Citation Nr: 18149311 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-32 328A DATE: November 9, 2018 ORDER New and material evidence being submitted, the claim of entitlement to service connection for severe lumbar injury (L4-5) is reopened. New and material evidence being submitted, the claim of entitlement to service connection for obstructive sleep apnea (OSA) is reopened. New and material evidence being submitted, the claim of entitlement to service connection for diabetes mellitus, type 2 (DM) is reopened. Service connection for low back pain is granted. Service connection for OSA is granted. Service connection for DM is granted. Service connection for drug abuse is denied. An initial disability rating of 70 percent, but no higher, for major depression is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. An October 2008 rating decision denied service connection for severe lumbar injury, OSA, and DM. The Veteran did not appeal. 2. At the time of the October 2008 rating decision, the record did not contain evidence showing that the Veteran’s severe lumbar injury related to his time in active service. Subsequent to that decision, the Veteran submitted a nexus statement linking his service-connected depression to his back problems. This opinion is new and material and raises a reasonable possibility of substantiating the claim. 3. At the time of the October 2008 rating decision, the record did not contain evidence showing that the Veteran’s OSA related to his time in active service. Subsequent to that decision, the Veteran submitted a nexus statement linking his service-connected depression to his OSA. This opinion is new and material and raises a reasonable possibility of substantiating the claim. 4. At the time of the October 2008 rating decision, the record did not contain evidence showing that the Veteran’s DM related to his time in active service. Subsequent to that decision, the Veteran submitted a nexus statement linking his service-connected depression to his DM. This opinion is new and material and raises a reasonable possibility of substantiating the claim. 5. The Veteran’s low back pain is proximately due to his service-connected depression. 6. The Veteran’s OSA is proximately due to his service-connected depression. 7. The Veteran’s DM is proximately due to his service-connected depression. 8. The Veteran’s drug abuse has been in remission throughout the appeal period. 9. The Veteran’s depressive disorder was not manifested by total social and occupational impairment. 10. The Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for severe lumbar injury. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for OSA. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for DM. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 4. The criteria to establish service connection for low back pain have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 5. The criteria to establish service connection for OSA have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 6. The criteria to establish service connection for DM have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). 7. The criteria to establish service connection for drug abuse have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 8. The criteria for an initial disability rating of 70 percent, but no higher, for depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). 9. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to March 1979. The Veteran appeals a June 2011 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for drug abuse. The decision also denied the Veteran’s petition to reopen service connection for severe lumbar injury. He also appeals an August 2012 rating decision denying his petition to reopen his service connection for DM and OSA claims. The June 2011 rating decision also granted service connection for major depressive disorder to include memory loss and lack of motivation, and assigned a 30 percent disability rating effective June 2, 2010. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In the absence of proof of a present disability, there can be no valid claim. Degmetich v. Brown, 104 F.3d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement for service connection that a current disability be present is satisfied when a Veteran has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007). 1. Low Back Pain The Veteran has had debilitating lower back pain. See, e.g., July 2012 VA treatment record. In Saunders v. Wilkie, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit further explained that to establish a disability, “the [V]eteran will need to show that his pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. Here, the Veteran uses a walker because he has difficulty standing and takes narcotics to deal with his back pain. See April 2017 VA treatment record. As a result, the Board finds that the Veteran’s lower back pain reaches the level of a functional impairment of earning capacity. Thus, the first Wallin element is met. Further, the Veteran is service-connected for major depressive disorder. Thus, the second Wallin element is met. As such, the crux of this case centers on whether the Veteran’s service-connected depression caused or aggravated his lower back pain. The Veteran has submitted two positive nexus opinions. See April 2018 Dr. M.B. and September 2012 Dr. H.S. medical opinions. In support of his position, Dr. H.S. cites a VA examination report by Dr. P.H., who was asked to differentiate symptoms between the Veteran’s service-connected depression and non-service-connected posttraumatic stress disorder (PTSD). See June 2011 VA examination report. Importantly, Dr. H.S. explained that the June 2011 VA clinician attributed “increased appetite, gaining 180 pounds in 10 years” to the Veteran’s depression. See February 2012 Dr. H.S. medical opinion. Further, Dr. H.S. notes that increased appetite and weight gain are common problems of depressed patients. As it relates to this case, Dr. H.S. wrote that “the sustained pressure of the additional tissue and fat on the back caused the discs and spinal structures severe damage from having to compensate as it is titled and stressed unevenly. Over time, this weight will lead to more and more destruction as the back deteriorates from the unnatural weight on the back.” Id. Similarly, almost six years later, Dr. M.B. reached a consistent conclusion. After explaining the positive association between depression and weight gain, she stated: Research shows that overweight and obesity increase the risk of low back pain and that overweight and obesity have the strongest association with seeking care for low back pain and chronic low back pain. This was confirmed by another study that showed that obesity was associated with higher levels of back pain and disability in a population-based cohort of men. An [sic] in particular this study showed that for men with a concomitant emotional disorder, back pain was more likely to be associated with increased adiposity. See April 2018 Dr. M.B. medical opinion. Hence, both clinicians, after interviewing the Veteran and thoroughly reviewing the claims file, came to the same conclusion and cited medical literature to develop their argument. In contrast, a November 2017 VA clinician provided a terse negative opinion. Specifically, he did not address aggravation, and did not cite any literature to support his position. See November 2017 VA medical opinion. It is the Board’s duty to assess the credibility and probative value of evidence, and, provided it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, as the November 2017 VA clinician did not address aggravation or discuss positive medical evidence, the Board finds the February 2012 and April 2018 private opinions better-supported and accordingly more probative than the November 2017 VA opinion. Ultimately, the Veteran’s positive medical opinions link service-connected depression to low back pain. Obesity is an intermediate step between the two. This is permissible under precedential VA General Counsel Opinion 1-2017, which holds that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s low back pain and his service-connected depression. Accordingly, the Board grants service connection for low back pain. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. OSA The first and second Wallin elements are met and not in dispute. The evidentiary record contains a diagnosis of OSA. See April 2017 VA treatment record. Further, the Veteran is service-connected for major depressive disorder. As such, the crux of this case centers on whether the Veteran’s service-connected depression caused or aggravated his OSA. The Veteran has submitted two positive nexus opinions. See April 2018 Dr. M.B. and September 2012 Dr. H.S. medical opinions. In support of his position, Dr. H.S. cites a VA examination report by Dr. P.H., who was asked to differentiate symptoms between the Veteran’s service-connected depression and non-service-connected posttraumatic stress disorder (PTSD). See June 2011 VA examination report. Importantly, Dr. H.S. explained that the June 2011 VA clinician attributed “increased appetite, gaining 180 pounds in 10 years” to the Veteran’s depression. See February 2012 Dr. H.S. medical opinion. Further, Dr. H.S. notes that increased appetite and weight gain are common problems of depressed patients. As it relates to this case, Dr. H.S. wrote that “physical presence of additional tissue and fat in the neck can compress the area related to sleep apnea. This leads to the airway becoming narrow, while more the organs and tissues swell leaving little room for the oxygen to travel. [The Veteran] is required to use a CPAP machine during any period of sleep.” Id. Similarly, almost six years later, Dr. M.B. reaches a consistent conclusion. After explaining the positive association between depression and weight gain, she stated “[r]esearch has shown that psychiatric disorders are commonly associated with OSA. A recent study found that subjects with depression compared with non-depressed have a higher prevalence of a sleep apnea diagnosis. The study found that with CPAP treatment, both OSA and psychiatric symptoms decreased providing further evidence of the co-morbidity of these conditions.” See April 2018 Dr. M.B. medical opinion. Hence, both clinicians, after interviewing the Veteran and thoroughly reviewing the claims file, came to the same conclusion and cited medical literature to buttress their argument. In contrast, a November 2017 VA clinician provided a terse negative opinion. Specifically, he did not address aggravation, and did not cite any literature to support his position. See November 2017 VA medical opinion. It is the Board’s duty to assess the credibility and probative value of evidence, and, provided it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, as the November 2017 VA clinician did not address aggravation or discuss positive medical evidence, the Board finds the February 2012 and April 2018 private opinions better-supported and accordingly more probative than the November 2017 VA opinion. Ultimately, the Veteran’s positive medical opinions link service-connected depression to OSA. Obesity is an intermediate step between the two. This is permissible under precedential VA General Counsel Opinion 1-2017, which holds that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s OSA and his service-connected depression. Accordingly, the Board grants service connection for OSA. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. DM The first and second Wallin elements are met and not in dispute. The evidentiary record contains a diagnosis of DM. See April 2017 VA treatment record. Further, the Veteran is service-connected for major depressive disorder. As such, the crux of this case centers on whether the Veteran’s service-connection depression caused or aggravated his DM. The Veteran has submitted two positive nexus opinions. See April 2018 Dr. M.B. and September 2012 Dr. H.S. medical opinions. In support of his position, Dr. H.S. cites a VA examination report by Dr. P.H., who was asked to differentiate symptoms between the Veteran’s service-connected depression and non-service-connected posttraumatic stress disorder (PTSD). See June 2011 VA examination report. Importantly, Dr. H.S. explained that the June 2011 VA clinician attributed “increased appetite, gaining 180 pounds in 10 years” to the Veteran’s depression. See February 2012 Dr. H.S. medical opinion. Further, Dr. H.S. notes that increased appetite and weight gain are common problems of depressed patients. As it relates to this case, Dr. H.S. wrote that “[a]s the [V]eteran does not present other risk factors or history of diabetes, his significant weight gain in coincidence with his onset of diabetes is highly as likely as not the culprit.” Id. Similarly, almost six years later, Dr. M.B. reaches a consistent conclusion. After explaining the positive association between depression and weight gain, she opined that the Veteran’s obesity and depression were the “main causes of his diabetes.” She listed and properly weighed other risk factors, but ultimately determined that the Veteran’s service-connected depression caused DM. See April 2018 Dr. M.B. medical opinion. Hence, both clinicians, after interviewing the Veteran and thoroughly reviewing the claims file, came to the same conclusion and cited medical literature to support their argument. In contrast, a November 2017 VA clinician provided a terse negative opinion. Specifically, he did not address aggravation, and did not cite any literature to support his position. See November 2017 VA medical opinion. It is the Board’s duty to assess the credibility and probative value of evidence, and, provided it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, as the November 2017 VA clinician did not address aggravation or discuss positive medical evidence, the Board finds the February 2012 and April 2018 private opinions better-supported and accordingly more probative than the November 2017 VA opinion. Ultimately, the Veteran’s positive medical opinions link service-connected depression to DM. Obesity is an intermediate step between the two. This is permissible under precedential VA General Counsel Opinion 1-2017, which holds that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). As the evidence for and the evidence against the Veteran’s claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt, and finds there is expert evidence of record establishing a link between the Veteran’s DM and his service-connected depression. Accordingly, the Board grants service connection for DM. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Drug Abuse The Board notes that the Veteran was service-connected for major depressive disorder, to include memory loss and lack of motivation, in a June 2011 rating decision. Upon multiple VA and private examinations, the Board finds that the Veteran’s substance abuse is in remission. In November 2017, a clinician noted that the Veteran has a documented history of substance abuse, alcohol, and cocaine abuse “many years ago 1989, but Veteran denies this was an issue.” See November 2017 VA examination report. Over six years earlier, a VA clinician also noted that the Veteran’s cocaine dependence was “in remission.” See January 2011 VA examination report. A year later, the same VA clinician stated the Veteran denied alcohol dependence since 1989, and cocaine dependence since 1994. See May 2012 VA examination report. This is consistent with the Veteran’s private mental health assessments. In October 2012, Dr. A.F. stated the Veteran had “history of cocaine and alcohol abuse, in remission.” See October 2012 Dr. A.F. DBQ (disability benefits questionnaire). Over five years later, Dr. H.H.G. noted that the Veteran was diagnosed with major depressive disorder, recurrent, severe, and that he did not have more than one mental disorder diagnosed. See March 2018 Dr. H.H.G. DBQ. As other medical professionals recited, “the Veteran admits to self-medicating with alcohol and drugs in the past, but has been sober for years.” Id. Hence, following a review of all available evidence, the record does not reflect drug abuse that warrants service connection. To that end, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). As such, without a current disability, the Veteran lacks the evidence necessary to substantiate his claim for service connection. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board denies service connection for drug abuse because the evidence of record is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Here, the Veteran contends that his major depressive disorder is more severe than his initial disability rating would indicate. He was awarded service connection from June 2, 2010. The Veteran’s mental health disorder is rated under 38 C.F.R. §4.130, Diagnostic Code 9434. The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434. 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; difficulty in establishing effective work and social relationships. Id. A 70 percent rating 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating 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. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Taking into account all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran’s service-connected depression is warranted. The Veteran has exhibited occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, or mood. Upon examination in March 2018, the Veteran was deemed to have occupational and social impairment in most areas. Specifically, the Veteran was found to have the following symptoms: depression, anxiety, suspiciousness, panic attacks, chronic sleep impairment, memory loss, flattened affect, disturbances of motivation and mood, difficulty in adopting to stressful circumstances, including work or a work like setting, an inability to establish and maintain effective work and social relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. See March 2018 Dr. H.H.G. DBQ. Importantly, Dr. H.H.G. opined that the severity of the Veteran’s symptom complex relates back to his original claim date of June 2010. The Veteran’s medical treatment records support this conclusion. Specifically, upon examination in June 2011, VA psychologist Dr. P.M. concluded the Veteran’s depression results in “considerable impairment.” See June 2011 VA examination report. As to depression, Dr. P.M. stated that his symptoms “appear to be resulting in considerable difficulty for the [V]eteran, and he does have problems with skipping baths up to 2 to 3 days associated with his depression and activities of daily living.” Id. Further, Dr. A.F. stated the Veteran will “struggle to work effectively with co-workers and supervisors, given his low frustration tolerance. The [V]eteran’s psychological profile in [sic] suggests that he is significantly at risk for decompensation if placed under more than minimal stress.” See October 2012 Dr. A.F. DBQ. Dr. H.H.G. further opined that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder. See March 2018 Dr. H.H.G. medical opinion. Nevertheless, the Veteran has not exhibited total social impairment. The Veteran attempts to volunteer three days a week for four hours each day. See March 2018 Dr. H.H.G. DBQ. He also has a few friends and attends church; he does communion with the pastor. See November 2017 VA examination report. The Veteran also does not have persistent delusions or hallucinations. Further, the Veteran has stated in multiple mental health visits that he is not a persistent danger of hurting himself or others; he also remembers his own name. While the Veteran does exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Hence, the criteria for a finding of a 100 percent evaluation are not met. Based upon Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 70 percent levels for his depression, staged ratings are not warranted. Thus, the evidence is in equipoise and the Board finds that the criteria for an increased disability rating of 70 percent, but no higher, for depression are met. See Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990); 38 C.F.R. § 3.102. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Total disability will be considered to exist where there is present any impairment of mind and body that 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 the Veteran meets the schedular requirements. Specifically, 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 that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “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). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has alleged that he cannot work because of his service-connected depression. The Veteran has not worked since 2002 and has received Social Security Disability for his vocational impairment since 2006. See March 2018 Dr. H.H.G. DBQ. The Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis. Pursuant to the Order above, the Veteran’s depression is rated at 70 percent disabling throughout the appeal period. See 38 C.F.R. § 4.16(a). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. The evidence supporting TDIU in this case is overwhelming. Specifically, the Veteran has submitted three positive opinions showing that the Veteran cannot obtain or retain substantially gainful employment because of his service-connected disabilities. Recently, a psychologist opined that the Veteran’s service-connected psychiatric disorder prevents him from maintaining substantially gainful employment. See March 2018 Dr. H.H.G. medical opinion. She methodically explained how the Veteran’s symptoms would prevent gainful employment. For example, Dr. H.H.G. stated that the Veteran cannot sustain the stress from a competitive work environment. She related symptoms to specific impairments, noting: With poor personal skills and workplace trust issues, the Veteran would have an increase in paranoia and would struggle with appropriate work interaction. He has physical signs of depression that interfere in daily work as these signs manifest as extreme fatigue, hypersomnia, appetite issues, weight fluctuation and emotional outburst. Individuals with higher distractibility, absenteeism, and emotional turmoil could be deemed as inappropriate in the workplace. Id. Similarly, Dr. H.S. opines that “[w]hen you add together the combined effects and symptoms of his depression, sleep apnea, diabetes, diabetic neuropathy, and back pain it is very clear the [V]eteran is not capable of working.” See September 2012 Dr. H.S. medical opinion. The Board notes that the Order above grants service connection for OSA, DM, and lower back pain. Contemporaneous to Dr. H.S.’s opinion, another medical professional opined the Veteran would miss and need to leave early 3 or more days a month because of mental problems. See October 2012 Dr. A.F. medical opinion on service connected impairments. A few months later, a vocational consultant opined that the Veteran is totally occupationally disabled as a result of his severe depression because “his employment history is supportive of very severe issues with social interaction and reacting appropriately in a work setting.” See December 2012 Dr. S.B. opinion. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the psychological symptoms make him unable to establish work relationships, cause concentration lapses, hinder his ability to effectively complete tasks, and would cause frequent absences and work disruptions. As such, the Board finds the Veteran and his medical treatment providers credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities at least as likely as not prevent him from obtaining and maintaining gainful employment throughout the appellate period. Accordingly, resolving all doubt in his favor, the criteria for TDIU have been met, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel