Citation Nr: 18135472
Decision Date: 09/14/18	Archive Date: 09/14/18

DOCKET NO. 11-26 340A
DATE:	September 14, 2018
ORDER
Entitlement to a 100 percent rating for major depressive disorder with dysthymia from July 1, 1996, to September 5, 2009, is granted, subject to the laws and regulations governing the payment of monetary benefits.  
Entitlement to a rating in excess of 70 percent for major depressive disorder with dysthymia from September 6, 2009, is dismissed.
FINDINGS OF FACT
1. For the period from July 1, 1996, to September 5, 2009, the appellant’s service-connected major depressive disorder with dysthymia rendered him demonstrably unable to obtain or retain employment.  
2. In a July 2018 written brief, the appellant’s attorney indicated that the appellant wished to withdraw his appeal with respect to the issue of entitlement to a rating in excess of 70 percent for major depressive disorder with dysthymia from September 6, 2009. 
CONCLUSIONS OF LAW
1. The criteria for entitlement to an initial 100 percent rating for major depressive disorder with dysthymia from July 1, 1996, to September 5, 2009, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.132 (1996).
2. The criteria for withdrawal of an appeal have been met for the issue of entitlement to a rating in excess of 70 percent for major depressive disorder with dysthymia from September 6, 2009, have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant served on active duty in the Army from September 1969 to April 1971.
This matter comes before the Board of Veterans’ Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which effectuated the Board’s October 2009 grant of service connection for a psychiatric disorder.  See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).  The appellant filed a timely Notice of Disagreement (NOD), received in April 2010.  A Statement of the Case (SOC) was issued in September 2011.  A timely substantive appeal was received in October 2011.
In June 2014, the Board denied an initial rating in excess of 50 percent for major depressive disorder with dysthymia prior to September 6, 2009, granted a rating of 70 percent thereafter, and granted entitlement to TDIU, effective September 6, 2009.  The issue of entitlement to TDIU prior to September 6, 2009, was remanded for extraschedular consideration.  An August 2014 rating decision effectuated the grant of a 70 percent rating for major depressive disorder with dysthymia and TDIU, both effective September 6, 2009.
In March 2016, the Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand, which vacated and remanded the Board’s June 2014 decision insofar as entitlement to an initial rating in excess of 50 percent for major depressive disorder with dysthymia prior to September 6, 2009, and a rating in excess of 70 percent thereafter, was denied.  It was noted that the Board had failed to consider the prior regulations for rating psychoneurotic disorders.  See 38 C.F.R. § 4.132 (1996).
A Supplemental Statement of the Case (SSOC) with respect to entitlement to TDIU prior to September 6, 2009, on an extraschedular basis was issued in April 2016.
The Board remanded the issues of entitlement to an initial rating in excess of 50 percent for major depressive disorder with dysthymia prior to September 6, 2009, and a rating in excess of 70 percent thereafter, and entitlement to TDIU prior to September 6, 2009, in May 2017.  An SSOC with respect to the two issues was issued in February 2018.
A review of the record shows that the RO has substantially complied with all remand instructions.  The appellant and his attorney have not contended otherwise.  Stegall v. West, 11 Vet. App. 268 (1998).
The appellant’s attorney stated in the July 2018 written brief that the appellant “is satisfied with the ratings assigned for his service[-]connected disabilities (including the grant of TDIU) from September 6, 2009[,] onward.  Therefore[,] . . . the claim before [the Board] at this time is entitlement to a rating over 50 percent for ‘major depressive disorder with dysthymia’ (to include TDIU) from July 1, 1996[,] to September 5, 2009.”  The Board has thus characterized the issues on appeal as stated by the appellant’s attorney.  
Withdrawal
Under applicable criteria, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  An appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202, 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.
In the present case, as set forth above, in the attorney’s July 2018 written brief, the attorney stated that the appellant “is satisfied with the ratings assigned for his service[-]connected disabilities (including the grant of TDIU) from September 6, 2009[,] onward.  Therefore[,]... the claim before [the Board] at this time is entitlement to a rating over 50 percent for ‘major depressive disorder with dysthymia’ (to include TDIU) from July 1, 1996[,] to September 5, 2009.”
The Board finds that the written withdrawal of the issue of entitlement to a rating in excess of 70 percent for major depressive disorder with dysthymia from September 6, 2009, is explicit and unambiguous.  Moreover, the appellant is represented by counsel who has more than 20 years of experience in Veterans’ law; thus, it was done with a full understanding of the consequences of such action.  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. § 20.204 (2017); see also Acree v. O’Rourke, 2018 U.S. App. LEXIS 14959, at *10-11 (Fed. Cir. June 4, 2018).  
Hence, there remain no allegations of fact or law for appellate consideration with respect to this claim.  Under these circumstances, this issue is no longer within the Board’s jurisdiction.  See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc) aff’d, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease).  Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed.
Background
A September 1993 report from a clinical social worker states that the appellant had been seen three times in the past several months.  The appellant described himself as always being nervous.  He explained that he was very irritable much of the time and that he only gets two or three hours of sleep a night.  He reported that his mind raced constantly and he often thought about dying.  The appellant admitted to several suicide attempts in the past, one being about a year ago.  He thought that life really did not mean anything to him and that he saw the world as a pretty dark, horrible place.  The appellant reported that he had never really been engaged in outpatient counseling, although he had previously been seen for psychiatric evaluations.  He reported that he had a poor relationship with his father and siblings.  However, he got along pretty well with his mother.  The appellant had been married for nearly 20 years.  He and his wife had children.  He described his marriage as stable.  The only thing that kind of got him through everything he had gone through was his family.  He seemed to love his wife and children very much.  The appellant noted that he had sinus problems and had undergone several surgeries.  He had been hit in the head several times, including by a brick once and a pistol on another occasion.  He reported experiencing headaches much of the time and that his blood pressure stays high.  The appellant reported that he did not like to be around other people and that he can take them or leave them.  He would often get in fights and could not take the stress of a work environment.  This was why he had quit his last job.  Following his active service, he worked in logging and the coal industry.  He last worked as an assistant maintenance director.  The appellant used to drink a lot in the Army and following discharge.  However, he had been totally clean for the last four years.  He reported having three assault charges several years ago and several DUI’s in the past.  He was oriented to all spheres and presented with a flat affect and low mood, with irritable undertones.  He was casually groomed and there was evidence of judgment impairment “at least light.”  The appellant reported having a thought disorder.  He maintained fairly good eye contact and had a small amount of insight into his difficulties.  
In March 1995, the Social Security Administration (SSA) granted disability benefits to the appellant based upon his depression and borderline intellectual functioning, which were considered “severe” under the Social Security Act.  It was noted that he had not performed any substantial gainful activity for SSA purposes since November 30, 1992.
An August 1995 clinical note states that the appellant had intermittent anxiety and intermittent depression.  There was no evidence of suicidal or violent thoughts.  He complained of vertigo.  Neurological functioning was intact. The impression included anxiety and depression.  A later August 1995 clinical note states that the appellant reported improvement in anxiety and depression.
A January 1996 clinical note states that the appellant had chronic anxiety and depression.  He indicated that he was disabled due to PTSD.  He had depression and probable panic attacks.  He was not doing well on Serzone.  He was not sleeping and was jittery and nervous all the time.  He stated that he was a basket case.  The clinician noted that he was very nervous and anxious with multiple vegetative symptoms.  
