazodone. He stopped working in 2005 due to his emotional state and physical problems. He is not capable of sustaining substantial gainful work activity. The Axis I diagnosis was major depressive disorder, recurrent, secondary to chronic pain. VA vocational rehabilitation records show that in September 2014 and January 2016, the Veteran was determined not to be reasonably feasible for achievement of a vocational goal due to vocational impairments that were substantially contributed to by service-connected disability. The Board finds that the criteria for a 100 percent rating are shown to have been met as of January 8, 2014. In her reports, Dr. E.T. concluded that the Veteran had total occupational and social impairment. The earliest date in which Dr. E.T. indicated that she had examined the Veteran was January 8, 2014. See January 2014 VA mental disorders DBQ. Therefore, affording the Veteran the benefit of all doubt, the Board finds that the evidence is at least in equipoise, and that the Veteran’s signs and symptoms of his major depressive disorder are shown to have resulted in total occupational and social impairment. Vazquez-Claudio. Therefore, the Board finds that the criteria for a 100 percent rating have been met as of January 8, 2014. Prior to January 8, 2014. An initial evaluation in excess of 50 percent is not warranted prior to January 8, 2014. The claims file includes treatment reports from during the Veteran’s period of incarceration, between October 2007 and November 2011. This evidence shows that in February 2008, he reported “an extreme improvement in mood” after beginning Zyprexa. He denied suicidal thoughts, plan or intent, homicidal thoughts, and hallucinations. Insight and judgment were marginal. He reported difficulty sleeping. He was noted to be somatically preoccupied. Thoughts were coherent. Other medications included Cymbalta and Klonopin. Shortly after his sentencing, he reported increased anxiety. There was a diagnosis of major depression recurrent with psychosis (psychosis is in remission), personality disorder with borderline and paranoid traits. See e.g., reports, dated in February, April of 2008. He was subsequently noted to deny suicidal ideation “at this time or ever.” See report dated in June 2008. In July 2008, he was noted to have clear and coherent and spontaneous speech. Mood was depressed. Affect was serious, angry and depressed. He denied suicidal or homicidal ideation. He was taking Prozac and Trazodone. See also subsequently-dated reports containing similar findings, dated in October 2008, January and April of 2009. The Board notes that following his release from prison, the Veteran denied that his incarceration was traumatic “in any way,” and he was noted to have described it as “maybe one of the best things that has happened to me.” He explained that he said that during his incarceration there were no expectations of him, and he could lie in bed all day, which is his preference due to pain. See September 2014 VA progress note. VA progress notes, dated beginning in 2011, show multiple treatments for psychiatric symptoms. A psychiatric evaluation report, dated in October 2011, notes a complaint of depression. On examination, he was oriented in all phases, well-groomed, dressed in appropriate attire. Speech was focused and clear. He presented no evidence of suicidal or homicidal ideation. In May 2012, his symptoms were noted to be stable, with use of Cymbalta. Private treatment records from Infinity Primary Care show that in October 2013, the Veteran’s hobbies were noted to include fishing and gardening. There was a negative psychiatric examination. The Veteran was oriented to time, place, person, and situation. He had appropriate mood and affect. He reported that Cymbalta had been “very helpful” in treating his depression and his chronic pain. The evidence includes a decision of the Social Security Administration (SSA), and supporting medical evidence. In May 2016, the SSA determined that the Veteran was disabled as of June 2007, with a primary diagnosis of disorders of back (discogenic and degenerative), and a secondary diagnosis of affective/mood disorders. The SSA stated that the Veteran had not engaged in substantial gainful activity since June 2007, and that he had severe impairments of: degenerative disc disease of the lumbar spine, degenerative disc disease of the cervical spine, history of right shoulder deep partial tear involving the anterior leading edge of the supraspinatous, right shoulder tendinosis, mild right side ulnar mononeuropathy of the elbow, colitis, and depression. The Board finds that an initial evaluation in excess of 50 percent is not warranted. In particular, there is little or no evidence of suicidal ideations; obsessional rituals that 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. Accordingly, an initial evaluation in excess of 50 percent is not warranted. To the extent that the January 2014 reports of Dr. E.T. indicate that the Veteran has not worked since July 2005, and could be interpreted to indicate that he had total occupational and social impairment as of that date, the probative value of her findings prior to the date of her examination of the Veteran (in January 2014) have been reduced, as she indicated that she had not reviewed any of the Veteran’s VA treatment reports since 2008 other than a 2013 radiology report. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board’s “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). In addition, she does not cite to any contemporaneous findings to show total occupational and social impairment prior to January 2014. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also letter from the Veteran’s former employer, received in November 2005, discussed supra (indicating that the Veteran purposefully got fired in 2005 in order to collect unemployment benefits). The Board has considered that the SSA’s decision indicates that it determined that the Veteran is disabled, in part, due to psychiatric symptoms. This decision is not binding on VA. Damrel v. Brown, 6 Vet. App. 242, 246 (1994) (while Social Security Administration decisions regarding unemployability are clearly relevant and should be weighed and evaluated, they are not controlling with respect to VA determinations); Odiorne v. Principi, 3 Vet. App. 456, 461 (1992). The Board finds when the SSA’s evidence is considered together with the other evidence of record, it is insufficiently probative to warrant a grant of the claim. Madden. The findings as to the Veteran’s psychiatric symptoms have been discussed, and they do not warrant an increased initial evaluation. Given the foregoing, the Board finds that the evidence of record is insufficient to show that the criteria for an initial evaluation in excess of 50 percent have been met prior to January 8, 2014. TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the veteran’s education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). In determining entitlement to a TDIU, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability, without regard to advancing age or disabilities for which service connection has not been established. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); 38 C.F.R. §§ 3.341 (a), 4.16(a). Service connection is currently in effect for major depressive disorder, lumbar disc herniation with neuroforaminal narrowing L4-L5, lymphocytic colitis, GERD, non-ulcer dyspepsia, mild duodenitis, mild erosive distal esophagitis, and small hiatal hernia, tension headaches, degenerative disc disease neural foramen at C4-C5 and C3-C4, bilateral hallux valgus, internal hemorrhoids, psoriasis, status post bilateral inguinal hernia repairs, with recurrent right inguinal hernia, and hearing loss, left ear. On June 7, 1999, VA’s General Counsel issued VA O.G.C. Prec. Op. No. 6-99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that General Counsel precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). But in view of the issuance by the United States Court of Appeals for Veterans Claims of its decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the O.G.C. precedent opinion, the General Counsel took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. The Board therefore is also granting the TDIU claim since the total occupational and social impairment due to the service-connected PTSD also is reason to grant a TDIU inasmuch as the severity of this disability precludes the Veteran from engaging in all forms of employment that is substantially gainful. See Faust v. West, 13 Vet. App. 342 (2000); Moore v. Derwinski, 1 Vet. App. 356, 359 (1991); and 38 C.F.R. § 4.16 (a). The Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that TDIU on a schedular basis is warranted. The January 2014 opinions of Dr. E.T. indicates that the Veteran has total occupational and social impairment. In addition, the Veteran’s 100 percent rating for his major depressive disorder implicitly indicates that he has total occupational and social impairment. See 38 C.F.R. § 4.130, General Rating Formula. The Board therefore finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that TDIU on a schedular basis is warranted. The Board notes that the effective date of this award is not before the Board at this time, as it must be addressed by the RO in the first instance. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel