Citation Nr: 20005646 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 18-34 824 DATE: January 23, 2020 ORDER An effective date earlier than January 19, 2011, for the grant of service connection of major depressive disorder is denied. An initial rating higher than 70 percent for the service-connected acquired psychiatric disorder is denied. A total disability rating due to individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In a November 2008 rating decision, the RO denied the service connection claim for an acquired psychiatric disability. The Veteran did not appeal the decision within one year of its issuance and new and material evidence was not received within that year. 2. On January 19, 2011, VA received the Veteran’s informal petition to reopen the service connection claim for acquired psychiatric disability. 3. In an August 2017 Board decision, and implementing August 2017 rating decision, the RO granted service connection for an acquired psychiatric disability, which was assigned effective January 19, 2011. 4. There is no evidence of any unadjudicated formal or informal claim for service connection for an acquired psychiatric disability after the issuance of the November 2008 rating decision and prior to January 19, 2011. 5. At no time during the appellate period did the psychiatric symptoms of service-connected major depressive disorder more nearly approximate total social impairment. 6. With resolution of any doubt in his favor, the Veteran’s service-connected disabilities have precluded him from securing and maintaining substantially gainful employment for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 19, 2011, for the grant of service connection for an acquired psychiatric disability are not met. 38 U.S.C. §§ 5110(a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156, 3.400, 20.302, 20.1103. 2. The criteria for a rating higher than 70 percent for the service-connected acquired psychiatric disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9434. 3. For the entire period on appeal, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to December 1974. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran waived a hearing before the Board in his June 2018 substantive appeal, via a VA Form 9. As will be discussed in further detail below, the Veteran and the record raises the issue of unemployability due to the Veteran's service-connected psychiatric disabilities. See 38 C.F.R. §§ 3.340 , 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. An effective date earlier than January 19, 2011 for the grant of service connection of major depressive disorder is denied. The effective date for an award of disability compensation based on an original grant of service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Before March 24, 2015, the terms “claim” and “application” meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). A claim is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Prior to a regulation change effective March 24, 2015, upon receipt of an informal claim, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). Prior to March 24, 2015, there was no set form that an informal written claim must take. All that was required is that the communication indicated an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). In this case, the current effective date for the award of service connection for MDD is January 19, 2011, the date of receipt of the Veteran’s informal application to reopen the claim of service connection for MDD. By way of procedural history, the Veteran’s initial service connection claim for an acquired psychiatric disability, specifically claimed as posttraumatic stress disorder, was denied in a November 2008 rating decision. The RO denied service connection for PTSD because he did not meet the criteria for a current PTSD diagnosis. The service connection claim for a psychiatric disability was also denied because there were no symptoms, diagnosis, or treatment of a psychiatric disability during service. The Veteran did not submit a timely notice of disagreement to the November 2008 rating decision and new and material evidence was not received within a year of the November 2008 notice of the rating decision. Thereafter in January 2011, the Veteran submitted an informal request to reopen the service connection claim for an acquired psychiatric disability, specifically claimed as major depressive disorder or however diagnosed. The RO initially reopened the claim but denied the service connection claim as there was no evidence of a nexus to service. The Veteran appealed this decision, and service connection was subsequently granted in an August 2017 Board decision, which was implemented by an August 2017 rating decision. Thus, to award an effective date earlier than January 19, 2011, for the grant of service connection in this case, the question is whether the Veteran submitted any communication or action, indicating an intention to apply for service connection for an acquired psychiatric disorder from the time period between the November 2008 rating decision and the January 19, 2011 informal petition to reopen. Importantly, the claims file shows during the applicable period, the evidence of record only includes a verification of income letter, correspondence and evidence related to an apportionment claim, and an inquiry to the Social Security Administration. After reviewing the evidence, both lay and medical, an effective date prior to January 19, 2011 for the grant of service connection for an acquired psychiatric disorder is not warranted. At the outset, the Board notes that the Veteran did not file a formal or informal claim for compensation within a year of separation from service. Moreover, the