A February 1996 clinical note states that the appellant complained of feeling very anxious.  He reported experiencing shortness of breath and passing out.  He reported that he could not take Serax because it made him nauseous.  There were no depressive or vegetative symptoms.  He was diagnosed with mild hypertension and anxiety disorder.  He used to take Triavil and Xanax and requested to take one or the other again, but the clinician prescribed Tranxene instead.
A May 1996 clinical note states that the appellant experienced intermittent panic attacks, anxiety, and irritability.  He had some degree of significant secondary nightmares and longstanding anxiety with irritability and depression.  There was no evidence of suicidal or violent thoughts.  The impression included panic attacks, depression, anxiety, and PTSD.
A June 1996 clinical note states that the appellant reported intermittent diarrhea while on Paxil.  Depression was improved with Zoloft; however, he noted sexual dysfunctions.
On July 1, 1996, VA received the appellant’s claim of service connection for a psychiatric disability.  The appellant indicated that although a nervous condition had been noted at the time of his entry on active duty, it had been aggravated during service.  
Records received in support of the claim included a July 1996 clinical note which notes that the appellant presented with marked improvement in his anxiety, depression and panic attacks.  The assessment was anxiety improved, PTSD, panic attacks, and depression.  
In a statement received in July 1996, the appellant’s mother reported that, after he returned from his active service, the appellant was upset and depressed and wanted to be left alone.  He did not want to socialize with his family and friends.  She stated that the appellant “appeared to have a hard time adjusting back to civilian[ ]type life.  In [her] observation, [the appellant] still has a lot of anxiety and becomes very depressed.”
In a statement received in July 1996, the appellant’s wife reported that, since she has known him, she has observed him to be very nervous.  She noted that he has “always appeared to get very upset when he has encountered group of people and in making decisions.”  She stated that, in her observations of him over the years, “he gets real depressed and withdrawn.”
The appellant was afforded a VA examination in November 1996.  He reported that a family doctor was treating him for anxiety and high blood pressure.  Following separation from service, he worked in the coal mines from approximately 1973 to 1988, when he was laid off.  He then worked as a maintenance assistant for a nursing home.  He quit working there after about a year.  The appellant last worked in 1992.  The appellant reported that he cannot sleep at night and often sleeps during the day.  He continued to have problems with anger and temper control.  He easily loses anger control.  His mind races.  He reported poor concentration and spending most of his time at home or walking in the woods.  He occasionally would go hunting.  He reported being depressed most days.  He reported that he has suicidal thoughts that are chronic, but have been less intense than they were in the past.  He reported a good relationship with his children.  He stated that he has had frequent contemplations of hurting himself.  He has played Russian Roulette with a pistol.  The last incident was about one to one and half years prior to the instant examination.  
Examination revealed an appellant who was alert and oriented to all spheres.  Eye contact was fair.  Affect and mood were congruent and dysphoric.  He appeared mildly anxious.  Thoughts were clear and goal-directed.  No psychotic symptoms were evidence at the time of examination.  The appellant denied current suicidal or homicidal ideation.  He seemed to have a fair level of judgment and insight.  Intelligence appeared average, based upon the interview and fund of knowledge presented during examination.  The appellant appeared to be competent for his financial affairs.  The assessment was major depression, moderate severity, recurrent, and alcohol dependence, currently in remission.  He was also noted to have personality disorder with borderline traits.
In a statement received in October 1997, a fellow veteran who served with the appellant stated that they still keep in touch.  When they talk, the appellant “has always talked about us being overseas together and [that] the things he had done still bothers him.”
In a statement received in October 1997, the appellant’s wife reported that, in the 25 years she had known him, the appellant “has always been depressed and very nervous.”  She described him as “always like a time-bomb, ready to explode.”  She noted that “one wrong word or one wrong look could bring him to his worst.”  When they first met, the appellant was very withdrawn and seemed to be a loner.  She noted that she had a large family, but the appellant would never want to be around any of them for big family gatherings.  He would rather stay at home by himself.  If he attended any gatherings, he would sit to the side and they would leave early, soon after they arrived.  The appellant always talks about his active service.  He also would constantly read about the service and, any time a movie came on, he would have to watch it.  His wife stated that it seemed like an obsession.  She observed that he always seemed to have bad nights after he has watched a movie or they talked about his experiences in service.  She stated that he has “always had nightmares, even to the point of him waking and not knowing how or when he got in another room.”  
She stated that he has had suicidal days and nights during their marriage; however, the attempts have been failures.  Their children have always known the appellant’s “nerves and depression were something to reckon with.”  She has watched the appellant worsen over time and he has concluded that his nervousness and depression have taken a toll on him.  She has found him sitting on the floor in a corner crying, and saying he cannot go on with his life.  She stated that the appellant’s depression has gotten worse and he constantly has to be pushed to do everyday tasks such as getting up out of bed and functioning at home.  She has to go behind him and open blinds and doors.  However, the appellant states that he does not want anyone to see in and that he wants to be left alone.  She works outside the home and has “always lived with the fear of coming home and finding [the appellant] with a complete breakdown or even worse.”
In a statement received in April 1998, the appellant stated that his psychiatric medication did not seem to help.  He reported having problems getting along with people.  He usually stays home alone and is unable to sleep at night due to nightmares.  He endorsed panic attacks three to five times weekly.  He contended that he was unable to work due to his psychiatric disorder.  He stated that he is reminded daily of stressful situations from his service.  He stated that there are times in which he is unable to carry on a conversation because he cannot concentrate and forgets what he is going to say or what the other person is talking about.  He endorsed daily flashbacks.
A June 1998 clinical note states that the appellant had a history of a suicide attempt, in which he tried to shoot himself, but his wife stopped him.  He was noted to have been married for 25 years and to have a good relationship with his wife.  Examination revealed that the appellant was alert and oriented to all spheres.  There was no flight of ideas or looseness of association.  Mood was depressed with congruent, restricted affect.  There was suicidal ideation but no intent or plan.  There was no homicidal ideation.  There were no hallucinations.  Insight and judgment were fair.  While there was a history of violent behavior, there had been nothing in the past several years.  The appellant reported intrusive recollections and nightmares and hypervigilance.  He cannot tolerate any standing behind him.  He felt paranoid.  He reported that he avoids crowds and cities to instead stay in the woods so he will not have to deal with people.  He endorsed continuous anxiety and worry, with a depressed mood and inability to enjoy anything.  Energy and libido were decreased.  He felt hopeless due to intrusive thoughts.  He noted suicidal thoughts.  He quit consumption of alcohol six years before.  Although he had a history of DUIs and violence, including cutting his wife three times, there had been no violent behavior in the last six to eight years.  He walks away from such situations. 
A second June 1998 clinical note states that the appellant reported that he was always feeling like he would like to die; however, he also denied suicidal or homicidal ideation.  He also denied auditory or visual hallucinations.  On objective examination, he was alert and oriented to all spheres.  The clinician noted that the appellant had an appeal pending for service connection for PTSD and was “obviously looking for [service connection] for ‘PTSD.’”
A March 1999 clinical note states that the appellant reported being very anxious and unable to rest.  He stated that he avoided people and does not want to lose his cool in a crowd.  He claimed to feel much more relaxed when alone and in darkness.  He was spending time inside, but looked forward to fishing when weather improved.  He denied suicidal or homicidal ideation.  He was alert and oriented to all spheres.  He was cooperative and normoactive.  Anxiousness and mild dysphoria were present.  He was not psychotic.  He was neither suicidal nor homicidal.  Cognition was within normal limits.  His status remained stable. 
