Citation Nr: 18140454 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 15-29 518 DATE: October 4, 2018 ORDER An initial rating of 70 percent, but no higher, for major depressive disorder (MDD) is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to May 6, 2011, an initial compensable rating for asbestosis is denied. From August 25, 2011, forward, a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 30 percent for asbestosis from May 6, 2011, forward, is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s PTSD symptoms most nearly approximate occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking, or mood. 2. Prior to May 6, 2011, the Veteran’s asbestosis was manifested by DLCO measurements of no less than 83 percent of predicted value (post-bronchodilator); FVC-1 measurements have not been found to be appropriate for the Veteran’s disability. 3. From August 25, 2011, but not before, the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). 2. Prior to May 6, 2011, the criteria for an initial compensable rating for asbestosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, DC 6833 (2017). 3. From August 25, 2011, but not earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from July 1977 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a January 2012 rating decision, the RO granted service connection for asbestosis and implemented the Board’s March 2011 award of service connection for MDD. The RO assigned an initial rating of 50 percent for MDD and an initial rating of 0 percent for asbestosis prior to May 6, 2011, and 30 percent thereafter. In an August 2013 rating decision, the RO denied entitlement to a TDIU. The Veteran testified before a Veteran’s Law Judge at a Travel Board hearing in October 2010 for issues unrelated to the instant appeal. The Veteran recently submitted, in February 2018, a notice of disagreement (NOD) as to a March 2017 rating decision that denied service connection for coronary artery disease/heart stints and hypercholesterolemia. In addition, in November 2016, the Veteran submitted NOD as to an October 2016 rating decision that denied service connection for sleep apnea and granted service connection for right and left leg meralgia paresthetica, assigning noncompensable initial ratings effective August 9, 2015. The RO has acknowledged receipt of these NODs and RO development on those issues remains pending. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to testify on factual matters of which he or she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to an initial rating in excess of 50 percent for MDD. The Veteran is currently in receipt of a 50 percent disability rating for MDD under 38 C.F.R. § 4.130, DC 9434. He contends that a higher initial rating is warranted. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under such formula, a 50 percent rating is warranted 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 (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 (ADLs) (including maintenance of mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran’s appeal to the Board after August 4, 2014; therefore, the PTSD claim is governed by DSM 5 and the Global Assessment of Functioning scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. After a review of the evidence, both lay and medical, the Board finds that the Veteran’s MDD symptoms have most nearly approximated occupational and social impairment with deficiencies in most areas for the entire period on appeal. The evidence has consistently reflected that the Veteran has suicidal ideations. See August 2009 VA examination report; October 2010 letter from Dr. N.L., a private psychologist; and July 2011 private emergency room record. In addition, the evidence reflects that the Veteran is unable to establish and maintain effective relationships. The August 2009 VA examination report indicated that the Veteran’s relationship with his wife was distant and, while he had a good relationship with his children and grandchildren, he would be become impatient after only spending a couple of hours with them. In addition, while he kept in contact with old friends, this was done by Facebook and telephone and rarely involved any in-person interaction. The October 2010 letter from the private psychologist indicated that the Veteran’s depressed mood and irritability impacted his relationships with his peers and his marriage. The May 2011 VA examination report indicated that the Veteran reported that his relationship with his wife was poor due to his irritability and he did not have any casual friends, though he had a good relationship with his daughters and granddaughters and had three to four close friends on Facebook. The February 2013 VA examination report indicated that the Veteran had a fair relationship with his family and no close friends, though he kept contact with a few casual friends via computer. In June 2017, Dr. N.L. stated that the Veteran’s mood difficulties made for an unstable relationship with his wife. The evidence also reflects that the Veteran has had symptoms of irritability, a short temper, poor motivation and concentration, sleep impairment, difficulty establishing and maintaining effective relationships, disturbances of motivation and mood, isolating tendencies, difficulty focusing, neglect of personal appearance and hygiene, and feelings of hopelessness and worthlessness. See August 2009, May 2011, and February 2013 VA examination reports, and October 2010 and June 2017 letters from Dr. N.L. For these reasons, the Board finds that the Veteran’s PTSD symptoms more nearly approximated occupational and social impairment with deficiencies in most areas throughout the rating period on appeal. However, a rating in excess of 70 percent for PTSD is not warranted. There is no evidence of disorientation to time or place, persistent delusions or hallucinations, persistent danger of hurting self or others, grossly inappropriate behavior, gross impairment in thought processes or communication, or memory loss for close relatives, own occupation, or own name. While the October 2010 letter from Dr. N.L. and the May 2011 VA examination report indicated that the Veteran could go up to a week without bathing, May 2011 VA examination indicated that the Veteran had intermittent inability to perform daily living activities, and the June 2017 letter from Dr. N.L. indicated that the Veteran could go up to two weeks without showering, the Board finds that this does not reflect intermittent inability to perform activities of daily living (ADLs), including maintenance of minimal personal hygiene. The mere fact that the Veteran showers infrequently is not, by itself, indicative of an intermittent inability to perform ADLs, including maintenance of minimal personal hygiene. Other than repeated references to infrequent showering, there is nothing in the record to indicate that the Veteran’s personal hygiene was not maintained or that he was unable to perform other ADLs. The Board notes that the August 2009 VA examination report indicated that there was no evidence of an inability to maintain personal hygiene or perform most ADLs. For these reasons, the Board finds that a rating in excess of 70 percent for MDD is not warranted. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an initial compensable rating for asbestosis prior to May 6, 2011. The Veteran is in receipt of a noncompensable initial rating for asbestosis prior to May 6, 2011. The issue of entitlement to a rating in excess of 30 percent disability rating from May 6, 2011, forward, is discussed in the remand section, below. The Veteran’s asbestosis is rated under 38 C.F.R. § 4.97, DC 6833, applicable to asbestosis. Disabilities evaluated under Diagnostic Codes 6825 through 6833 are rated using the General Rating Formula for Interstitial Lung Disease (General Rating Formula). 38 C.F.R. § 4.97. Under the General Rating Formula, an FVC of 75 to 80 percent predicted, or a DLCO (SB) test of 66 to 80 percent predicted warrants a 10 percent rating. An FVC of 65 to 74 percent predicted or a DLCO (SB) of 56 to 65 percent predicted warrants a 30 percent rating. An FVC of 50 to 64 percent predicted, or; a DLCO (SB) of 40 to 55 percent predicted, or; a maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation warrants a 60 percent rating. Id. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator results are used. 38 C.F.R. § 4.96(d)(5). Here, the Board finds that the Veteran’s post-bronchodilator results are the most appropriate test to evaluate his disability. In this regard, there is no indication that post-bronchodilator results were poorer than the pre-bronchodilator results. If the DLCO (SB) test is not of record, the disability may be rated based on alternative criteria as long as the examiner explains why the DLCO (SB) test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2) (2017). The Board notes that the Veteran has been diagnosed with several respiratory disabilities, including obstructive sleep apnea, emphysema, COPD, and asbestosis. For purposes of this evaluation, the Board has given the Veteran the benefit of the doubt and attributes all PFT results to his service-connected asbestosis. See Mittleider v. West, 11 Vet. App. 181 (1998); 38 C.F.R. § 3.102 (2017). As an initial matter, in a November 2011 addendum opinion, the May 2011 VA examiner opined that reduced DLCO is more likely reflective of the Veteran’s asbestosis and is the test which more accurately reflects the Veteran’s level of disability, as reduced DLCO is one of the earlier signs of asbestosis, while in chronic obstructive pulmonary disorder (COPD) FEV-1 and FEV-1/FVC is more generally affected. While the March 2015 DBQ indicated that FEV-1 most accurately reflected the Veteran’s level of disability based on the condition being evaluated in this report, no rationale was given for this opinion and the physician only noted diagnoses of emphysema and OSA. For these reasons, the Board finds that the November 2011 addendum opinion is more probative as to which PFTs most accurately reflects the Veteran’s impairment due to asbestosis. Therefore, the Board will consider the Veteran’s DLCO results, and not the FVC or FEV-1 results, in rating the Veteran’s service-connected asbestosis. Turning to the relevant evidence, private PFTs were performed in August 2009, post-bronchodilator DLCO results were not listed. Pre-bronchodilator DLCO was 76 percent. However, this PFT result is inadequate, as no post-bronchodilator DLCO results were listed, the results of prebronchodilator PFTs were not normal, and the examiner did not explain why post-bronchodilator studies were not performed. See 38 C.F.R. § 4.96(d)(4). The August 2009 VA examination report indicated that PFT