Veteran did not file a notice of disagreement to the November 2008 rating decision or submit new and material evidence within the one-year following the notice of rating decision. Therefore, the November 2008 denial became final. There is no evidence between the November 2008 final denial and the January 19, 2011 petition to reopen that can be construed as a formal or informal claim in order to award the Veteran an effective date earlier than January 19, 2011 for the grant of service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). See also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006); Rodriguez, 189 F.3d at 1354. As there is no unadjudicated formal or informal service connection claim for an acquired psychiatric disorder prior to the Veteran submitting the January 19, 2011 petition to reopen, VA is precluded under the applicable statutes and regulations from granting an effective date earlier than January 19, 2011. Given the finality of the November 2008 rating decision, the lack of any prior denial that had been appealed but not resolved, and the lack of any other exception to finality, the law is clear that the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (q), (r). Accordingly, January 19, 2011, is the proper effective date for the grant of service connection for an acquired psychiatric disorder. As a preponderance of the evidence is against entitlement to an effective date earlier than January 19, 2011 for this claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. An initial rating higher than 70 percent for the service-connected acquired psychiatric disability is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 70 percent rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is assigned 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The service-connected acquired psychiatric disability is currently assigned a 70 percent rating. The Veteran contends that a higher rating is warranted. Turning to the evidence, the Veteran was afforded a VA psychiatric examination in February 2011. The examiner, a psychologist, administered MacArthur Foundation/Prime-MD Patient Health Questionnaire, Depression Subscale (PHQ9) and diagnosed the Veteran with depression. At the time of this examination, the Veteran was the primary caretaker of his 15-year-old daughter, and they were getting along. He estimated he had five different children with five different mothers. However, he did not have long term relationships with significant others due to his attitude and mood swings. He estimated his romantic relationships lasted no longer than 2 months because he had difficulty controlling his temper. The Veteran spent most of his day cleaning his home and attending court ordered substance abuse group counseling. The Veteran’s last employment was a temporary job in a warehouse approximately 10 years earlier. He liked to work by himself because he did not like to be around other people. He felt scared, physically shook, and had difficulty talking during confrontations. These symptoms most recently occurred four months earlier. The Veteran had difficulty sleeping, only sleeping about three hours per night. He intermittently heard “noises in his ear” and humming, and he had itchy skin with scars from scratching so often. He experienced daytime fatigue and but was also unable to sleep during the day. The Veteran felt depressed. He had difficulty falling and staying asleep, difficulty concentrating, anhedonia, fatigue, low self-esteem, psychomotor retardation, and poor appetite. He denied suicidal ideations, plan, or intent in the past two weeks. He had nightmares. He was unable to be close to others. On examination, the examiner found the Veteran had adequate grooming and self-care; however, the Veteran reported there were times when he was so depressed, he did not maintain good grooming or hygiene. The Veteran was currently on probation for robbery, and the Veteran had an extensive alcohol and drug abuse history. The examiner did not see impairments in thought processes or communication. His eye contact was normal, and he interacted appropriately. He was oriented to person and place but not to the date, identifying the correct month but the incorrect day and year. His speech was slower than typical, but he seemed capable of logical, goal directed thoughts. He had memory deficits. The Veteran denied homicidal ideations, delusions, hallucinations, and other psychotic symptoms on examination but reported experiencing these symptoms intermittently, including seeing people killing themselves. He felt anxious and had strong panic symptoms when he was frightened or during conflict. Sudden movements and loud noises scared him. He also avoided certain people that he felt that might hurt him or that he did not trust. The Veteran submitted a January 2011 statement indicating, that since the assault in service, he was traumatized, afraid of people and unable to trust others. He was angry and violent. He also had nightmares and difficulty sleeping. He often thought other people were trying to kill him. He startled easily and was depressed, and these feelings led him to alcohol and heroin abuse. He also stated he was short tempered, had difficulty relaxing, and slept only two to three hours a night. He attributed a skin disorder to his abuse of drugs, alcohol, and sexual relationships. See also June 2013 statement. VA treatment records dad in March 2011 indicate that the Veteran was diagnosed with depression and was in full remission for alcohol, heroin, and cocaine use. The VA psychologist noted there was evidence the Veteran had a cognitive deficit, which was due to the in-service head injury, substance abuse, or both. The Veteran avoided people and had problems with authority. He was isolated. The Veteran voiced that he was hopeless and felt he was better off dead than alive. His daughter continued to live with him. VA treatment records indicate the Veteran was treated for depression and suicidal and homicidal ideations in September 2011. The Veteran was noted to be a poor historian, thought people were out to hurt him, and wanted to hurt others. He had been using cocaine for the previous few days. In a subsequent September 2011 VA treatment admission report, he reported his depression had been increasing and had led him to be violent with others. In October 2011, the Veteran reported to VA that he had primary physical custody of his daughter since 2007. Private treatment records dated in October 2011 note he had history of depression. On physical examination, he exhibited normal mood and affect. In August 2012, the Veteran reported that he was still fearful, mistrustful, isolated easily startled, avoided groups of people, and feared that he would be attacked by anyone who looked at him. He believed that people were out to get him. He had episodes of depression, panic attacks, anxiety, substance abuse, nightmares, difficulty with memory, and skin problems, to include feeling like bugs were crawling on his skin. An August 2012 VA treatment record indicated the Veteran had poor interpersonal skills with symptoms of depression and alcohol and drug abuse, which interfered with his judgement. He had signs of cognitive and affective deficits and TBI secondary to his in-service injury. He failed the MMSE relative to delayed recall, abstraction, and serial sevens. On mental status examination, the Veteran was alert and oriented to time, place, and person. He did not have sound judgment. The Veteran was not psychotic and was able to handle his own finances. The Veteran was assessed as low suicide risk. An Axis I diagnosis of depression was assessed. In March 2013, a VA mental health status examination found the Veteran was alert, oriented to time, place, person, and situation. He lived with his daughter, and they got along. The VA psychologist noted that his current TBI and depression was at least as likely as not related to the in-service assault. The Veteran experienced depression and a lack of skills. The Veteran was afforded an MMSE, which he failed. He did not know day of the week, month, or year. He failed to recall three items after a 10 second delay and failed abstraction from similarities. On the Beck Depression Inventory II, the Veteran’s depression symptoms scored in the severe range. The Veteran exhibited cognitive deficits. April 2013 VA treatment records note the Veteran had a diagnosis of depression and cognitive deficits. The Veteran was borderline intellectually challenged, did not understand how to appeal his service connection claim, and did not recall if he had been afforded a VA examination for his claim. There psychologist wrote that there was evidence of social and occupational impairments secondary to the in-service injury. The Veteran had poor interpersonal skills, and it was unlikely that he was competent to make another claim. On mental status examination, the Veteran was oriented and alert as to time, place, and person. He was unable to recall three items after delay with assistance, complete the serial sevens, and failed abstraction from similarities. He was unable to process new information or pass sound judgments regarding his appeal. He was not psychotic and was competent to handle his own finances. The risk of suicide or homicide was low. He was diagnosed with Axis I unspecified depressive disorder, severe cognitive deficit, and heroin, alcohol, and cocaine dependence in full remission. An Axis IV diagnosis was noted that his daughter lived with him. The Veteran was afforded cognitive behavioral therapy (CBT) at VA in May 2013. He had limited reading and writing skills. The Veteran was forgetful and would need assistance to make a service-connection claim. On mental status examination, the Veteran exhibited cognitive deficits. He was alert, oriented to time, place, person, and situation. The Veteran was not psychotic and was competent to handle his finances. He failed the MMSE but asserted he was dizzy. He was sober, free from substances, and was not a danger to himself or others. The VA psychologist rendered a diagnosis of TBI and unspecified depressive disorder. The Veteran was given the Beck Depression Inventory Second Edition in June 2013, which indicated severe depression. The Veteran was sad about his brother’s death. He was forgetful, and he did not know how to appeal his previously denied service connection claim. The therapist noted the Veteran was unable to deal with his anger. The Veteran was treated at VA in February 2014. He was upset because his daughter fought with him. The Veteran indicated that he may hurt her if she aggravated him and requested to speak to behavioral health. He was using cocaine, with a history of using three to four times per week. He denied having homicidal plans or access to guns, but reported he had a BB gun. He denied suicidal ideations. VA CBT records dated in October 2014 indicate the Veteran had symptoms of major depression, recurrent, with a history of alcohol dependency in partial remission. He indicated his 19-year-old daughter lived with him and helped him with his medications until recently, but she moved out after he expressed an intent to harm her. He was living in substandard conditions. He asked a relative to visit him and provide nursing reminders. He denied auditory hallucinations and psychotic intent to hurt himself or his daughter. A mental status examination showed that he was oriented to time, place, person, and event. He had minimal to poor eye contact, minimal to poor attention, lethargic motor activity, constricted, restricted, blunted, and flat affect with anxious, depressed, dysphoric, angry, and irritable mood. His speech and thoughts were tangential, concrete, slowed, disorganized, and guarded. His insight and judgment were poor and short-term memory was impaired. No hallucinations or delusions were noted. In November 2014, the Veteran was treated by VA with cognitive behavioral therapy for depression with social and vocational impairment. The BDI-2 resulted in a score of 29, which indicated severe depression. The Veteran had additional diagnoses of TBI and alcohol dependency due to the in-service assault. On mental status examination, he was oriented to time, place, person, and event. He was cooperative with intermittent fair eye contact, below average/fair attention, anxious and distractible, with constricted and restricted affect with anxious, depressed, sad or dysphoric mood. He had tangential, concrete, slowed, and disorganized speech and thoughts. His insight was below average, and his judgment was fair. He had short-term memory impairment. No hallucinations or delusions were evident. He was assessed as a low risk for suicide or homicide. The Veteran was afforded a VA TBI examination in January 2015. The examiner, a psychiatrist, determined the Veteran did not meet the criteria for a TBI diagnosis. The Veteran had a complicated medical history. Prior to the Veteran’s severe multiple medical problems, he did not have significant motor dysfunction. Therefore, the examiner determined that the motor dysfunction was not a result from the minor head trauma that occurred many years ago in service. The examiner also noted the Veteran had a history of major depressive disorders for many years. The Veteran reported difficulty trusting people and maintaining relationships due, which was attributed to low-grade paranoia. The Veteran did not have active psychotic symptoms. He exhibited cognitive impairment; however. the examiner did not believe this score was valid due to lack of effort. Nonetheless, the examiner determined potential causes for the lack of effort could be the Veteran’s depression, anhedonia, or embellishment of deficits. The Veteran’s ability to give short term and long-term histories were not consistent with the impairment found on objective testing. The Veteran was able to give striking detail when describing some areas of his life but seemed bewildered when describing others. The examiner indicated the cognitive issues could be the result of his multiple medical problems or history of IV drug use. The Veteran also had moderately severe impaired judgment. For even routine and familiar decisions, he was occasionally unable to identify, understand, weigh alternatives, understand the consequences of his choices, and make a reasonable decision. The Veteran lived alone, and a friend cooked and cleaned daily for him. She was at the Veteran’s house approximately 4 hours a day, including weekends. He was able to dress himself, brush his own teeth, and manage his own money; however, other people helped him pay his bills because he confused the due dates. He was able to calculate correct change when given a hypothetical problem. The Veteran was depressed and apathetic. He did not like to be around other people. The examiner indicated the Veteran’s social interactions were occasionally inappropriate. The Veteran was consistently disoriented to two or more orientation aspects. His motor activity was normal. In May 2015, the Veteran’s treating psychologist explained the most recent rating decision to him using simple vocabulary, but the Veteran was unable to repeat the explanation to indicate he understood. The psychologist had explained the rating decision to the Veteran several times, and the Veteran was simply unable to understand it. The Veteran was oriented time three. He was dressed casually with minimal to poor eye contact. His attention was below average and fair with a cooperative, guarded, and hostile attitude. He was anxious and distractible, anxious, depressed, dysphoric, angry, and irritable with constricted and restricted affect. His judgment and insight were poor. Speech and thoughts were tangential, concrete, slowed, and disorganized. Short term memory impairment was noted. A September 2015 VA treatment record shows that the Veteran had poor reading and interpersonal skills. He had no social support. The Veteran’s brother submitted a statement in September 2015. He noted the Veteran was forgetful and could not remember details. The Veteran’s mind was demented, he did not know how to express his emotions without becoming confused, and he believed things that were not “based in reality.” For instance, a prior VA record report that the Veteran had been in jail for 15 year. The Veteran’s brother clarified that the Veteran had only been in jail once on a misdemeanor charge. The Veteran also reported being in so many fights that he could not remember them; however, his brother indicated that his brother may have been in a few fights, but not in the frequency reported and not of the severity that would cause a head injury. The Veteran had difficulty talking to others, and he felt nervous and confused about events in his life. The Veteran’s brother described the Veteran as having “lost all sense of direction” and being “in a state if paranoia.” In November 2015, the Veteran was treated with CBT. The depressive disorder continued to be severe and cognitive deficits were noted. He was oriented times four, but had poor memory, poor concentration, and poor problem solving. On mental status examination, the Veteran appeared disheveled with a guarded and hostile attitude. He had minimal to poor attention and was lethargic. He was anxious, depressed, dysphoric, and irritable with constricted and restricted affect. His speech and thoughts were rambling, tangential, concrete, slowed, and guarded. His judgment was poor with short-term memory impairment. No hallucinations or delusions were noted. See also September 2015 VA treatment records. May 2017 treatment records show that the Veteran was depressed and was experiencing dysphoria, decreased energy, and mild memory and concentration impairments. He denied suicidal and homicidal ideations or intent, and he denied auditory and visual hallucinations. He was having difficulty sleeping. The Veteran denied past assaultive behavior. The Veteran had a fair mood with congruent affect. He denied suicidal or homicidal ideations or intent and denied auditory or visual hallucinations. The Veteran was alert and oriented times three. His thought processes were clear, coherent, and thought directed. Cognition appeared to be grossly intact, motor behavior normal, and appearance unremarkable with normal grooming and hygiene. Judgement and insight were intact. In June 2017, the Veteran was afforded a VA neuropsychological evaluation. The Veteran had never married and lived alone. He had four adult children and four grandchildren. He reported that he would enter a room and forget why he was there. He forgot days, medications, and appointments. He often lost his glasses and wallet. He was paranoid and occasionally awoke from sleep confused and frightened. He managed his own bills. The Veteran was appropriately dressed, exhibiting adequate hygiene and grooming. He was alert. His speech was spontaneous and goal directed. He appeared to be an adequate historian, but he was vague on details. He maintained adequate eye contact without abnormal psychomotor behaviors. There was no objective evidence on examination of a thought disorder, psychotic symptoms, hallucinations, delusions, or paranoia. He processed information very slowly and took long delays to respond. His BBD2 score showed severe depression. He admitted passive suicidal ideations but denied intent. Results from the neuropsychological testing showed the Veteran demonstrated scores in the extremely low range overall. Attention skills were borderline. A dementia evaluation fell in the severely impaired range with the lowest sub scores on construction and memory. The psychologist found the Veteran had major neurocognitive disorder due to multiple etiologies given his complex medical and psychosocial history. Depression was one factor that potentially impacted his cognition. The psychologist noted the Veteran would benefit from oversight in most areas of daily functioning, including medications management, and if his family was unable to provide supervision, that it would be appropriate for the Veteran to live in a supervised setting where assistance would be provided. See July 2017 evaluation report. August 2017 to October 2018 VA treatment records report generally the Veteran’s mood ranged from fair to stable. He was alert and oriented with adequate sleep, fair appetite, and fair energy and concentration. He denied psychosis, auditory and visual hallucinations, suicidal and homicidal ideations, plan, or intent. His thought processes were clear, coherent, and goal-directed. Judgement, insight, motor behavior, and cognition appeared to be grossly intact. Speech was spontaneous, coherent, and appropriate. In April 2018, the Veteran was afforded a VA-contracted psychiatric examination. The examiner, a psychologist, diagnosed the Veteran with moderate major depressive disorder and alcohol, cocaine, and opiate use disorder, in remission. The examiner indicated that the symptoms of each psychological disability could be differentiated. Specifically, all symptoms and occupational impairment were due to the major depressive disorder because the Veteran’s substance abuse was in remission. The examiner indicated the MDD caused occupational and social impairment with reduced reliability and productivity. The Veteran lived with his daughter from 12 to 18 years old, and they had a good relationship. The Veteran indicated that he was arrested, convicted, and spent time in jail for many things such as assault, retail theft, and similar crimes. He had outstanding fines. Per the treatment records, he had been in and out of jail for the past 15 years and had a long history of physical altercations. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, short- and long-term memory impairment, disturbance of mood and motivation, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene. On mental status examination, the Veteran was alert and oriented to person, place, time, and situation. The Veteran was casually dressed and had good eye contact. His speech was clear and articulate with a regular rate, rhythm, and tone. He was anxious, with appropriate affect. His thought process was logical, linear and goal-directed. He did not express paranoia or delusional thinking. No psychomotor agitation or retardation was seen. The Veteran denied suicidal and homicidal ideations, plan, or intent. No perceptual disturbances were noted. The Veteran’s insight and judgment were poor. In November 2018, the Veteran submitted an affidavit in support of his claim. The Veteran said he was constantly nervous. He did not like to be around other people because he did not trust them. He was quick to anger, and it was common for him to lash out. He was unable to go places that had a line because it triggered his anxiety and anger. Over the years, he had been incarcerated at least 10 times due to physical altercations with others. He had thoughts of harming others at least twice per week, and kept to himself, as he had done for the previous 7 years. He felt hopeless. He left his home three days a week to go to doctor’s appointments or to the convenience store. He had no interest in the world around him and had difficulty with concentration and motivation. At least 5 days per week, he forgot what day it was, and at least once per month, he forgot about a medical appointment. The Veteran lacked motivation, was easily bored, and often did not finish tasks. He bathed and changed his clothes two to three days per week, but once per month, he did not change his clothes for a week. He had a low appetite and had lost 20 to 30 pounds in the previous 5 to 10 years. He also reported hearing voices at least once per day. He only slept 2 hours per night. As a result, he had daytime fatigue and took a 10 to 15-minute nap every day. The Veteran was afforded a VA psychiatric examination in February 2019. The examiner, a psychologist, noted the Veteran was diagnosed with major depressive disorder and substance abuse disorder, in remission. The examiner found that the Veteran’s symptoms manifested in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The Veteran had a very isolated lifestyle, in which he did not communicate with anyone other than medical personnel. He did not trust anyone. His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbance of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, to include work or a work like setting, suicidal ideations, and impaired impulse control, such as unprovoked irritability with periods of violence. He appeared depressed with restricted affect. He had low energy, was disinterested, and had difficulty concentrating. He occasionally heard someone calling his name; however, he also denied auditory and visual hallucinations. He denied suicidal or homicidal planning. The Veteran denied delusions but reported that people were hostile to him, and he slept with a knife. The Veteran’s responses on a PHQ-9 measured the depressive symptoms in the severe range. The Veteran had a history of substance abuse, which had been in remission for the previous two years due to his physical health. He also reported symptoms of decreased appetite, difficulty sleeping, and difficulty communicating with others. February 2019 private treatment records note the Veteran was treated for hypertension with sudden onset of shortness of breath. He refused treatment and psychiatric consultation was provided. It was noted the Veteran had lost 30 pounds in the previous year. The Veteran was noted to be oriented to person, place, and time. He was not psychotic, delusional, suicidal, homicidal, or hallucination. He had normal mental capacity to make decisions regarding his health care. He was sober and did not appear to be under the influence of drugs. February 2019 VA psychiatric treatment records note he continued to decline psychotherapy services. His psychiatric medication was increased to target the depression and anxiety. The Veteran exhibited stable mood with fair energy and concentration. His sleep was adequate and appetite fair. He denied psychosis, hopelessness, helplessness, and active suicidal or homicidal ideations, intent, or plan. There had been no significant change in his living situation. His coping skills were fair and his support system adequate. He denied auditory or visual hallucinations. He was alert and oriented times three. Thought processes were clear, coherent, and goal-directed and consistent with recent events. No evidence was found of perceptual phenomena or signs. Cognition, judgement, and insight were intact. Motor behavior was normal. The Veteran had normal grooming and hygiene. Speech and language were spontaneous, coherent, and appropriate. March 2019 VA gastrointestinal treatment records indicate the Veteran denied psychiatric issues. As an initial matter, the record also includes a diagnosis of cognitive disorder during the appeal period and the record shows the Veteran’s psychiatric symptoms major depressive disorder and cognitive disorder cannot be distinguished. Mittleider, 11 Vet. App. at 181. Consequently, the Board considered all the Veteran’s psychiatric symptoms in assigning a rating for the MDD. See Id. Upon review of the evidence of record, the Board finds that the Veteran’s service-connected psychiatric symptoms have not resulted in total occupational and social impairment. In terms of occupational impairment, the Board specifically considered the Veteran reports that he was fired from several jobs before 2004, and was unable to work, due to his service-connected MDD. In this regard, the Board has awarded a TDIU herein for the entire period on appeal due to his service-connected MDD, which is discussed below. Nonetheless, the Veteran has not displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; inability to remember his own name or occupation; or grossly inappropriate behavior. He has been continuously found capable of managing his own financial affairs and has continuously appeared oriented as to person, place, and situation. In addition, total occupational and social impairment generally requires symptoms severe enough to severely distort the individual’s perception of reality, which is not shown by the record. Overall, the Veteran’s psychiatric symptoms, while severe, do not equate in severity, frequency, or duration to total occupational and social impairment, nor has he demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. The Board points out that the most recent VA examiner in February 2019 concluded that the Veteran’s psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood, which is consistent with a 70 percent rating. All the other VA examinations of record report the Veteran’s occupational and social impairment to be less severe than the 70 percent rating assigned. Furthermore, while the Veteran exhibits a few of the symptoms that would warrant a 100 percent rating for total occupational impairment during the appellate period, the evidence does not more nearly approximate that the Veteran is totally socially impaired. The Board acknowledges that the Veteran isolated himself, but he also lived with his daughter and functioned as her primary caretaker during the appellate period until 2014. After 2014, he has reported having good relationships with his adult children and his grandchildren. He also had a caretaker who was a family friend in his home 4 hours a day for 7 days a week to help him with the cooking and cleaning without reported conflict. In summary, the weight of the evidence does not support the criteria for a rating higher than 70 percent, and as such, the claim must be denied. The preponderance of the evidence is against an initial increased rating for the psychiatric disorder, to include the MDD, and as such, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Finally, neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 69-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to TDIU is granted. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a veteran is entitled to a TDIU, neither his or her nonservice-connected disabilities nor age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. For the entire period on appeal, the Veteran was service connected for an acquired psychiatric disorder (rated as 70 percent disabling, effective January 19, 2011) and a head scar (rated as noncompensable, effective November 2003). Thus, he meets the schedular criteria for a TDIU if the evidence shows he is unable to secure or maintain substantially gainful employment due to the service-connected disabilities. Thus, the remaining question is whether the Veteran’s service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU because a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. There is no regulatory definition of “substantially gainful employment.” 38 C.F.R. § 4.16(a) provides guidance in that it states: “Marginal employment shall not be considered gainful employment.” It also says definitively that marginal employment exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). As an initial matter, the Veteran’s highest level of education is the 8th grade. See September 2018 TDIU application. His civilian employment history includes temporary jobs, including assembly lines, loading trucks, landscaping, and yardwork. See April 2018 VA examination and November 2018 affidavit. His most recent employment ended in February 2004 as a temporary worker at JFC staffing company making $7.50 per hour. See June 2019 employer verification and November 2018 affidavit. It has been noted throughout the claim that the Veteran has difficulty reading and writing, difficulty with short-term memory, cognitive impairments, and difficulty processing new information. See April 2013 and November 2015 VA treatment records. During service, his military occupational specialty was as a field artillery crewman. See DD Form 214. The Veteran’s symptoms of severe acquire psychiatric disability symptoms are discussed above and are incorporated herein. The Board finds that the Veteran’s head scar, rated as noncompensable, has no affect his ability to secure or follow substantially gainful employment. See December 2018 VA examination. The Veteran was afforded a February 2011 VA psychiatric examination. The Veteran dropped out of school in the 8th grade. He reported that he had difficulty controlling his anger and if he did not agree with something, he would “snap out.” He had similar difficulties in personal relationships because of his temper. He spent most of his days cleaning his home, and he went to dialysis three time per week. The Veteran last worked approximately 10 years preceding this examination as a temporary stock worker in a warehouse. He did not like to be around people. He had difficulty sleeping and daytime fatigue. He was depressed and had trouble concentrating, fatigue, psychomotor retardation more than 50 percent of the previous two weeks, and poor appetite. He had memory deficits. Although he was oriented as to person and place, he was not oriented as to time. He had feelings of panic during confrontations. March 2011 VA treatment records indicated that the Veteran was diagnosed with depression and was in full remission for alcohol, heroin, and cocaine use. It was surmised that his incarceration and substance abuse history had interfered with his past employment, but the Veteran indicated he also avoided people and had problems with authority. He was isolated. His daughter was living with him full time. Additionally, in August 2011 and August 2012, the Veteran’s treating VA psychologist noted that based on his cognitive deficits and his major depressive disorder, there was evidence of social and vocational impairments. He exhibited poor interpersonal skills. The psychologist concluded the Veteran was unemployable. January 2012 VA treatment records indicate the Veteran was injured in service that had resulting in a possible TBI and unemployment. The VA psychologist noted the Veteran had cognitive and affective residuals that interfered with his employment and his ability to lead a normal life. He failed the MMSE related to delayed recall, abstraction, and serial sevens. The clinician noted there was evidence of social and vocational impairments secondary to the injury in service. The Veteran also had poor interpersonal skills, had never been married, and frequently moved. See also April 2013 VA treatment records. March 2013 VA psychiatric treatment records note that he was unable to obtain employment related to his depression. January 2015 VA treatment records indicate the Veteran had social and vocational impairments and he remained unemployable due to symptoms of dementia. A January 2015 VA TBI examination indicated the Veteran’s psychiatric disabilities resulted in severely impaired judgement, even with routine and familiar choices. Neuropsychological testing showed that he had profound cognitive impairments. On examination, he seemed distant and sleepy. The examiner found that the Veteran was disabled secondary to cardiac and renal pathology and required dialysis for renal failure. May 2015 VA treatment records indicate the Veteran was being treated for symptoms related to an in-service head injury with behavioral consequences that had handicapped his employment. The Veteran’s cognitive deficits limited his ability to understand the rating decisions from VA, even though his treating psychologist had explained it to him several times using simple vocabulary. November 2015 VA treatment records note the Veteran had been unemployed for some time. The psychologist attributed his unemployment to his poor memory, poor concentration, and problem-solving deficits. It was noted he could not read or write, and his brother assisted him with his claims. The Veteran had severe depression and had a long history of unemployment due to vocational and social impairments secondary to the assault in service. See also September 2015 VA treatment records. In November 2018, the Veteran submitted an affidavit. The Veteran reported that he believed he was unable to secure or maintain substantially gainful employment due to the service-connected psychiatric disabilities. His most recent employment was loading trucks at a Pepsi plant through a temporary agency for three months. He indicated that, after 2002, he was in and out of jail; however, he was able to secure several temporary warehouse positions similar to the position he had at the Pepsi plant through 2004. All temporary employment between 2002 and 2004 was working on an assembly line. He was only able to maintain 5 temporary jobs for one week each between 2002 and 2004 before being fired for poor performance, absences, or leaving early due to his MDD. All his work experience involved manual labor. He did not have office experience and could not read or write well. The Veteran was constantly nervous every day and did not like to be around other people because he did not trust them. His anxiety turned to anger, and he physically lashed out. He was unable to go anywhere that had a line as it triggered his anxiety and anger. The Veteran’s most recent confrontation was with a security guard who caught him shoplifting. In hindsight, he knew assaulting the security guard was wrong, but he was unable to control his anger. He reported thinking about hurting others at least twice per week and stayed at home to avoid doing so. He had used this coping strategy for the last 7 years. He felt hopeless every day, despite medication, and felt as if there was no reason to get out of bed. Typically, he only left his home three days a week for doctor’s appointments, dialysis for non-service connected kidney disease, and to go to the convenience store. The rest of the week he sat on the couch and only got up to use the restroom. He no longer had interest in the world around him, had difficulty concentrating, and had low motivation. He had difficulty remembering what day it was, and he forgot his doctor’s appointments at least once per month. His mind often wandered, and he had difficulty completing tasks. His lack of motivation was debilitating. He often did not shower. On average he bathed two to three times per week, but one week a month, he wore the same clothing for an entire week. He has difficulty eating due to the severe depression. He had lost 30 pounds in the last five to ten years. He reported that he heard voices at least once per day and has difficulty sleeping. He reported was only able to sleep for 2 hours per night and took 10 to 15-minute naps during the day. He had recurring nightmares. The Veteran was afforded a February 2019 VA psychiatric examination. The examiner, a psychologist, found that the Veteran’s lack of energy and motivation, depressed mood, decreased appetite, sleep difficulties, difficulty concentrating coupled with his suspiciousness, sense of being targeted, and his other mental health symptoms would interfere with his ability to maintain gainful employment and interact with coworkers. Based on the evidence of record, both lay and medical, and resolving any doubt in the Veteran’s favor, the Board concludes that a TDIU is warranted for the entire period on appeal because the evidence is at least in equipoise that the Veteran’s service-connected psychiatric disabilities precludes all forms of employment. While the January 2015 VA examiner found that the Veteran was disabled primarily due to non service-connected physical disabilities, the February 2019 VA examiner concluded the Veteran was unable to secure or maintain substantially gainful employment solely due to the service-connected psychiatric symptoms. Although the Board acknowledges the Veteran has significant physical disabilities, when evaluating the entirety of the Veteran’s service-connected disability picture, the evidence of record is at least in equipoise that, even if he did not have physical disabilities, his service-connected psychiatric disability alone would render him unable to maintain substantially gainful employment. On this basis, the criteria to establish entitlement to a TDIU are met for the entire period on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.