A July 1999 clinical note states that the appellant reported having experienced a panic-like feeling.  He does go fishing.  He attended a car race, but had to come home as he experienced panic.  He was noted to have been sober for the last three years.  He reported feeling less depressed and denied any medication side effects.  He denied suicidal or homicidal ideation.  Examination revealed that the appellant was alert and oriented to all spheres.  He was cooperative with good eye contact.  Affect was constricted and mild anxiety was present.  He was not psychotic.  He was neither suicidal nor homicidal.  There was no cognitive deficit.
A November 1999 clinical note states that the appellant reported being unable to sleep well.  He still felt irritable and depressed.  He was preoccupied with past memory and was unable to shake off.  He complained of upset stomach with Effexor.  He performed yard work and tried to fish every now and then.  He denied suicidal or homicidal ideation.  Examination revealed that he was alert and oriented to all spheres.  He was cooperative and normoactive.  Mild dysphoria was present.  He was not psychotic.  He was neither suicidal nor homicidal.  There was no cognitive deficit.  Medications were adjusted, from Effexor to Celexa.
An April 2000 clinical note states that the appellant reported continuing, recurring nightmares.  He used to get violent but now avoids such situations.  He denied any side effects of medications and also denied suicidal or homicidal ideation.  Examination revealed that the appellant was alert and oriented to all spheres.  He was cooperative and dysphoric.  He was not psychotic and had no formal thought disorder.  He was not suicidal or homicidal.  Medications were adjusted.
An October 2000 clinical note states that the appellant reported that “I get real nervous.”  He reported that he gets violent when he becomes anxious, stating that “I go off.”  He complained of nightmares for the past four to five months.  He reported hypervigilance with sleep disturbance from nightmares.  He indicated that his medication was currently not helping.  He remained nervous all the time and also reported panic attacks.  Suicidal and homicidal ideation were denied.  He had tried group counseling, but explained that “I don’t do well in groups of people.”  Examination revealed that the appellant was alert and oriented to all spheres.  He was casually dressed and fairly groomed.  Speech was within normal limits.  Mood was depressed and anxious.  Thought process was logical.  He denied suicidal or homicidal ideation, and also denied auditory or visual hallucinations.  Insight and judgment were fair.  He denied alcohol consumption in the past four years.  Medications were adjusted.
A December 2000 clinical note states that the appellant reported that he used to be a heavy drinker, but quit on his own approximately two years prior.  He was alert and oriented to all spheres.  
A February 2001 clinical note states that the appellant reported continuing nightmares from which he would awaken with anxiety and hollering.  He reported feeling depressed, but denied any suicidal or homicidal intent or plan.  He had not used alcohol in more than five years.  He tries to stay busy at home doing things.  On weekdays he goes to North Carolina, where his wife works, and he goes home to Virginia on weekends.  Examination revealed that he was alert and oriented to all spheres.  He was cooperative.  Mood was euthymic.  He was not psychotic and there was no formal thought disorder.  He was not suicidal or homicidal.  There was no cognitive deficit.  
A March 2001 orthopedic note states that the appellant complained of left knee pain which began 30 years prior.  The appellant was alert, oriented, and appropriately responsive to questioning.  
In July 2001, antidepressant medications were changed due to side effects.  The clinician noted that the appellant was alert, oriented, and well-groomed.  He exhibited little eye contact.  He was anxious and appeared to have a restricted affect.  He denied suicidal or homicidal ideation.
A January 2002 clinical note states that the appellant continued to feel depressed.  He reported that he worries a lot and endorsed crying spells.  He feels hopeless and helpless at times.  Sleep fluctuates.  Appetite was good, while he had a decreased energy pattern.  He did not consume alcohol.  He reported that nightmares occurred two to three times per week.  He noted that flashbacks had decreased.  He endorsed hypervigilance and hyperstartle.  He indicated that Xanax helped his anxiety and denied side effects.  He had been on various other medications in the past.  He also noted that Xanax helped with his irritability.  Examination revealed that he was alert and oriented to all spheres.  He was cooperative, with good eye contact and normal speech.  Mood was “okay,” while affect was flat.  He denied suicidal or homicidal ideation.  There was no psychosis evident.  Thought process was coherent with fair insight and judgment.  Memory was grossly intact.  Medications were adjusted.  He was advised to attend group therapy but stated that he had tried in the past and “I just don’t want to talk about it.”
A June 2002 clinical note states that the appellant indicated that Remeron was not helping and wanted to begin Trazodone again.  He explained that, since discontinuing Trazodone, he was having more nightmares and flashbacks.  He tried to stay busy at home and by doing outdoor work.  He feels depressed sometimes and also reported anhedonia.  Suicidal or homicidal intent or plan was denied.  Examination revealed that he was alert and oriented to all spheres.  He was cooperative and affect was constricted.  He was of normal intensity.  Mild dysphoria was present.  He was not psychotic and there was no formal thought disorder. He was neither suicidal nor homicidal.  There was no cognitive deficit.  Medications were adjusted.
The appellant was afforded a VA examination in September 2002.  The appellant reported that stressful incidents from his active service still stay with him.  He endorsed feeling anxious and depressed since his active service.  He experiences a lot of nightmares.  He claimed that one night, he jumped up, pulled out his gun, and began shooting into his bed while his wife was in it.  He reported that he has always been very distant from others.  He had problems with alcohol upon separation from service, which resulted in DUI’s.  He was also extremely irritable and had a number of assault charges.  However, he had cleared that up.  While he was still irritable, he no longer assaults people.  He also has quit drinking.  He still has nightmares from time to time, and reported that he does not get along with others well.  He has been on Social Security Disability since 1992 and was not working.  He has never had a psychiatric hospitalization.  His last job was as a truck driver.  He was noted to still be married.  When he first got back after his service, he began playing Russian Roulette by himself because things were so bad.  
Examination revealed that the appellant was neatly groomed and dressed.  Behavior was normal.  He was pleasant, cooperative, and polite.  He was neither hostile nor belligerent.  Speech was good.  He was spontaneous and logical.  He was not inhibited or vague.  There was no pressured speech, flight of ideas, or loose associations.  There were no hallucinations, delusions, paranoia, or ideas of reference.  He was not homicidal.  While he has had suicidal thoughts at times, he did not have any at present.  He endorsed nightmares, intrusive memories, hypervigilance, startle, and isolation.  His affect was notable for moderate depression and moderate to moderately severe anxiety.  He was oriented and alert, per cognitive examination.  Judgment was good, while insight was poor.  Intelligence was average.  
The September 2002 VA examiner provided an addendum, following review of the claims file, in November 2002.  The examiner noted that the history provided to other VA clinicians was fairly consistent with the history the appellant had provided during the September 2002 examination.  
The appellant was afforded a VA examination for his left knee in March 2004.  The claims file was reviewed.  The appellant reported that he had been disabled since 1992.  He stated that he was working in a nursing home for the preceding year, and had worked as a coal miner for 18 years.  Because of his knee problems, he could not climb stairs.  Thus, he was disabled from his job at the nursing home.  He currently stays at home most of the time, walking around the house.  He had no difficulty in activities of daily living, including showering.  However, he occasionally requires assistance from his wife to help him clean the foot because he cannot bend down well.  The most difficult aspect for him is his inability to walk freely on stairs, uphill, or downhill because he lives in a mountain area.  However, he is still able to walk around the house.  