results revealed DLCO of 83 percent. There was no evidence of incapacitation, cor pulmonale, or pulmonary hypertension. The Veteran denied needing oxygen. Based on the above, the Veteran’s disability has not shown to result in a compensable impairment of his pulmonary function. See 38 C.F.R. § 4.97, DC 6833. The only adequate PFTs found post-bronchodilator DLCO measurements of no less than 83 percent of predicted value. Further, the evidence also does not show any limitation of the Veteran’s maximum exercise capacity attributed to this disability. He did not have associated cardiorespiratory limitation, cor pulmonale, or pulmonary hypertension. Likewise, this disability did not require outpatient oxygen therapy. Thus, the record does not reflect the symptoms required for a compensable rating under DC 6833. For these reasons, the Board finds that the preponderance of the evidence is against a compensable schedular rating for asbestosis prior to May 6, 2011. Hence the appeal must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Finally, the Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to a TDIU. It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. The Veteran in this case met the schedular percentage requirements for a TDIU, as of April 14, 2008, the date of his application for an increased rating for MDD, which was granted herein, as he was in receipt of service connection for MDD, rated 70 percent disabling from April 14, 2008. He is also in receipt of service connection for asbestosis, tinnitus, bilateral hearing loss, and bilateral leg meralgia paresthetica. The remaining question is whether these service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA’s duty to assist “does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities.” See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner’s opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). In this case, the Veteran’s DD-214 indicates that he served on active duty for 20 years. His primary military occupational specialty (MOS) was high and low pressure cryogenic technician, with a secondary MOS of instructor. The Veteran reports having a high school education followed by his service in the military. There is no other education or training. He last worked full-time in September 2007. See April 2012 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. During the August 2009 VA mental disorders examination, the Veteran reported that he had been laid off from his last place of employment due to the economy and that he was having difficulty finding other labor jobs because of his health, but indicated that his unemployment was not due to the effects of his mental disorder. In the October 2010 private nexus letter, Dr. N.L. opined that the Veteran demonstrated total occupational impairment. Dr. N.L. noted the Veteran demonstrated reduced concentration, which resulted in his inability to read no more than newspaper articles, and concluded that the Veteran’s impaired concentration alone prevented the Veteran from working in any position. Effective February 2011, the Veteran was awarded Social Security Administration (SSA) disability benefits based on his ischemic heart disease and affective/mood disorders. In a supporting January 2011 mental capacity assessment, the examiner indicated that the Veteran may have difficulty sustaining his concentration and pace on complex tasks and detailed instructions. The examiner further noted that although the Veteran could attend work regularly, he may miss occasional days due to his mental conditions, and was better suited for jobs that did not require regular work with the general public. The Veteran was afforded an additional VA mental disorders compensation examination in May 2011. The Veteran indicated the he had been unemployed since 2007, and that his last place of employment was with Bath Fitters. While the Veteran indicated that his employers eliminated his position, he stated that he believed that he was terminated because he could not work as fast as the other employees. While the Veteran denied missing any time from work for mental health purposes, he was placed on suspension for a week after a conflict with his co-workers due to the mental stress of the position, which manifested in increased irritability. The examiner determined that the Veteran’s ability to maintain employment and perform his job duties in a reliable, flexible, and efficient manner was moderately impaired. The examiner further noted in the May 2011 VA respiratory examination that the Veteran reported that he quit his job because he was having trouble controlling his temper and that it was affecting his quality of work, so he decided to leave. In January 2013, the Veteran was afforded a VA respiratory examination to determine unemployability. The examiner opined that the Veteran’s respiratory condition did not impact his ability to work as his he had good lung functions based on his previous PFTs and the Veteran’s reports. In February 2013, the VA mental disorders examiner opined that while the Veteran’s MDD did not render him unable to secure and maintain substantially gainful employment, it did result in moderate to considerable difficulty with respect in his ability to maintain employment, given his problems with irritability, concentration, and sleep. The Veteran submitted a June 2017 updated private nexus letter from Dr. N.L. who reiterated that the Veteran still had total occupational impairment. He indicated that the Veteran’s irritability caused significant social impairment and that his impaired concentration continued to prevent him from working in any position. In September 2017, the Veteran submitted a nexus opinion from a vocational expert regarding his unemployability, who opined that it was at least likely as not that August 2009 was the effective date of the Veteran inability to pursue gainful employment resulting from depression and other medical problems. The vocational expert reviewed the Veteran’s prior work history and opined that based on the Veteran’s symptoms of his service-connected MDD as reviewed in the medical record, and taking into account his transferable skills, education, work experience, and residual functional capacity, it was less likely as not the Veteran would be capable of performing any type of skilled, semi-skilled, or unskilled work. The expert reasoned that generally individuals with the Veteran’s skills might be capable of performing many work duties associated with unskilled employment, but due to the unpredictable nature of the Veteran’s conduct, intermittently impaired productivity, lack of consistent and sustained reliability, flexibility and efficiency, working with others would create a serious disruption in the flow of work. The expert determined that it was not necessary for an individual to be substantially dysfunctional at all times in order to be unemployable, however, if someone was functioning inefficiently periodically it was sufficient enough to preclude adequate performance of work duties, even at an unskilled level. The vocational expert concluded that the Veteran’s service-connected MDD imposed limitations on his ability to work based on mental, emotional and psychiatric difficulties, and determined that while the limitations imposed by his service-connected asbestosis would more likely than not limit the Veteran to sedentary or to a limited range of light work, such work would be precluded by the mental and emotional factors associated with his service-connected MDD. After a review of all the evidence of record, lay and medical, the Board finds that the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities for the entire period on appeal. The record reflects that the Veteran’s service-connected MDD has caused significant occupational impairment due to irritability, decreased motivation and mood, social isolation, impaired concentration and focus, reduced reliability, and sleep impairment. While the Veteran maintained full-time employment before his job was eliminated in September 2007, the record reflects that he had repeated conflicts with co-workers and changed jobs frequently. The Board also finds the opinion from the vocational expert, submitted in September 2017, to be highly probative. For these reasons, the functional impact of his service-connected disabilities has rendered him unable to obtain and maintain substantially gainful employment for the entire period on appeal. Indeed, given the significant impact of his service-connected disabilities on the Veteran’s ability to work and perform routine tasks that would likely be required for employment, the weight of the evidence supports a finding that his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the entire period on appeal. Therefore, as the competent and credible evidence is in favor of a finding of unemployability due to the service-connected disabilities, entitlement to a TDIU is warranted for the entire period on appeal. REASONS FOR REMAND Further development is necessary prior to analyzing the merits of the Veteran’s claim for an increased disability rating for his service-connected asbestosis from May 6, 2011, forward. 1. Entitlement to a rating in excess of 30 percent for asbestosis from May 6, 2011, forward, is remanded. In a March 2015 disability benefits questionnaire (DBQ), a private physician indicated that the Veteran required outpatient oxygen therapy at night. However, the private physician only noted diagnoses of emphysema and OSA, and not the service-connected asbestosis. While the Veteran was afforded a VA sleep apnea examination in September 2016, the examination report indicated that the Veteran does not have OSA and did not address whether the Veteran was receiving outpatient oxygen therapy. As such, remand is required to determine whether the Veteran is receiving outpatient oxygen therapy and, if so, whether such outpatient oxygen therapy is a treatment for the service-connected asbestosis and not just for the non-service connected OSA. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected asbestosis. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. The examiner should respond to the following: a. Determine the current severity of the Veteran’s asbestosis. b. Is the Veteran receiving outpatient oxygen therapy? c. If so, is it at least as likely as not (50 percent probability or greater) that such outpatient oxygen therapy a treatment for the service-connected asbestosis? A detailed rationale should be provided for the opinions rendered. If the examiner cannot provide the requested information without resort to speculation, he or she must state the reasons why. 3. Then, readjudicate the issue on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel