Citation Nr: 20037564 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 19-10 341 DATE: June 2, 2020 ORDER Entitlement to a restoration of a 30 percent rating for post-operative, Osgood-Schlatter’s disease, left knee is granted. Entitlement to an initial rating in excess of 30 percent prior to July 6, 2015, for an acquired psychiatric disorder, is denied; however, beginning July 6, 2015 a 50 percent rating is granted, and a 70 percent rating is granted from June 27, 2019. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an increased rating in excess of 40 percent for lumbosacral strain is dismissed. Entitlement to an increased rating in excess of 40 percent for radiculopathy of the left lower extremity radiculopathy is dismissed. FINDINGS OF FACT 1. The Veteran’s 30 percent rating for service-connected post-operative, Osgood-Schlatter’s disease, left knee was in effect for less than 5 years at the time of the rating reduction, and the evidence does not establish observable improvement in the disability sufficient to warrant reduction. 2. Prior to July 6, 2015, the Veteran’s major depressive disorder symptomatology was reflective of occupational and social impairment with occasional decrease in work efficiency. 3. Between July 6, 2015 and June 26, 2019, the Veteran’s major depressive disorder symptomatology was reflective of occupational and social impairment with reduced reliability and productivity. 4. Since June 27, 2019, the Veteran’s major depressive disorder symptomatology was reflective of occupational and social impairment deficiencies in most areas such as work, school and family relations. 5. The Veteran’s service-connected disabilities preclude substantially gainful employment. 6. In October 2019, prior to the promulgation of a decision in this appeal, the Veteran testified at a travel Board hearing before the undersigned Veteran’s Law Judge and a transcript of that hearing is of record. During the hearing the Veteran, represented by his attorney, withdrew the increased rating claims for lumbosacral strain and radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a reduction in a disability rating for post-operative, Osgood-Schlatter’s disease, left knee have not been met as of June 1, 2014. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.115(b), Diagnostic Code 5260. 2. Prior to July 6, 2015, the criteria for a disability rating in excess of 30 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. From July 6, 2015 to June 26, 2019, the criteria for a disability rating of 50 percent for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 4. Since June 27, 2019, the criteria for a disability rating of 70 percent for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 6. The criteria for dismissal of the claim for increased rating in excess of 40 percent for lumbosacral strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 7. The criteria for dismissal of the claim for increased rating in excess of 40 percent for left lower extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Air Force on active duty from February 1968 to November 1971. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Rating Reduction for Left Knee Disability A rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. For ratings that have been in effect for five years or more, reduction is warranted only when reexamination discloses sustained and material improvement that will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)-(b). Examinations thus usually are the comparison point for determining whether there has been improvement. Those examinations forming the basis for a reduction must be adequate, certainly as comprehensive as the examination on which the existing rating was based. Furthermore, VA must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)-(b). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level for five years or more and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating, where the disability rating has continued at the same level for less than five years. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c), and applicable to the current issue on appeal, as the Veteran’s 30 percent disability rating for his left knee was in effect from February 2010 to June 2014, a period of less than five years. When reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at the latest address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated; although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. The Veteran challenges the reduction of the evaluation rating for his left knee disability, from 30 percent disabling to 10 percent disabling. A November 2012 rating decision proposed reducing the Veteran’s evaluation for post-operative, Osgood-Schlatter’s disease of the left knee from 30 percent to 10 percent. A corresponding VA letter informed the Veteran of the reasons and bases for the proposed reduction and the type of information or evidence he could submit in response. He was also informed of his rights to a personal hearing and representation and that unless additional evidence was received within 60 days, his left knee evaluation would be reduced. A February 2014 rating decision reduced the Veteran’s left knee evaluation from 30 percent to 10 percent, effective June 1, 2014. In January 2015 the Veteran submitted a notification of disagreement, challenging the reduction. Therefore, the Board finds that the RO complied with the additional notification requirements set forth in 38 C.F.R. § 3.105(e). The Veteran seeks restoration of the 30 percent rating for left knee disability that had been assigned prior to June 1, 2014. Reexaminations disclosing improvement, physical or mental, in service-connected disabilities will warrant a reduction in rating where the disability rating has continued at the same level for less than five years. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, as is the case here, the analysis is conducted under 38 C.F.R. § 3.344(c). Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413 (1993); see also 38 C.F.R. §§ 4.2, 4.10. A claim as to whether a rating reduction was proper must be resolved in the Veteran’s favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran’s proposed reduction of his left knee disability was based on the June 2010 VA knee examination. In this case, the RO did not allege an improvement in the Veteran’s left knee disability. Instead, the RO asserted that there was clear and unmistakable error (CUE) in the September 2010 rating decision awarding an increased evaluation of 30 percent, as this decision was based on an error noting the Veteran’s painful ROM instead of actual ROM from a June 2010 VA examination. The RO noted the June 2010 VA examination reflected painful motion at 20 degrees, but that flexion was to 125 degrees with normal extension. Additionally, the examiner noted a subsequent July 2012 VA knee examination showed flexion to 105 degrees and normal extension. The RO then determined that, based on the correct evidence, a 10 percent evaluation was warranted for the Veteran’s left knee disability. The June 2010 VA knee examination reflects flexion to 125 degrees and normal extension. Painful motion began at 20 degrees. The VA examiner noted there was no evidence of instability, weakness, swelling, locking, lack of endurance, fatigability, dislocation, or recurrent subluxation. X-rays showed a healed fracture of the tibia and fibula which did not require use of a brace. Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. A noncompensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.6. An August 2010 VA joint examination showed no change in ROM findings from the June 2010 VA examination. The June 2012 VA knee examination reflects a ROM of flexion to 105 degrees and normal extension. The VA examiner noted there was no evidence of instability, swelling, locking, dislocation, or recurrent subluxation. The Veteran did not have evidence of tibia stress syndrome or meniscal issues. The question before the Board is whether the Veteran’s left knee ROM had demonstrated improvement at the time of the rating reduction. On review of all applicable evidence, the Board finds that permanent improvement in the left knee ROM was not shown to have occurred at the time of the February 2014 rating decision reducing the Veteran’s left knee rating to 10 percent. In fact, the June 2012 VA knee examination reflects that Veteran’s left knee flexion decreased by 20 degrees from the date of the June 2010 VA knee examination. The RO alleges the Veteran’s reduction in rating of the left knee was warranted due to CUE. Previous determinations which are final and binding, including decisions of degree of disability, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. For the purposes of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). For CUE to exist, (1) either the correct facts as they were known at that time were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). Errors constituting CUE are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. In the instant case, a September 2010 rating decision awarded an increase of 30 percent evaluation for the Veteran’s left knee disability based on the reporting of a painful motion limited flexion to 20 degrees in a June 2010 VA knee examination. The RO proposed a reduction of the Veteran’s left knee rating evaluation from 30 percent to 10 percent in a November 2012 rating decision. A February 2014 rating decision reduced the Veteran’s left knee disability evaluation from 30 to 10 percent, citing CUE due to the erroneous characterization of ROM test results. The February 2014 rating decision asserts the Veteran’s left knee ROM testing was originally reported to reflect limitation of flexion to 20 degrees but in actuality the June 2010 VA examination notes flexion was limited to 125 degrees, with pain beginning at 20 degrees. Although the RO asserts it mischaracterized the Veteran’s ROM testing results, it is still clear that the correct facts as they were known at the time were before the adjudicator at the time of its decision. As noted above, reductions require the rating agency assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or use of descriptive terms. Here, the June 2010 and June 2012 VA knee examinations were part of the evidence considered by the RO, made available to the RO for review and the contents of each examination were weighed and evaluated. Disagreements about how evidence is evaluated and weighed does not, in itself, constitute CUE. Clear and unmistak¬able error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts. See Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). See also Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Additionally, the evidence before the RO at the time of reduction showed the Veteran’s left knee ROM had decreased by 20 degrees and no improvement was shown. The law is clear that a rating reduction cannot stand in the absence of proof that the disability has undergone improvement. In the present matter, the RO merely initiated the reduction procedures in an attempt to correct factual errors it made in weighing the evidence at the time of the September 2010 rating decision. The law governing rating reductions does not allow reductions to be implemented as a mechanism for correcting RO error in assessing medical reports. Based on the foregoing analysis, the Board finds the reduction of the assigned rating for the Veteran’s service-connected post-operative, Osgood-Schlatter’s disease of the left knee from 30 to 10 percent effective June 1, 2014, was not proper. Therefore, the 30 percent rating will be restored, and the Veteran’s appeal is granted. 2. Increased Initial Rating for Major Depressive Disorder The Veteran is service connected for major depressive disorder (MDD) and is currently evaluated at 30 percent and rated under Diagnostic Code 9434 which applies the General Rating Formula for Mental Disorders. Under the applicable diagnostic criteria, a 30 percent rating is granted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-V. Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130. However, the provision of this final rule does not apply to claims that were certified to the Board on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. As this appeal was certified to the Board after August 4, 2014, the use of GAF scores will not be discussed. Prior to July 6, 2015 In July 2012 the Veteran reported feeling depressed concerning his physical disabilities. He reported trouble falling asleep due to pain in his back. He reported no suicidal or homicidal ideation. The Veteran received an initial VA mental health examination in September 2013 and was diagnosed with mild MDD and no other conditions. The VA examiner noted the Veteran’s symptomatology most closely reflected occupational and social impairment due to mild or transient symptoms. The examiner noted symptoms of depressed mood and chronic sleep impairment. However, regarding the Veteran’s sleep impairment, the examiner noted the Veteran reported difficulty falling and staying asleep due to back pain. “My back pain prevents me from sleeping. Then when I fall asleep the vertebra pain wakes me up again.” The Veteran reported feeling depressed every day and having a loss of interest in most things. He also reported having a terrible appetite and not eating sometimes for days. “Just not hungry. Just don’t feel like it.” The Veteran denied any memory or concentration problems. He was oriented to person, place and time and his memory and speech were within normal limits. His thought processes were observed to be normal and with thought content focused heavily on his back pain how his medical providers had not been of assistance to him. He stated he was not currently on any medications. The examiner noted the Veteran’s affect was appropriate, and he was observed to be casually and appropriately dressed. The examiner further noted the Veteran reported no suicidal or homicidal ideation, panic attacks, delusions, hallucinations, and did not appear to be impulsive. The examiner documented that the Veteran’s behavior was not inappropriate, and he did not experience episodes of violence. The Veteran reported he was not working and living alone. He stated he was able to perform activities of daily living and community activities independently. He reported being presently enrolled in a technical college four days a week. He reported that most of the friends with whom he participated in hobbies are now deceased. He also stated that although many of his friends are deceased, he has acquaintances and they may help each other out, but says they are not “close.” During this period on appeal, the Veteran’s VA treatment records show he complained of depression, sleep impairment and a loss of appetite, but denied any panic attacks, suicidal or homicidal ideation, hallucinations, delusions as well as any memory or loss of concentration. Similarly, no evidence of circumlocutory or stereotyped speech, impaired judgement, or impaired abstract thinking were noted in the medical evidence for this period on appeal. Overall, during this period on appeal, the Veteran’s symptoms are of a similar severity, duration, type, and frequency as those associated with a 30 percent rating, and no higher. Thus, the criteria for a finding of a 50 percent evaluation or higher are not met during this period, and the benefit-of-the-doubt doctrine does not apply. From July 6, 2015 to June 26, 2019 The Veteran received a VA mental health examination in July 2015 and the VA examiner diagnosed him with recurrent MDD and somatic symptom disorder with predominant pain. The VA examiner opined that the Veteran’s symptomatology more closely reflected occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms were noted as depressed mood, chronic sleep impairment, and disturbance of mood and motivation. The VA examiner characterized the Veteran’s mood as dysphoric and his affect, constricted. The Veteran was described as goal oriented and he denied paranoia. The Veteran also denied hallucinations or delusions. He denied suicidal or homicidal ideation as well as denying any history of violence. His memory was described as intact and his appearance as “somewhat disheveled.” The examiner noted the Veteran smelled of alcohol and cigarettes and that he appeared older than his reported biological age. The prior 2013 VA mental health examination indicated the Veteran had several prior DUIs in his history between the years 1972 and 1989. The Veteran reported he does not drink currently. He reported having “acquaintances” that he “sees” and that he might have contact with his neighbors but prefers not to talk to anyone due to his depression. He reported he has been more withdrawn from others for the past 4 to 5 years. He stated his last romantic relationship was approximately 6 months prior and it lasted for 3 months. This was the only romantic relationship he has had since his marriage ended. He reported that he spends most of his day watching television and due to his physical disabilities was not able to exercise regularly. He further stated he was no longer attending college due to his physical disabilities. He explained that he was currently renting the upstairs of a man’s home and living alone. He stated that he last worked in 2012 and since that time has been retired. From 2016 to 2017 VA treatment records note the Veteran reported experiencing near continuous depression as well as sleep impairment. VA treatment records are silent for any reports of suicidal ideation or panic attacks Accordingly, from July 6, 2015, to June 26, 2019, the medical evidence shows an increased rating of 50 percent for the Veteran’s MDD and somatic disorder is warranted due to disturbances of mood and motivation and occupational and social impairment with reduced reliability and productivity. As the July 2015 VA examination shows, the Veteran does not demonstrate all of the listed symptoms provided under the 50 percent evaluation rating such as circumstantial, circumlocutory or stereotyped speech, panic attacks, difficulty in understanding complex commands, memory impairment, impaired judgement, and/or impaired abstract thinking, the provided symptoms are not to be treated as a checklist when determining what rating is appropriate. Mauerhan, 16 Vet. App. at 442. The Board also recognizes that the record in this case indicates the Veteran appeared to look older than his purported age and reported to his July 2015 examination smelling of alcohol. Although the criteria do not specifically include these observations as symptoms, the Board is reminded that the provided symptoms within the criteria are not to be treated as a checklist when determining what rating is appropriate. Id. Instead, the Board notes that the criteria for a 50 percent rating includes “impaired judgement.” Therefore, considering the Veteran’s symptomatology as a whole, an increased rating of 50 percent more nearly approximated the Veteran’s symptomatology. A rating higher than 50 percent is not warranted, as there is no evidence of suicidal or homicidal ideation, near continuous panic or depression affecting the ability to function independently, obsessive rituals, impaired impulse control, illogical, obscure or irrelevant speech, inappropriate behavior, memory deficiencies or disorientation to time or place. The Veteran denied a history of hallucinations or delusions. The July 2015 VA examiner observed the Veteran to exhibit logical thought, have coherent and fluent speech, and fair to good insight and judgment. The Veteran reported he was unaware of any issues with concentration or memory. The examiner observed the Veteran to be “somewhat disheveled;” however, the Veteran reported that his difficulty effectuating hygiene chores was due to pain and not depression or mood. The examiner documented initially smelling alcohol on the Veteran’s person and noted the Veteran’s actual status regarding alcohol use was unclear given the disparities in self-reporting and documentation from prior medical records. Prior medical records indicate the Veteran had four DUIs, the last in 1989, but medical records also reflect the Veteran’s reports that he began drinking twice a week between the years 2004 and 2012 to help with sleep. During the July 2015 VA examination, the Veteran reported that he did not currently drink and last drank ten years ago. As a result of the disparities, the examiner refrained from diagnosing an alcohol use disorder and no alcohol use has been associated with the Veteran’s depression. Throughout the period from July 6, 2015 to June 26, 2019 the Veteran’s VA treatment records show no evidence of symptomatology of a similar severity, frequency, type, or duration as those associated with a 70 percent rating. Therefore, the Board finds that from July 6, 2015 to June 26, 2019 the Veteran is entitled to an increased rating of 50 percent, but no higher. From June 27, 2019 The Veteran’s most recent VA mental health examination was in June 2019 and the VA examiner characterized his symptomatology as occupational and social impairment with deficiencies in most areas. The Veteran’s symptoms were reported as depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty, in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, and neglect of personal hygiene and personal appearance. At the time of the June 2019 VA examination, the Veteran reported that he has six siblings and that although they are all on friendly terms, he does not interact with them regularly. He has no children and is not currently involved romantically with anyone. He reports that most of his friends are deceased but that he sometimes engages in small talk with his neighbors. He also reports his next-door neighbor goes food shopping for him, to include obtaining soups and microwavable foods. He stated he does not like going to the grocery store due to the crowds. The Veteran reported that he typically passes out from exhaustion during the day because he does not get much sleep at night. The Veteran was observed to repeatedly yawn during the interview. The examiner noted negative alcohol screenings in 2016 and 2017 and the Veteran further denied any use of alcohol. He reported being irritable, disliking people or being around them. The examiner noted he is likely to complain of memory and concentration problems. The examiner noted a loss in appetite, loss of energy, and loss of interest in most things. The examiner observed the Veteran to have a flattened affect, depressed mood, dirty clothes, appeared unshaven, and exhibited poor hygiene. The examiner also noted the Veteran reported significant emotional distress, noting he is “likely pessimistic, socially introverted, socially disengaged, lacks energy and displays vegetative symptoms of depression.” The Veteran denied hallucinations, delusions, obsessions and compulsions, and suicidal and/or homicidal ideation. His speech, thought processes, and thought content were normal. He did not report panic attacks and his memory, abstract reasoning, attention and concentration were noted to all be within normal limits. The examiner observed that the Veteran was oriented to person, place, and time and that he showed no evidence of inappropriate or impulsive behavior. His judgment was normal, and his insight was adequate. The Veteran testified regarding his psychiatric condition at a travel Board hearing before the undersigned in October 2019. The Veteran reported that he was often irritable and experienced issues with his memory, such as forgetting items he was supposed to retrieve from the grocery store. He testified that he has thoughts of suicide but failed to reveal this symptom to his doctors due to embarrassment. He also testified that he experienced panic attacks one to two times a month, forgets to complete tasks, has trouble concentrating and understanding complex directions. He testified that he hallucinates regarding taste and explained that sometimes food such as ham or eggs do not taste how he knows them to taste. He further testified that he went to a shopping mall and “didn’t recognize anything, and I’ve been there many times before.” He stated, “I just kind of went blank” and “it took me a while to focus back.” He testified that this has happened more than once. The Veteran also testified that he had trouble sleeping due to nightmares and “night terrors” and that he is afraid to go to sleep because after having them he wakes up in a panic. He testified that he never answers his door or lets anyone in his home and that he only showers every three weeks due to pain. He testified that he uses a cane and is concerned about falling in the bathtub. He further testified that his neighbor brings him food and that if he needs something special, she comes over to help. He testified that his landlord takes out the trash, gets the mail and does his laundry. The evidence of record supports an increased rating of 70 percent for the Veteran’s MDD and somatic disorder due to neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, suicidal ideation and an inability to establish and maintain effective relationships. The Board has reviewed the medical and lay evidence, but at no point has the Veteran been found to have total occupational and total social impairment. Although the Veteran does not like going to the grocery store, does not interact regularly with his siblings, and testified he does not let people in his home, he also reports he engages in small talk with his neighbors, particularly his next-door neighbor who retrieves groceries on his behalf and comes over to help him occasionally. The June 2019 VA examiner has noted the Veteran is likely to be socially introverted and socially disengaged. The Veteran has noted his ability to engage with his neighbors on a limited basis which does not speak to total social impairment. However, even if the Board were to find total social impairment, the Veteran’s symptomatology must reflect both total social and occupational impairment to warrant a total rating. However, the evidence of record does not show that the Veteran’s symptoms closely align with a rating of 100 percent at any point during the appeal period. The Board acknowledges the Veteran’s October 2019 hearing testimony that food, such as ham and eggs, do not taste to like themselves. However, the Veteran’s testimony, nor his attorney’s characterization of this event as a hallucination of taste, are medical evidence. While the Veteran is competent to observe his sense of taste or lack thereof, he, nor his attorney possess the required medical training, skills or knowledge to opine as to the whether this event is a “hallucination” for medical purposes. Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Additionally, the evidence does not show that the Veteran’s symptoms have led to a gross impairment in his thought processes or communication or that the Veteran has displayed grossly inappropriate behavior at any point during the appeal period. The Veteran has never shown a persistent danger of hurting himself or others. He testified at the October 2019 hearing and reported he has suicidal thoughts, but the lay and medical evidence of record do not indicate that the Veteran is in persistent danger of hurting herself or others. The Veteran testified that this is the first time he has reported suicidal ideation due to prior embarrassment. Suicidal ideation is contemplated by the 70 percent rating criteria; and as the Veteran’s suicidal ideation does not rise to the level of persistent danger of hurting oneself or others, a 100 percent rating is not appropriate based on this symptom. The Veteran has testified that he experiences disorientation as to time or place. He testified that on more than one occasion he went to a shopping mall and failed to recognize his surroundings. This one symptom exhibited by the Veteran, is reflected under the 100 percent schedular criteria, however the Veteran’s symptoms do not more closely approximate a 100 percent evaluation. The Veteran has also not shown memory loss for names of close relatives or his own name. Rather, the Veteran’s acquired psychiatric symptoms most closely approximate a 70 percent evaluation during this period on appeal. As such, the preponderance of the evidence does not warrant a rating of 100 percent for the Veteran’s MDD and somatic disorder for any period on appeal. Therefore, the Board finds that prior to July 6, 2015, a rating in excess of 30 percent is denied. However, from July 6, 2015 to June 26, 2019 a 50 percent rating, but no higher, is awarded and a 70 percent rating, but no higher, is granted for the period beginning June 27, 2019. 3. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). The Veteran meets the schedular threshold for a TDIU and the Board must evaluate whether he, apart from any non-service-connected disability and advancing age, is precluded from securing and following substantially gainful employment. The Veteran submitted his applications for TDIU in May 2015 and in May 2019. According to the applications, the Veteran last worked in 2008 as clerk in a gas station. Prior to that he last worked as a postal clerk in 1994. The Veteran is a high school graduate with some college studies but the Veteran reports he ended his studies to his service-connected disabilities. The Veteran had a VA mental health examination in July 2015 and the VA examiner opined, “There is no indication that the Veteran’s overall moderate psychiatric impairment alone renders him unable to engage in some kind of solitary/sedentary work where reasonable accommodations are made, such as flexible scheduling or frequent breaks which could help combat issues which chronic pain and task completion.” The Veteran also reported to the July 2015 VA psychiatrist that due to his chronic pain, he experienced difficulty engaging in the activities of daily life to include his daily hygiene chores. The examiner observed and noted the Veteran appeared “disheveled.” In a July 2015 VA knee examination, the VA examiner reported the Veteran should have no limitations working, “except for doing a job that required standing all day, constant kneeling and having to squat.” A June 2018 VA knee examination noted the Veteran would be able to engage in sedentary work. In June 2018 the Veteran had a VA examination for his lumbar spine and that VA examiner opined the Veteran “can no longer work due to back pain.” In a June 2019 VA mental health examination, the VA examiner determined the Veteran had difficulty with hygiene and was likely to have difficulty in maintaining the appropriate energy to work in most settings. The examiner observed the Veteran to have difficulty with hygiene as he presented with dirty clothes, was unshaven, and generally unkept. The Veteran had a low back examination with VA in June 2019 and the VA examiner opined the Veteran’s employability would be moderately affected by physical and/or sedentary activities. The examiner noted the Veteran would have trouble with prolonged sitting, standing, walking, running, jumping, bending, climbing, lifting, pushing, pulling and twisting. The remarks regarding employability were identical in the Veteran’s July 2019 VA knee examination. The Veteran testified in October 2019 before the undersigned that he is unable to take out his trash, retrieve his mail or do his own laundry. He testified that his neighbor goes to the grocery store for him. He also testified that he stopped attending college because he could not sit for long periods of time without pain and also without a locker, was unable to carry his books back and forth to his classes. Lastly, he testified that he only showers every three weeks as a result of the pain in his back and knee and due to concerns of falling in his bathtub. He reported he uses a cane for ambulation. Unemployability is a legal determination, not a medical one. The Veteran meets the threshold rating for a TDIU, and the probative medical and lay evidence of record show that his service-connected disabilities alone cause a significant impact on his ability to work. The Board finds that the realistic chances of the Veteran obtaining and retaining employment must also be considered in light of his physical, mental, and educational capabilities. Although it is conceivable that there may be some occupations that the Veteran could perform, the totality of the evidence supports a finding that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment when his educational and work background are taken into consideration. The Board will resolve reasonable doubt in the Veteran’s favor and find that he has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. To be as favorable as possible to the Veteran, the Board will allow the AOJ to assign the effective date for the grant of TDIU in the first instance both to take account of any newly implemented ratings and to make as complete a record as possible so the Veteran can appeal the effective date assigned by the AOJ if he is not satisfied with it. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an AOJ decision, such an argument is unavailing unless a notice of disagreement is then of record as to the downstream issue of an effective date for the assignment of that rating”). A TDIU is granted. Remaining Issues on Appeal are Dismissed. During the October 2019 Board hearing, the Veteran, with his attorney, indicated that he wanted to withdraw his claims to for increased rating in excess of 40 percent for lumbosacral strain and radiculopathy of the left lower extremity. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and they are dismissed. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Shannon 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.