The appellant was afforded a VA psychiatric examination in March 2004.  The claims file was reviewed.  The appellant reported that he has had problems for the last 33 years, but the symptoms are worse.  He reported that he has had two breakdowns.  He described them as times when he “was crying and went to pieces.”  Each lasted two to three weeks and remissions were spontaneous.  He was never hospitalized.  He endorsed nightmares and feeling anxious.  He stated that he felt depressed and stayed to himself.  He indicated that his sleep is better since he has been on medication, but sleep is interrupted.  Nightmares occur two to three times a week.  He also has intrusive thoughts.  He noted that he is anxious, easily startled, hypervigilant, and uncomfortable in crowds.  He is short-tempered and does not talk about his military experiences.  He stated that he got depressed 34 years prior.  Concentration is “all right.”  He stated that he cries, his energy is good, and his interest is diminished.  
He claimed that he has made 30 to 40 suicide attempts but was never hospitalized.  He had no current problems with drugs or alcohol and had never been to rehab.  He has never had inpatient treatment.  He has been placed on various psychiatric medications over the years and noted that he is seen by a VA clinician every six months.  He reported that he last worked in 1992.  After he was laid off from the coal mines, he went to work in a nursing home.  However, he quit due to his nerves.  He reported that he was receiving Social Security benefits for his “nerves.”  The appellant lives with his wife.  He does chores around the house and has some friends.  He sleeps a lot, spends time in his garage, and watches television.  It was noted that his mother and sisters were living and he described his mother as “nice.”  He was noted to be a high school graduate and he has a driver’s license.  He noted that he was really close to his children.  The appellant’s physical health seemed to be pretty good.  He had some friends and limited recreational and leisure pursuits.  
The examiner reviewed the claims file, noting that a 1996 psychiatric evaluation was of record; however, the VA examiner was unable to decipher the handwriting to make out the impression.  The record showed that the appellant had a history of admission to a hospital in 1983 with a diagnosis of hypersomnolence of undetermined cause.  A 1998 psychiatric evaluation report was also unintelligible.  On current examination, the appellant was alert, cooperate, and casually dressed.  He answered questions and volunteered information.  There were no loosened associations or flight of ideas.  There were no bizarre motor movements or tics.  His mood was a bit tense, but cooperative and friendly.  Affect was appropriate.  The appellant alleged nightmares and intrusive thoughts.  There was no current homicidal or suicidal ideation or intent.  There was no impairment of thought process or communication.  There were no delusions, hallucinations, ideas of reference, or suspiciousness.  He was oriented to all spheres.  Memory appeared to be good for both remote and recent.  Insight and judgment appeared adequate, as did intellectual capacity.
The appellant was afforded a VA examination in April 2004.  The claims file was reviewed.  The appellant reported that the worst of his current symptoms were nightmares and bad memories.  He later indicated that he has experienced, more than once a month, episodes that he associated with the term “panic attacks.”  Such were manifested by diarrhea and shortness of breath.  By using his medications, he gets over these episodes in about a day.  He generally feels fairly well when he is alone and has been taking his medications, although there is still some residual depression and nervousness.  The appellant explained that he used the term “depression” in terms of loss of interest in activities.  He stated that “all I want to do is forget.”  He endorsed frequent suicidal ideation, the last time being some time the week before.  He stated that, at times, he becomes so nervous that he does not care if he lives.  His wife calls him about four times a day from work to stay in close touch with him.  
When his childhood history was discussed, the appellant indicated that he had a few fights as a teen, but generally got along well.  He did describe his childhood as hard.  He indicated that his grades in school were little above average and that his father, who admittedly was alcoholic, never whipped him and was one of the best-liked men in the neighborhood.  However, the VA examiner noted that the appellant consistently in prior examinations reported severe childhood abuse from his father and also had reported learning difficulties in school.  The examiner opined that this extreme discrepancy was attributed to an effort by the appellant to place the etiology of his problems during the time he was on active duty.  Thus, the examiner determined that the appellant’s report about his early life during the instant examination was a fabrication.  Indeed, earlier reports indicated that the appellant has scars on his head from blows of a pistol received from his father, and was threatened with death at times by his father prior to enlistment.  
During examination, the appellant did not exhibit notable deficits of memory, concentration, or communication.  Affect was well-modulated and there was no reported difficulty in his completion of the psychometric procedures.  Mood was sober, but not visibly depressive.  He reported that he has been using Xanax four times daily and Trazodone at bedtime, but did not provide any specifics regarding recent dosages.  While the breadth and severity of symptoms reported on the trauma symptom inventory and also on the Minnesota Multiphasic Personality Inventory (MMPI) gave rise to some concern about the validity of his report, such were not so high as is often seen in compensation examination cases.  
The appellant was afforded a VA examination in March 2006.  The claims file was reviewed.  The appellant reported that he had a stressful life prior to active duty, including an alcoholic father who would hold a gun to his head.  Following separation from active duty, the appellant drank, had nightmares, had DUI’s, and was jailed a few times.  He reported that he currently experienced interrupted sleep and nightmares almost nightly.  He endorsed intrusive thoughts.  He claimed that he was anxious, easily startled, hypervigilant, uncomfortable in large crowds, and did not talk much about his in-service stressors.  He reported that he feels sad and cries, and had decreased interest and energy.  He stated that there were no spells or periods of time when he does not feel depressed to one degree or another.  His appetite was good and concentration was fair.  There were no suicide attempts or panic attacks.  He has no problems with drugs or alcohol and he had never been to rehab.  He denied any psychiatric hospitalizations.  The appellant reported that he receives outpatient psychiatric treatment every six months.  He reported that the prescribed Alprazolam and Trazodone help him.  
The appellant stated that he last worked in 1993.  He performed maintenance work at a nursing home for one year then quit.  He reported that he currently receives Social Security Disability because of his nerves and his knee.  He lives by himself and performs his own cooking and cleaning.  He has very few friends.  He listens to the radio and does not own a television.  He reported that his mother was nice.  He was a high school graduate.  The appellant reported he recently lost his driver’s license because of too many points.  However, he was not on probation or parole.  The appellant was married, but separated.  He had two children, but they were not close at all.  The appellant had limited social relationships and did not have many recreational or leisure pursuits.  His physical health was not good.  
Objective examination revealed an alert, cooperative appellant who was casually but appropriately attired.  He answered questions and volunteered information.  There were no loosened associations or flight of ideas.  There were no bizarre motor movements or tics.  Mood was tense, but cooperative and friendly.  Affect was appropriate.  He reported nightmares and intrusive thoughts.  There was no homicidal or suicidal ideation or intent.  There was no impairment of thought process or communication.  There were no delusions, hallucinations, ideas of reference, or suspiciousness.  He was oriented to all spheres.  Recent and remote memory appeared adequate.  Insight and judgment appeared adequate, as did intellectual capacity.  The appellant reported reexperiencing stressful in-service incidents through nightmares and intrusive thoughts.  He avoided talking about his in-service stressors.  He was less interested in hobbies, interests, and social activities.  He felt distant from others and endorsed sleep disturbance.  Temper was okay.  Concentration was “not real good.”  He was anxious, hypervigilant, and easily startled.  Such problems have interfered with work and social activities and cause distress.  The appellant stated that his symptoms have affected him in that he was “depressed, I don’t sleep, I stay to myself.”  The appellant was noted to have impaired interpersonal interactions and was capable of managing his own financial affairs.  
A September 2006 clinical note states that the appellant had been taking Alprazolam four times daily.  He was encouraged to cut down by one-half pill per day and he indicated that he would try this.  He reported that he was eating and sleeping well, but had nightmares.  He denied feeling helpless and hopeless.  He reported that his health was good.  He noted chronic pain in his arm, neck, and leg.  He stated that he was getting along fairly well with others.  Examination revealed that the appellant was alert and oriented to all spheres.  There was good interaction during the interview.  Mood was good with congruent affect.  He was dressed appropriately for the season and made good eye contact.  He responded well to questions asked.  There was no psychomotor agitation.  Speech was spontaneous and within normal limits.  Thoughts were logical and goal-directed.  There were no auditory or visual hallucinations or delusions.  Suicidal and homicidal ideation were denied.  He denied the use of alcohol or illegal drugs.
A March 2007 clinical note states that the appellant reported taking his medication as prescribed.  He noted that he had been on antidepressants in the past but did not like how he felt while taking them.  He stated that he is doing well on his current prescriptions.  He noted that he has been keeping his house clean and has gotten out by going on walks.  He noted that he felt helpless and hopeless at times, but he felt like he had a lot to live for.  He enjoyed fishing and camping.  He noted chronic pain and that he had an upcoming X-ray for right hip pain.  Examination revealed that the appellant was alert and oriented to all spheres.  He had good interaction during the interview.  Mood was good with congruent affect.  Speech was spontaneous and within normal limits.  Thoughts were logical and goal-directed.  There were no auditory or visual hallucinations or delusions.  Suicidal and homicidal ideation were denied.  Drug and alcohol use was denied.
An April 2008 clinical note states that the appellant reported doing fairly well on his current medication regimen.  He was eating and sleeping well.  The appellant denied any overwhelming panic, anxiety, mood swings, or crying spells.  He admitted to auditory hallucinations of “voices,” but stated that “I just doublecheck myself and I go on.”  Examination revealed that he was alert and attentive and oriented to all spheres.  He appeared pleasant, cooperative, and reasonable.  He was appropriately groomed and was without psychomotor retardation/agitation.  Speech was within normal limits.  Mood was euthymic with congruent affect.  He did not seem to be responding to any internal stimuli.  Thought process and association were logical, linear, coherent, and goal-directed.  He denied any suicidal or homicidal ideations.  No perceptual disturbances were reported.  Insight and judgment were fair.  Memory appeared intact.  Medication options for auditory hallucinations were discussed; however, the appellant did not want to begin any medication therapy.  He explained, “I do okay after I doublecheck myself.”
A February 2009 clinical note states that the appellant presented with a fairly anxious demeanor.  He reported ongoing problems with PTSD symptoms, including hallucinations, paranoia, avoidance of others, mood lability, and increased anxiety.  He reported that he stayed at a nephew’s house the night before and had a nightmare relating to his active eservice.  He reported that any sort of disruption from his normal schedule usually precipitates a worsening of symptoms.  Examination revealed an alert and attentive appellant who was oriented to all spheres.  He appeared pleasant, cooperative, and reasonable.  He was appropriately groomed without psychomotor retardation or aggravation.  Speech was within normal limits.  Mood was euthymic and affect was congruent with mood.  He did not seem to be responding to any internal stimuli.  Thought process and association were logical, linear, coherent, and goal-directed.  He denied any suicidal or homicidal ideations.  There were no perceptual disturbances reported.  Insight and judgment were fair.  Memory appeared intact.  Continuing the appellant’s medication as previously prescribed was discussed.  The appellant denied the desire for antipsychotic medication.
An August 2009 clinical note states that the appellant reported feeling “about the same” since his February 2009 appointment.  He rated his mood as 2/10 on an average daily basis.  He sleeps “pretty good,” six to eight hours per night, except for PTSD-related nightmares.  Appetite was good.  He reported being able to take care of normal daily activities.  He has not stopped doing any activities that he normally does, such as hiking and fishing.  He endorsed nightmares three to four times weekly and daily flashbacks.  Xanax helps with all symptoms, including sleep.  Trazodone had been prescribed for sleep previously, but it ended up keeping him awake.  He was satisfied with his current medication regiment and did not want to make any changes.  He denied Xanax side effects and reported taking it as prescribed.  He endorsed one suicide attempt 15 years ago by playing Russian Roulette.  A bullet came out of the barrel and hit him in the side of the head, but at an angle that did not penetrate the skull.  He did not receive any medical attention at that time.  He adamantly denied any intent or plan or thought of harming himself.  He denied using drugs or alcohol.  Examination revealed that he was alert and oriented to all spheres.  Mood was “tired.”  Affect was in an appropriate range.  He denied any thought or intent to harm self or others.  Auditory and visual hallucinations were denied.  There was no evidence of paranoia or delusional thinking.  Thoughts were goal-directed and logical.  He appeared cognitively intact.  It was noted that he was divorced.
In September 2009, the appellant’s attorney submitted a medical opinion he had obtained from Michael L. Cesta, M.D., a private psychiatrist.  In a report dated September 6, 2009, Dr. Cesta indicated that he had reviewed the appellant’s claims file, including his medical records and the lay statements, and performed a personal interview with the appellant.  Dr. Cesta opined that the appellant’s psychiatric symptoms developed while on active duty and that his pre-service childhood abuse did not contribute to the development of any diagnosed psychiatric disorder.  Dr. Cesta stated that he spent 60 minutes interviewing the appellant, “who can only be described as profoundly psychiatrically ill.”  
Mental status examination indicated that the appellant was willing to cooperate with the interview, but was impaired from doing so.  Speech was extremely low in rate, tone, and volume.  Mood was described as “okay” but affect was flat and unresponsive, without any range.  Thought process appeared linear, but Dr. Cesta stated that “there was such a paucity of speech that was hard to discern this.”  Thought content included intermittent passive suicidal ideation without current plan or intent.  There was no indication of homicidal ideation.  The appellant did not describe any symptoms of psychosis, such as auditory or visual hallucinations or other perceptual disturbances.  There was no evidence of delusions, illusions, or other bizarre thought processes.  The appellant had difficulty concentrating and focusing on the interview.  Although not cognitively impaired, he appeared to be significantly slowed in his thinking as a result of his psychiatric disease.  
Dr. Cesta stated that mental status examination was consistent with a depressive episode.  Dr. Cesta opined that the appellant “has been disabled, virtually since his discharge from the service from his psychiatric illness.”  Dr. Cesta stated that, “although there is brief mention of the patient having alcohol dependence[,] that has long been in late sustained remission.”  Dr. Cesta also opined that “the documentation is quite clear in indicating that [the appellant] has been unemployable since at least 1992, but more likely from his discharge after active duty service, due to the combined depressive disorders.”  The report does not state upon which day the interview with the appellant took place.  
The appellant’s VA Form 21-8940, dated February 2010, was received in April 2010.  He contended that he was unemployable as a result of his major depression.  He stated that his disability first affected full-time employment in December 1991 and he last worked full-time and became too disabled to work in December 1992.  He reported that he worked as a coal miner throughout the 1980s for various employers and lost time from illness “often.”  He last worked in maintenance at a healthcare facility from 1991 to 1992 and lost time from illness “often.”  He stated that he left his last job due to disability.  He noted that he had a high school education.
A February 2013 opinion from Dr. Cesta states that he again reviewed “the clinical record, service record, and ancillary information.”  He also reviewed his initial notes from his interview with the appellant “during [the] timeframe” in which he completed the report dated September 6, 2009.  However, he again did not state upon which date he had interviewed the appellant.  Dr. Cesta stated that, since the appellant’s first psychiatric treatment in 1980, he “continued to have a steady progression of his depressive symptomatology over the next two decades consistent with a recurrent major depressive disorder and manifested a steady deterioration this clinical functionality including documented evidence of profound social isolation, inability to tolerate interpersonal relationships both in and out of the workplace, and a diagnosis of dysthymia in conjunction with his major depressive disorder [sic].”  
Dr. Cesta stated that, “by 1992[, the appellant] was severely and pervasively mentally ill.”  He stated that the appellant was playing Russian Roulette with a pistol and displayed hopelessness, helpless, despair, and classic neurovegetative symptoms of depression.  “In modern psychiatric nomenclature he would be described as having a treatment resistant depression having failed pharmacologic management, psychotherapeutic services, and other interventions which usually allow for at least a partial remission.”  Dr. Cesta stated that his “analysis of the veteran’s psychiatric history and diagnosis is unchanged after review of the clinical information my notes from the September 9, 2009[,] diagnostic interview.  His primary diagnosis is major depressive disorder, recurrent, severe, with psychotic features and dysthymia.”  
Dr. Cesta opined that the appellant’s history of alcohol dependence in late sustained remission did not play a role in his ongoing disability.  It was also opined that the appellant had “not had any days of enjoyment over the last several decades and has been completely altered in his capacity to engage in life either occupationally or socially.”  Dr. Cesta also discussed the severity of the appellant’s symptoms from 2009 to the present, based on review of additional clinical records.  Dr. Cesta stated that, although the appellant’s major depressive disorder had some episodic improvement, his symptoms were still prominent and severe in nature.  
Dr. Cesta stated that the appellant has had major depressive disorder since at least 1980[,] if not far earlier[,] and became completely unemployable since 1992 when he last worked full[-]time.”  He also stated that his “review of the more recent clinical documentation suggests a treatment[-]resistant depression with only episodic improvement with pharmacologic management and psychotherapeutic intervention. . . . if anything, the intervening years between 2009 and the present day have revealed a component of psychotic features that wasn’t fully evidence during my initial evaluation.”  Such suggested “an even worse clinical course, prognosis, and severely diminished capacity for [the appellant] to function in even the most basic of social settings[,] let alone an occupational environment.”  
A November 2015 memorandum to the Director, Compensation and Pension Service, summarized the evidence of record and recommended that entitlement to TDIU on an extraschedular basis be granted, based on the severity of the appellant’s major depressive disorder with dysthymia, employment history, and educational history.
In the March 2016 Joint Motion for Partial Remand, it was noted that the Board had not considered the applicability of the schedule of ratings for psychoneurotic disorders, see 38 C.F.R. § 4.132 (1996), in effect at the beginning of the period on appeal.  It also stated that “[t]he parties observe that medical evidence of record suggests that [the appellant] may have been unemployable due to his psychiatric illness prior to September 6, 2009.”
In April 2016, the Acting Director, Compensation Service, determined that entitlement to TDIU on an extraschedular basis prior to September 6, 2009, was not warranted.  It was noted that the appellant had been receiving medication and attending therapy every six months for his depression.  There were no hospitalizations and he had not participated in any intensive outpatient treatment program.  The Acting Director concluded that the evidence of record did not support the appellant’s contention that he was unable to work due to service-connected disability prior to September 6, 2009.
A January 2017 opinion from Dr. Cesta states that the appellant’s records were again reviewed.  Dr. Cesta opined that the appellant has been totally disabled at least since he stopped working in 1992, based on his medical and employment history.  Dr. Cesta stated that he originally reviewed the case in August 2009 and wrote a report in September 2009.  At such time, he opined that the appellant “had been severely psychiatrically impaired since his discharge.”  In February 2013, Dr. Cesta “found that [the appellant] was unemployable by 1992.”  Dr. Cesta opined that it was unusual that entitlement to a TDIU was granted effective “the date of [his] report which had absolutely nothing to do with the clinical deterioration of the patient, nor did it represent the specific point where had become totally disabled.”  September 6, 2009, “was only the date that the documentation was completed, and was not some watershed moment for [the appellant] when he suddenly became disabled, which had happened over a decade previously.”  
Dr. Cesta referred to his prior opinions which indicated that the appellant “had severe and pervasive symptoms of major depressive disorder dating back to 1992.”  Dr. Cesta expressed surprise that the Director, Compensation Service, did not follow a November 2015 recommendation by VA to grant TDIU on an extraschedular basis from July 1, 1996, to September 5, 2009.  Dr. Cesta stated that, “[a]s I have indicated in my two previous reports, the evidence in this case fully supports that [the appellant]’s major depression has been totally incapacitating for decades.  Not only is the medical record extraordinarily clear, but there are statements from his ex-wife describing the veteran as being completely dysfunctional, being incapable of attending to basic day-to-day tasks, and displaying classic signs and symptoms of severe depressive symptomatology.”  
Dr. Cesta stated that the November 1996 VA examination report indicated that the appellant was not in control of his anger and had chronic ongoing suicidal ideation.  The appellant was described as being a danger to himself or others.  In April 2004, the appellant reported that he jumped out of bed from a nightmare and started shooting into his bed while his wife was still in it.  In March 2006, the appellant was described as anxious, easily startled, hypervigilant, and uncomfortable in large crowds.  Dr. Cesta opined that the appellant had never had a remission of his depressive symptoms.
Dr. Cesta expressed displeasure with the April 2016 denial of award of a TDIU on an extraschedular basis because such “relied on negative evidence, and shunned the evidence of severe impairments including chronic suicidal ideation.”  Dr. Cesta stated that “there is every indication that [the appellant] has been impaired since 1992, and his precipitous deterioration from mental illness was not, in any way, specifically associated with the date of my September 2009 report.”  Dr. Cesta stated that, “despite treatment [since 1980], [the appellant] continued to have a steady progression of his depressive symptomatology over the next two decades, consistent with a treatment[-]resistant major depressive disorder.  This has let do a steady deterioration in his functionality including extensive social isolation, [including] poor interpersonal relationships in and out of the workplace.”  
Dr. Cesta noted that the appellant “engaged in behaviors such as playing Russian roulette with a pistol, developing chronic pervasive suicidal ideation, and manifesting persistent and intractable neurovegetative symptoms of depression.”  The appellant “clearly had failed pharmacologic management and psychotherapeutic services.”  Although the appellant has received psychiatric treatment, “there was a steady decline in his functionality” and the appellant “continues to have significant difficulties with sleep, agitation, irritability, mood swings, isolation, depressed mood, feelings of worthlessness, poor concentration, poor social interactions, avoidance of any engagement with other individuals, chronic suicidality, and significant anxiety.”  The appellant has been “consistently described as having little interest in his day-to-day life, participates only in a solitary existence, and is noted to be persistently suicidal.”  He has experienced “paranoid thought processing, auditory hallucinations, thought disorganization, and other components of a psychotic component to his major depressive disorder.”  Treatment providers describe the appellant as a “high risk for severe decompensation secondary to mental illness including completed suicide.”  
Dr. Cesta opined that intermittent, mild, and transient improvements had not been sustained.  Such suggested to him that a partial remission had never been achieved.  Rather, the appellant “clearly has severe and pervasive mental illness that is unremitting and would be considered treatment[-]resistant.”  He had recurrent thoughts of death, ongoing neurovegetative symptoms of depression, and profound impairments in all areas of life including the most basic of social settings.  In his 2013 report, Dr. Cesta concluded that the appellant has had major depressive disorder, recurrent, severe, with mood incongruent psychotic features since 1980 and he was clearly unemployable by 1992 when he last worked full-time.  Prognosis was guarded, and it is likely he would be even more profoundly disabled over time.
Dr. Cesta stated that a November 2015 report sent to the Director, Compensation Service, indicated that award of a TDIU on an extraschedular basis should be effective July 1, 1996.  However, the Director, Compensation Service, determined that such was not warranted in April 2016.  Dr. Cesta expressed his displeasure with the conclusion, stating that “[t]here is so much wrong with this administrative review that it is hard to even consider it a valid clinical document coming to a reasonable conclusion.”  Dr. Cesta stated that the cited clinical records were “associated with random time frames representing the veteran’s clinical treatment” and opined that the Director, Compensation Service, had “faulty reasoning.”  He opined that the appellant’s “treating providers and caregivers [likely] have created an environment preventing . . . hospitalizations, and have successfully mitigated the abrupt deterioration that can cause completed suicide, violence, or the need for institutionalization.”  However, the appellant “only functions in a socially isolated life, is incapable of engaging in consistent and appropriate interpersonal interactions, and has removed himself from circumstances that could, potentially, cause hospitalization or an abrupt deterioration.”  
Dr. Cesta stated that the appellant relied on caregivers to attend to many of his basic daily needs.  The appellant’s “insidious and subtle deterioration [was] clearly manifested by [the appellant] over three decades.”  It was noted that the appellant had “treatment[ ]resistant psychotic depression, which was a deteriorating illness that, by definition, has no remarkable solution and will lead to a steady decline over time” regarding functional capacity.  Dr. Cesta opined that this deterioration began in 1980 and “became intractable by at least 1992[,] if not earlier.”  However, such has “only progressed more profoundly through the present day.”  Dr. Cesta concluded that the April 2016 opinion by the Director, Compensation Service, was “inherently flawed, superficial, pejorative, and inconsistent with the remainder of the medical record.”  Rather, Dr. Cesta indicated that he believed that “it is extraordinarily clear that [the appellant] has been disabled for decades, beginning 1992 and going forward.”
Attorney Arguments
In an April 2013 brief, the appellant’s attorney stated that the appellant had not worked since 1992 due to his major depressive disorder, which had been recognized as disabling by SSA.  It was argued that the appellant was entitled to either a 70 percent rating and TDIU or a 100 percent schedular rating, effective July 1, 1996.  It was argued that the appellant has been a danger to himself and others throughout the period on appeal.  The November 1996 VA examination report was referenced, in which the appellant was noted to have played Russian Roulette with a pistol.  The appellant’s March 2004 report of 30 to 40 suicide attempts since his active service was also noted.  He was noted to be in a “high risk category” based on a July 2012 suicide risk assessment.  It was contended that the appellant had persistent suicidal ideation and attempts.  In March 1999, the appellant reported that he avoids being around people because he is concerned he may lose his cool in a crowd.  In October 2000, it was noted that the appellant experienced frequent panic attacks and had a tendency to become violent when anxious.  His ex-wife described him as a time bomb in October 1997.  The attorney contended that the September 2009 opinion by Dr. Cesta was fully supported by the evidence of record, which indicated that the appellant’s symptoms were severe.  The attorney concluded that the appellant has experienced significant occupational and social impairment in the form of severe and frequent panic attacks, suicidal behaviors and attempts, and otherwise violent tendencies which have left him totally impaired and unable to work for decades.
In the September 2015 brief to the Court, the attorney contends that the Board found as fact that the appellant’s service-connected disabilities rendered him unemployable prior to September 6, 2009, because the Board remanded the issue of entitlement to TDIU in order for extraschedular consideration.  It was also argued that the appellant was demonstrably unable to obtain or retain employment.  See Johnson (Gary) v. Brown, 7 Vet. App. 95, 99 (1994).
In January 2017, the appellant’s attorney argued that the appellant “has been unfit for employment in any workplace since he stopped working in 1992.”  Thus, the award of a 70 percent rating and TDIU, or a 100 percent rating, be awarded effective July 1, 1996.  A November 1996 VA examination report in which the appellant was described as continuing to have problems with anger and temper control, and that he easily loses anger control, was referenced, as was an October 2000 notation that he gets violent when he becomes anxious and he remains nervous all the time.  The appellant noted in 2004 that he had experienced two breakdowns, each lasting two to three weeks.
In July 2018, the appellant’s attorney stated that the appellant was “satisfied with the ratings assigned for his service[-]connected disabilities (including the grant of TDIU) from September 6, 2009[,] onward.  Therefore, following a March 2018 [SSOC], the claim before [the Board] at this time is entitlement to a rating over 50 percent for ‘major depressive disorder with dysthymia’ (to include TDIU) from July 1, 1996[,] to September 5, 2009.”  The attorney disagreed with the March 2018 SSOC, which stated that September 6, 2009, was the first date that the appellant met the criteria for a 70 percent rating, based upon Dr. Cesta’s September 2009 opinion.  The attorney noted that this was “at odds with the report itself,” which included the opinion that the appellant was unemployable since 1992 or earlier.  It was noted that the Board found such opinion highly probative in October 2009, when service connection was granted.  Such was described as “the most comprehensive report of record” as it was based on consideration of “the Veteran’s entire history.”  It was argued that using such opinion to support the award of a 70 percent rating on September 6, 2009, and not earlier, violated the Court’s holding in McGrath v. Gober, 14 Vet. App. 28 (2000).
Applicable Law
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.
In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous. . . .”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found.  Id.
Rating Criteria Changes
VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change.  The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.  VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).
Prior to November 7, 1996, major depression was rated under the general rating formula for psychoneurotic disorders in 38 C.F.R. § 4.132 (1996).  Effective November 7, 1996, depressive disorder was rated under the general rating formula for mental disorders in 38 C.F.R. § 4.130 (2017).
Rating Criteria Prior to November 7, 1996
Under the general rating formula for psychoneurotic disorders, a 50 percent rating required that the ability to establish and maintain effective relationships with people was considerably impaired and, by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment.  38 C.F.R. § 4.132 (1996).
A 70 percent rating was assigned when the ability to establish or maintain effective or favorable relationships with people is severely impaired.  The psychoneurotic symptoms are of such severity and persistence that there is severe impairment to obtain or retain employment.  Id.
A 100 percent rating was assigned when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community.  Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes, associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior will be present; the individual is demonstrably unable to obtain or retain employment.  The Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation.  See Johnson v. Brown, 7 Vet. App. 95, 97 (1994).
In addition, VA promulgated 38 C.F.R. § 4.16(c), effective March 1, 1989, which stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code.  See 54 Fed. Reg. 4280-01 (Jan. 30, 1989).  38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996.  61 Fed. Reg. 52695 (Oct. 8, 1996). 
Under the schedular criteria in effect prior to November 7, 1996, the Court held that where the veteran’s mental disorder was assigned a 70 percent evaluation and that mental disorder precluded such veteran from securing or following a substantially gainful occupation, regardless of whether the veteran had other compensable service-connected disabilities, the mental disorder must be assigned a 100 percent evaluation under the appropriate diagnostic code.  Johnson v. Brown, 7 Vet. App. 97.
Rating Criteria Effective November 7, 1996
Under the rating criteria for mental disorders, a 50 percent rating is assigned when there is 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.  38 C.F.R. § 4.130, DC 9433-9434.
A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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.
Finally, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.
In Maurehan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims held that the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code.  Rather, VA must consider all symptoms of a claimant’s disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.”  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013).  The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”  Id. at 118.  The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’”  Id. 
Analysis
Rating Criteria Favorability
As an initial matter, the Board notes that a plain reading of the diagnostic criteria in effect prior to and after November 7, 1996, indicates that they are substantially similar in that both assign disability ratings based on the level of social and occupational impairment.  Importantly, however, the rating criteria in effect from November 7, 1996, expressly require both total social and occupational impairment to qualify for a 100 percent schedular rating.  The criteria in effect prior to that date, however, allow for the assignment of a 100 percent schedular rating where the service-connected psychiatric disability renders a veteran demonstrably unable to obtain or retain employment.  Given the facts in this case, the Board finds that the rating criteria in effect prior to November 7, 1996, are more favorable to the appellant.  Thus, the Board will apply that version of the rating criteria for purposes of determining the appellant’s entitlement to a rating in excess of 50 percent for major depressive disorder with dysthymia for the period from July 1, 1996, to September 5, 2009.  
After considering the evidence of record, and affording the appellant the benefit of the doubt, the Board finds that the appellant’s service-connected major depressive disorder with dysthymia warrants an initial 100 percent schedular rating under the rating criteria in effect prior to November 7, 1996, for the period from July 1, 1996, to September 5, 2009.  
As a preliminary matter, the Board notes that the record on appeal indicates that in addition to service-connected depressive disorder, the appellant has also been noted to have nonservice-connected borderline intellectual functioning, alcohol dependence, and a personality disorder with borderline traits.  The record, however, does not contain any basis upon which to distinguish any nonservice-connected psychiatric manifestations from the manifestations associated with the service-connected major depressive disorder.  For example, the diagnosis of borderline intellectual functioning was apparently based on an August 1994 consultative examination which showed that the appellant exhibited an IQ of 79.  The appellant has in receipt of disability benefits from the Social Security Administration based on depression and borderline intellectual functioning since 1992.  However, the clinical records corresponding to the period on appeal indicate that the appellant is of average intelligence and/or intellectual capacity.  No further diagnoses of borderline intellectual functioning are evident in the record during the period at issue in this appeal.  
Given the available record, the Board will therefore attribute all of the appellant’s psychiatric symptomatology to his service-connected major depressive disorder in determining the appropriate rating to be assigned.  Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that where an examiner is unable to distinguish the symptoms of a service-connected disability from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability. 
The contemporaneous clinical and lay evidence reflects that, for the entire period at issue in this appeal, the appellant’s major depressive disorder has resulted a severe impairment in the ability to maintain effective or favorable relationships.  For example, in July 1996 and October 1997 statements, the appellant’s mother and then-spouse described the appellant’s inability to participate in gatherings with family and friends.  They described him as withdrawn, a loner, and as becoming “very upset” if he was in a group of people.  The appellant’s former spouse indicated that the appellant was “like a time-bomb, ready to explode” if he perceived another person offering “one wrong word or one wrong look.”  
A November 1996 VA psychiatric examination report indicates that the examiner concluded that the impairment caused by the appellant’s psychiatric symptoms was “moderate to severe.”  VA clinical records from 1998 to 2002 document the appellant’s consistent reports that he avoided social interactions in order to prevent “losing his cool” or experiencing panic attacks, and had been unable to participate in group therapy as he was unable to tolerate a group setting.  A September 2002 VA examination report reflects that the examiner assigned a Global Assessment of Functioning Score of 45, reflecting serious impairment in the appellant’s social and occupational functioning (e.g., no friends, unable to keep a job).  This assessment is consistent with the conclusion of the March 2006 examiner who noted the appellant’s seriously impaired social interactions.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996).  Subsequent contemporaneous clinical records support the conclusion that the appellant’s service-connected psychiatric symptoms produce severe impairment in his ability to maintain effective or favorable relationships.  
Neither the lay nor clinical evidence of record, however, supports the conclusion that the appellant is totally socially impaired.  Over the period on appeal, he has exhibited the ability to maintain at least a few relationships with friends and family members.  The appellant was married for the majority of the period on appeal.  In November 1996 and March 2004, the appellant stated that he had a good relationship with and was close to his children.  In June 1998, it was noted that the appellant had been married to his wife for 25 years and he stated that they had a good relationship.  In March 2006, he reported that they had separated.  During a March 2006 VA examination, he noted that he was not close to his children although retained a few friends.  In March 2004, he again reported that he had some friends.  In addition, although the appellant endorsed episodic auditory hallucinations during the period on appeal, he has not been shown to exhibit psychoneurotic symptoms bordering on gross repudiation of reality.  
Although the record shows that the appellant’s service-connected psychiatric disability does not produce virtual isolation in the community or totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, the Board finds that the record in in equipoise as to whether the appellant was demonstrably unable to obtain or retain employment as a result of his service-connected major depression during the period at issue in this appeal.  
The appellant has not worked since 1992 or 1993.  He has been in receipt of disability benefits from the Social Security Administration as a result of his psychiatric symptomatology since that time.  Although SSA disability determinations are not binding on VA, they constitute probative evidence concerning questions pertinent to VA’s adjudication of the claim.  See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992).   Here, the SSA determination and the medical evidence upon which it is based are consistent with a finding that the appellant is totally disabled due to his mental health symptoms.
The VA examinations conducted during the period on appeal also reflect that the examiners concluded that the appellant’s psychiatric symptoms were significant.  Although the examiners did not specifically address the question of the appellant’s ability to obtain employment, the examiners consistently noted that the appellant was unemployed and in receipt of disability benefits due to psychiatric symptoms.  In addition, based on the GAF Scores assigned during the VA examinations during the period on appeal, it is clear that the examiners considered the appellant’s psychiatric symptoms to be seriously disabling, of the type which would render him unable to keep a job.  See Richard v. Brown, 9 Vet. App. 266, 267 (1996).  
In addition to this evidence, the appellant’s attorney has procured medical opinions from Dr. Cesta who has indicated that it is his conclusion that the appellant was “clearly unemployable” during the period at issue in this appeal.  
Applying the criteria set forth above to the facts in this case, and affording the appellant the benefit of the doubt, the Board finds that his service-connected acquired psychiatric disability has been productive of symptomatology which more nearly approximates the criteria for 100 percent disability during the period from July 1, 1996, to September 5, 2009, under the rating criteria in effect prior to November 7, 1996.  
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Although not all the criteria for a 100 percent schedular rating under the former rating criteria have been met, the Court has held each criterion discussed above provides an independent basis for granting a 100 percent rating, including a demonstrable inability to obtain or retain employment.  See Johnson v. Brown, 7 Vet. App. 95, 97 (1994); Richard, 9 Vet. App. at 268.  Accordingly, a 100 percent schedular rating is assigned for the period from July 1, 1996, to September 5, 2009.
In light of this decision, the Board finds that the issue of entitlement to TDIU due to major depressive disorder for the period from July 1, 1996, to September 5, 2009, is moot.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).  In this case, the evidence does not show, nor does the appellant contend, that his only other service-connected disability individually forms the sole basis for an award of TDIU.  Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008).
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Behlen, Associate Counsel