Citation Nr: 21005080 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-34 355 DATE: January 28, 2021 ORDER Entitlement to an effective date earlier than June 13, 2007 for the grant of service connection for depressive disorder condition, on the basis of substitution, is denied. On and after June 13, 2007, entitlement to an initial disability rating of 70 percent for depressive disorder condition, on the basis of substitution, is granted. On and after June 13, 2007, entitlement to a total disability rating based on individual unemployability (TDIU), on the basis of substitution, is granted. FINDINGS OF FACT 1. In a December 1997 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for memory loss and implicitly denied entitlement to service connection for any other psychiatric disorder, to include a nervous disorder; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Following the December 1997 rating decision, there was no informal or formal request to reopen the Veteran's previously denied claim for a psychiatric disorder until the Veteran's submission of a VA Form 21-4138 on June 13, 2007. 3. On and after June 13, 2007, the Veteran's depressive disorder condition was manifested by occupational and social impairment with deficiencies in most areas, but not total social impairment. 4. On and after June 13, 2007, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than June 13, 2007 for the grant of service connection for depressive disorder condition, on the basis of substitution, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400. 2. On and after June 13, 2007, the criteria for entitlement to an initial 70 percent rating for depressive disorder condition, on the basis of substitution, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.4, 4.7, 4.130, Diagnostic Code 9434. 3. On and after June 13, 2007, the criteria for entitlement to a TDIU, on the basis of substitution, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This Veteran had a period of active duty service in the United States Army from January 1991 to June 1991. The Veteran died in September 2013, and the appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision. The Board notes that the October 2016 rating decision implemented the Board’s June 2016 decision that granted entitlement to service connection for depressive disorder. Prior to this decision, and within one year of the Veteran’s September 2013 death, the appellant submitted an April 2014 VA Form 21-0847, Request for Substitution of Claimant upon Death of Claimant. Although the AOJ did not issue a specific determination regarding this request, the agency of original jurisdiction (AOJ) did issue a September 2015 statement of the case (SOC) in which the AOJ indicated that it had accepted the appellant as an accrued beneficiary by adjudicating the issue of entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include major depressive disorder, including as due to a service-connected disability, on the basis of accrued benefits purposes. In the Board's June 2016 decision that awarded service connection, the Board similarly framed the service connection claim as a claim for accrued benefits. However, the Board also noted in the introduction that the appellant was the surviving spouse of the Veteran who had been substituted as the appellant for purposes of processing the mental health disorder issue on appeal to completion. Given that the AOJ determined that the appellant was eligible to receive accrued benefits under 38 U.S.C. § 5121(a), and in light of the fact that her substitution request was received within one year of the Veteran’s death, the Board finds that that AOJ made an implicit determination that the appellant was a substitute claimant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A(a)(1). The appellant was also accepted as a substitute claimant by the Board in the June 2016 decision. As such, the Board finds that she has been substituted as the claimant for the purposes of the issues on appeal. In the appellant’s October 2019 VA Form 9 for the initial increased rating claim for depressive disorder condition, the appellant’s representative asserted that the Veteran was unemployable due to his service-connected disabilities. Thus, the Board has taken jurisdiction over this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an effective date earlier than June 13, 2007 for the grant of service connection for depressive disorder condition, on the basis of substitution. Effective February 19, 2019, VA amended its procedural regulations for implementation of the Veterans Appeals Improvement and Modernization Act of 2017 (see 84 Fed. Reg. 138, Jan. 18, 2019); the regulations provided in this decision are from the former version that was in effect at the times relevant to this case. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that "[a]ny communication or action, indicating an intention to apply for one or more benefits . . . [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a). The VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection "will be the date of the informal claim." Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). In regards to the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier that the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). The effective date can also be no earlier than the date of the claim for service connection on a secondary basis. See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom; Ellington v. Peake, 541 F,3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Where a claim is granted based on new and material evidence received within an appeal period or prior to an appellate decision, the effective date shall be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Neither the appellant nor her representative has provided any theories to explain why they believe that an earlier effective date is warranted for the grant of service connection for depressive disorder condition. The record shows that in the June 2016 decision, the Board granted service connection for depressive disorder condition as secondary to the Veteran's hypertension and migraine headaches disabilities. The AOJ implemented this grant of service connection in the October 2016 rating decision, noting that the depressive disorder condition had been established as related to the Veteran's service-connected migraine headaches. The AOJ assigned an effective date of June 13, 2007 based on the Veteran's submission of VA Form 21-4138 on that date claiming entitlement to service connection for a nervous condition as secondary to his service-connected migraine headache disability. The record reflects that prior the Veteran’s June 13, 2007 submission of a service connection claim for a nervous condition, the Veteran submitted a service connection claim for memory loss on February 20, 1996. See VA Form 21-526 received on February 20, 1996. A subsequent December 1997 rating decision denied entitlement to service connection for memory loss as due to an undiagnosed illness. In the reasons and bases for this decision, the AOJ noted that the Veteran's service medical records were negative for any evidence of memory loss or any other nervous disorder. The AOJ also noted that the findings from an October 1996 VA mental examination revealed that the Veteran's memory was adequately preserved, and no specific mental disorder was shown. The Veteran was notified of that decision and his appellate rights in a December 1997 letter. To the extent that the Veteran's service connection claim for memory loss also encompassed the nervous condition that was later claimed by the Veteran in June 2007, the Board finds that the December 1997 rating decision implicitly denied entitlement to service connection for this disorder as well as any other psychiatric disorder. The Board notes that "the 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well, based on several factors. Id. at 962-63. In Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the United States Court of Appeals for Veterans Claims (Court) set forth four factors that must be considered when determining whether a claim was implicitly denied: (1) "The relatedness of the claims;" (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied;" (3) "the timing of the claims;" and (4) whether "the claimant is represented." Id. at 212-214. In considering the above factors, the Board notes that in terms of timing, the Veteran’s service connection claim for memory loss reasonably encompassed any psychiatric disorder present during the appeal period. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, the claim for memory loss is closely related in nature to a claim for any other psychiatric disorder. Essentially, the claim could be considered one claim for a psychiatric disorder. This is distinguishable from what was discussed in Ingram v. Nicholson, 21 Vet. App. 243 (2007), where there were completely unrelated claims under 38 U.S.C. § 1151 and a nonservice-connected pension claim. See Cogburn, 24 Vet. App. at 212 (citing 21 Vet. App. at 247). Thus, it would not necessarily be expected that there would be multiple decisions or discussions involving a psychiatric disorder. In denying entitlement to service connection for memory loss, the reasons and bases of the January 2007 rating decision addressed whether there was evidence of a nervous disorder or any other psychiatric disorder. The Board finds that the December 1997 rating decision sufficiently alluded to psychiatric disorders, to include a nervous disorder, to indicate to a reasonable person that the Veteran's service connection claim for any psychiatric disorder was implicitly denied. While the Veteran was unrepresented at the time of the December 1997 rating decision, that fact alone is insufficient to overcome the weight of the evidence supporting that the claim was implicitly denied in December 1997, as discussed above. Although the Veteran filed a February 1998 notice of disagreement in regard to the December 1997 rating decision's determination for his hypertension disability rating and service connection claims for sinusitis and migraine headaches, the Veteran did not include his service connection claim for memory loss in the notice of disagreement. In addition, no new and material evidence was received within one year of the notice for that decision. The December 1997 rating decision therefore became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Board has also considered whether the provisions of 38 C.F.R. § 3.156(c) are applicable in the present case and whether the regulation would allow for reconsideration of the Veteran's original claim for service connection and a possible legal basis for an earlier effective date for the grant of service connection. In this case, the December 1997 rating decision reflects that the AOJ considered STRs for the period from January 1991 to June 1991, as well as National Guard medical records for the period between 1980 and 1996. Although additional copies of the service treatment and military personnel records were associated with the file in September 2015, the record shows that these records were already of record at the time of the December 1997 rating decision. Therefore, 38 C.F.R. § 3.156(c) does not provide a basis for an earlier effective date. After the December 1997 rating decision, there was no communication from the Veteran expressing an intent to reopen his previously denied claims for a nervous disorder or any other psychiatric disorder until the Veteran submitted the VA Form 21-4138 on June 13, 2007. The Board notes that prior to March 24, 2015, under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, former 38 C.F.R. § 3.157 allowed a report of examination or hospitalization to be construed as an informal claim for an increased disability evaluation or a request to reopen certain types of previously denied claims. Although additional medical records and VA examination reports were associated with the claims file after the December 1997 rating decision, it is not shown that the Veteran underwent any hospitalization or treatment for a psychiatric disorder between the time of the December 1997 rating decision and the current effective date in June 2007. 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)(ii), (r). Thus, the effective date assigned can be no earlier than June 13, 2007, which was the date of VA's receipt of the Veteran's application to reopen his previously denied claim for a psychiatric disorder, to include a nervous disorder. Accordingly, the appeal for entitlement to an earlier effective date is denied. 2. Entitlement to an initial disability rating in excess of 50 percent for depressive disorder condition, on the basis of substitution. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary in order for a rating to accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The Veteran's service-connected depressive disorder condition has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9434; however, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. The Veteran's psychiatric disability has been assigned a 50 percent disability rating for the entire period on appeal. A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the Veteran's own occupation or name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. The Board acknowledges that psychiatric examinations frequently include the assignment of a global assessment of functioning (GAF) score. The GAF was a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). Clinicians dealing with mental health issues currently use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The Court noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice, and further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. The Court explained symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error. Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores. Golden v. Shulkin, U.S. Vet. App. No. 16-1208 (February 23, 2018). In light of the above discussion, the Board finds the GAF scores assigned in this case to be of no probative value. In a July 12, 2007 letter, Dr. F., a psychiatrist, certified that the Veteran had been receiving psychiatric treatment in his office since March 2007. He was currently visiting on a monthly basis. A subsequent July 27, 2007 VA examination was conducted to evaluate the Veteran's psychiatric disability. Regarding the Veteran's employment history, he previously worked as a state policeman. The Veteran retired in December 2004 and was not currently employed. The cause of his retirement was noted to be eligibility by age or duration of work. Regarding the Veteran's social relationships, the examiner noted that the Veteran had been married twice. He was the father of two children, and he lived with his wife. Although the Veteran described his social relationships as "not too good," he described his family relationships as "very good." His leisure pursuits consisted of watching television. The Veteran did not have any history of suicide attempts or violence/assaultiveness. The Veteran treated his symptoms with an antidepressant. The Veteran did not have side effects and reported that the medication helped. The examiner noted that he reported having daily symptoms of moderate irritability, severe social withdrawal, and moderate trouble sleeping. During the examination, the Veteran had a clean appearance, spontaneous speech, a cooperative attitude, and a constricted affect. His mood was confused. The Veteran's attention was intact, and he was oriented to person, times, and place. His thought process and content were unremarkable. There was no evidence of delusions. The Veteran had average intelligence and understood the outcome of his behavior as well the fact that he had a problem. The examiner noted that the Veteran's sleep impairment interfered with daily activity as he felt weak the next day. The Veteran did not have inappropriate or obsessive/ritualistic behavior. In addition, he did not experience homicidal or suicidal thoughts. The examiner also determined that he had good impulse control with no episodes of violence. He was additionally able to maintain minimum personal hygiene, and he did not require assistance with activities of daily living. In addition, the examiner found that the Veteran had normal remote memory, recent memory, and immediate memory. The Veteran also knew the amount of his benefit payment and was found capable of managing his financial affairs. The diagnosis was depressive disorder not otherwise specified (NOS). The examiner stated that the Veteran did not experience total occupational and social impairment due to mental disorder signs and symptoms. The examiner also found that the Veteran did not have any of the provided less severe levels of occupational and social impairment, to include symptoms that were transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted that his mental disorder symptoms were controlled by continuous medication. The next day on July 28, 2007, Dr. F. completed a psychiatric evaluation of the Veteran. Dr. F. noted that the Veteran was married. He also had a second-year college education, and he was currently retired. Dr. F. stated that the Veteran reported having migraine, high blood pressure, and discogenic disease. He also had muscle spasm and spurs to the spine. Dr. F. noted that the Veteran first began to experience nightmares, hypertension, and migraine headaches during service; and he continued to have problems with migraines and hypertension when he returned home from service. The Veteran informed the examiner that his migraine had evolved into a very severe condition, and he was currently experiencing migraine episodes every day. During weeks when his symptoms were less severe, he had migraines at least three times per week. During episodes of migraines, the Veteran was unable to tolerate noises. He also became intolerant and irritable, and he developed ideas of hopelessness and physical impotence. He had additionally developed weakness, disorientation to place, insomnia, and a bad attitude towards relatives. Although he tried to treat his symptoms with Zomig and Imitrex, Dr. F. indicated that the medication was not helpful. The Veteran was currently very depressed and concerned about his condition. He was noted hear voices that he could not identify. Regarding hypertension, the Veteran's disability was controlled with the use of medication, specifically lisinopril and hydrochlorothiazide. The Veteran was also concerned about severe memory problems that he had developed. The Veteran started to feel emotionally disturbed after returning from active service, and he continued to serve in the National Guard until 2000. The Veteran decided not to seek help as he was serving in the National Guard and preparing to be a municipal policeman. In addition, he was informed by friends that he would be confined to a VA hospital psychiatric ward for a period of one month if he filed a claim for benefits. Dr. F. indicated that during this period, the Veteran had constant symptoms of depression, easy irritability, anger, and poor memory problems. The Veteran started feeling emotionally disturbed after he came back from service. Dr. F. noted that the Veteran also discovered that he had hepatitis C three years ago, but he reported that his viral count was presently controlled with the use of medication. The Veteran was very optimistic about this issue. During the evaluation, the Veteran presented as a well-developed and well-nourished. He was casually dressed and had adequate personal hygiene. Dr. F. noted that he had a sad expression, a constricted affect, and a depressed mood. His thought production was logical, but scanty; and his answers were relevant and connected. Although the Veteran had a history of suicidal ideas, he did not have any at the time of the evaluation. The Veteran reported having very frequent auditive hallucinations. He was also often under the impression that he was being followed. The Veteran had well-preserved orientation to person; but partially impaired orientation to place and time as he could not tell the address of the office for the evaluation. Testing showed that his recent and remote memory were poorly preserved as he did not recall his lunch from yesterday or his children's birthdate. Dr. F. also noted that the Veteran was distracted at time. His judgement was partially impaired, but his insight was well-preserved. Dr. F. also stated that the Veteran was partially impulsive. In terms current functioning, the Veteran did not perform household chores as his wife took care of these tasks. He mainly watched television and stayed secluded and isolated in his room. The Veteran disliked answering the phone or having friends or relatives visit. He occasionally accompanied his wife when she went shopping, and he visited his church to seek peace of mind. He did not have any hobbies or interest in current affairs. Dr. F. also reported that the Veteran did not participate in group activities and had difficulty making new social contacts. His relatives usually did not consult him about family situations, and he did not interact with strangers. The Veteran reacted to stressful situations by becoming depressed and sad. He had poor concentration capacity, and Dr. F. stated that he would not persist at tasks or complete a normal workday. The Veteran reported having sporadic panic attacks. He also needed supervision regarding his personal grooming and feeding. In addition, he slept poorly. The Axis I diagnosis was major depressive disorder - recurrent - severe with psychotic traits. The prognosis was poor, and Dr. F. found that the Veteran needed supervision to handle funds. Dr. F. noted that the Veteran needed continued psychiatric treatment, and he did not doubt that the Veteran's mental condition was secondary to his migraines and high blood pressure. The Veteran's poor health had precipitated his mental condition. In an October 2007 VA treatment record, the Veteran was noted to be well-groomed and alert and oriented in time, place, and person. The Veteran was assessed to have depression. He did not currently have any suicidal or homicidal ideas or hallucinations. He was also using medication and sleeping better. In February 2008 and July 2009, VA treatment records stated that the Veteran was alert and oriented to time, place, and person. He was also well nourished and groomed. There was no evidence of homicidal or suicidal ideas. In November 2009, an additional VA examination related to the Veteran's psychiatric disability was conducted. Regarding social functioning, the Veteran lived with his wife and described his family relationship as "the best." He also reported that the quality of his social relationships was good. The Veteran continued to watch television in his free time, and he took walks. Similar to the report in Dr. F.'s evaluation, the examiner noted that the Veteran previously started college without finishing a degree. He was still not working. There continued to be no history of suicide attempts or violence/assaultiveness. The Veteran's current treatment consisted of anti-psychotic and anti-anxiety medications that did not have side effects. However, the Veteran reported that he had not noticed any improvement with the medications. He also engaged in individual psychotherapy that was not very effective. The Veteran reported having moderate symptoms of irritability, ruminations, forgetfulness, depressed mood, and fearfulness. These symptoms began two years ago and continued on a daily basis. The examiner also indicated there were no deficiencies in judgment or insight. The Veteran did not have inappropriate behavior or obsessive/ritualistic behavior. The examiner stated that the Veteran did not have a sleep impairment. There were no homicidal or suicidal thoughts. The Veteran also had good impulse control. The Veteran presented to the examination with a clean appearance and demonstrated spontaneous speech. His attitude towards the examiner was cooperative. He was noted to have a constricted affect, and a nervous mood. The Veteran's attention was intact, and he was oriented to person, time, and place. His thought process and content were found to be unremarkable without evidence of delusions or hallucinations. The Veteran was able to maintain his minimum personal hygiene and had no problem with activities of daily living. There were no abnormalities in remote, recent, or immediate memory. The Veteran continued to be found capable of managing his financial affairs. The diagnosis was depressive disorder NOS. Similar to the July 2007 VA examination, the examiner found that the Veteran's symptoms were not manifested by any of the provided levels of occupational and social impairment. The examiner noted that the mental disorder symptoms were controlled by continuous medication. In September 2011, a VA treatment record reported that the Veteran was alert and oriented in person, time, and space. He was well nourished and well groomed. These findings were unchanged in June 2012. The June 2012 VA treatment record noted that there was no suicidal or homicidal ideation and no insomnia. In February 2013, a VA treatment record reported that no homicidal or suicidal ideas were present. The Veteran was well nourished and groomed in addition to being alert and oriented to time, place, and person. After considering the foregoing evidence, the Board finds that an initial 70 percent rating is warranted for the entire appeal period. 38 U.S.C. § 5107(b). Dr. F. noted during the July 2007 evaluation that the Veteran reacted to stressful circumstances with depression and sadness. Although this symptom was not specifically noted during the July 2007 and November 2009 VA examinations, the examiners also did not find that the symptom was not present and failed to address the Veteran’s ability to adapt to stressful circumstances. The Board finds that this symptom falls within the difficulty in adapting to stressful circumstances (including work or a worklike setting) that is contemplated by the 70 percent rating criteria. The Veteran displayed some, but not all, of the symptoms listed as examples under the 70 percent rating criteria. Resolving all doubt in favor of the Veteran, the Boards finds that the overall level of impairment during this period is best reflected by a disability rating of 70 percent from June 13, 2007. 38 U.S.C. § 5107(b). However, the Board finds that a disability rating higher than 70 percent is not warranted. As noted above, a 100 percent rating requires total social and occupational 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. First, the evidence throughout the period on appeal, without even considering occupational impairment, does not demonstrate total social impairment. The Veteran was married throughout the appeal period. Although Dr. F. and the July 2007 VA examiner indicated that the Veteran preferred to isolate, did not participate in group activities, and did not have good social relationships; he nevertheless reported having very good relationships with his family during the July 2007 VA examination. Dr. F. also indicated that he participated in activities with his wife such as shopping. Moreover, by the time of the November 2009 VA examination, the Veteran reported that his social relationships were good, and his family relationships were the best. The evidence indicates significant impairment in social functioning, but not a total impairment. Furthermore, the Veteran's symptoms are not of the severity or frequency to warrant a 100 percent evaluation. Although the Veteran was noted to be irritable during this period, and Dr. F. described him as partially impulsive, the evaluations indicated that his behavior was non-violent. Moreover, both the July 2007 and November 2009 VA examiner found that the Veteran had good impulse control and did not have inappropriate behavior. As such, the Board does not find that the Veteran exhibited this type of behavior during the appeal period. The Board also notes that the great majority of the VA treatment records from this period indicated that the Veteran did not having any deficiencies in grooming. The Board acknowledges Dr. F.'s July 2007 report that the Veteran’s wife managed the household chores; and the Veteran needed supervision regarding his personal grooming, feeding, and ability to handle funds. However, Dr. F.’s determination is at odds with the earlier and subsequent findings from the July 2007 and November 2009 VA examiners that the Veteran was capable of managing his financial affairs as well as able to maintain minimum personal hygiene; and he had no problem with, and/or did not require assistance with, activities of daily living. Consequently, the evidence does not show that the Veteran was unable to maintain his activities of daily living or hygiene during this period. The Board also finds that the record does not reflect the presence of a gross impairment in thought processes or communication. Although the Dr. F. stated that the Veteran had logical, but scanty thought production in July 2007; his thought process and content were noted to be unremarkable during the July 2007 and November 2009 VA examinations. The VA examiners also indicated that the Veteran had normal speech. Thus, the record does not reflect that he had a gross impairment in this area. The Board notes that the Veteran reported a history of suicidal thoughts during the July 2007 evaluation with Dr. F. However, Dr. F. also noted that no suicidal ideation was present during the evaluation. The July 2009 and November 2009 VA examinations as well as the VA treatment records from this period also consistently reported that no suicidal ideation was present. In addition, the evidence does not suggest that the Veteran had any homicidal ideation or a history of violent or assaultive behavior. As such, the Board does not find that he was in persistent danger of hurting himself or others during this period. The Board acknowledges Dr. F.’s July 2007 conclusion that the Veteran had partially impaired orientation to place and time. However, this finding is inconsistent with the great majority of the records from this period that consistently noted that the Veteran was fully alert and oriented. See July 2007 VA examination; VA treatment records dated in October 2007, February 2008, and July 2009; November 2009 VA examination; VA treatment records dated in September 2011, June 2012, and February 2013. Consequently, the record does not support a finding that the Veteran experienced disorientation to time or place during this period. The Board also notes that the Veteran's memory was described as no more than mildly impaired during this period. Although Dr. F. also noted that the Veteran had severe memory problems with poorly preserved recent and remote memory, both the July 2007 VA examiner and the November 2009 VA examiner found that the Veteran had normal remote, recent, and immediate memory. As a result, the record does not show that the Veteran demonstrated memory loss for the names of close relatives, his own occupation, or his own name. The Board notes that the evidence from this period includes Dr. F.’s July 2007 report that the Veteran experienced very frequent auditive hallucinations. Notably, there was no report of hallucinations from the July 2007 VA examination report conducted only one day prior to Dr. F.’s evaluation; and the examiner specifically stated that no delusions were present. In addition, the subsequent evaluations included findings that there were no current delusions and/or hallucinations. See October 2007 VA treatment record, November 2009 VA examination report. Thus, the evidence does not reflect that he experienced persistent delusions or hallucinations during this period. Moreover, as noted above, there is not total social impairment, despite significant effects on social functioning. The Board therefore finds that the rating criteria for the next higher 100 percent disability evaluation have not been met at any point during the period on appeal. As the preponderance of the evidence is against awarding any rating higher than the 70 percent rating awarded herein, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-55. 3. Entitlement to a TDIU, on the basis of substitution. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16(a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Board notes that the TDIU claim on appeal was raised in the context of the initial increased rating claim for the Veteran’s psychiatric disability. See October 2019 VA Form 9. As noted above, the claim that resulted in the grant of service connection for the Veteran’s depressive disorder condition was filed on June 13, 2007. Thus, the current appeal period begins on June 13, 2007. See Rice, 22 Vet. App. at 453; see also Harper v. Wilkie, 30 Vet. App. 356 (2018) (determining that the Veteran's notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). In light of the increased rating awarded herein, the Veteran’s disability ratings during the appeal period included a 10 percent disability rating for hypertension, a 30 percent disability rating for migraine headaches, and a 70 percent disability rating for depressive disorder condition. The Veteran’s combined rating was 80 percent. See 38 C.F.R. § 4.25. Consequently, the Veteran's service-connected disabilities have rendered him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation for the entire period on appeal. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consistent with the reports from the psychiatric evaluations noted above, a January 2006 Request for Employment Information in Connection with Claim for Disability Benefits noted that the Veteran had worked full time for a police internal affairs department from November 1977 to December 2004. The employer did not note any concessions due to disability, and he indicated that the Veteran retired upon reaching 30 years of service. In addition, the record does not indicate that the Veteran engaged in any form of employment during the appeal period. In addition to the findings reported above, the record includes VA examination reports specific to the Veteran’s hypertension and migraine headaches. Regarding hypertension, an October 2004 VA examination from prior to the appeal period noted the Veteran's report that he had lost his sense of smell in the past few months. He was otherwise doing well with blood pressure under control. The examiner noted that he did experience mild, but frequent, migraine headaches. There was no history of angina, palpations, or anything to suggest congestive heart failure. In a January 2005 addendum, the examiner stated that the Veteran had headaches, chest pain, and shortness of breath that may all be as likely as not proximately due to, or related to, the Veteran's arterial hypertension. A November 2004 VA examination related to the Veteran's headaches noted that he experienced headaches two to three times a week. There were also some occasions during which the headaches could occur on a daily basis for almost a month. The headaches were generalized and focal, and they were always throbbing. They could be preceded or accompanied by scintillating scotomas. The pain could last from 12 to 14 hours, and up to 24 or 30 hours. The Veteran rated his severe headaches as a 10 out of 10. During such an episode that could occur 2 to 3 times a month, he could not continue any ordinary activity and became prostrated in bed. His more frequent headaches were a 5 out of 10, and he just tolerated these types of headaches. These headaches were always accompanied by photophobia, sonophobia, and sensitivity to strong perfumes and tobacco odor; and they could also be accompanied by nausea and vomiting. Medications used to treat the symptoms were beneficial. At the time of the examination, the Veteran was still working for the municipal police. The examiner noted that he was independent in activity and able to drive. The diagnosis was chronic recurring migraine headaches with and without aura and with prostrating episodes as described. In January 2005, the same examiner opined that the question of duty interference during prostrating headaches was not answered as there were no employer statements of absence due to sickness in the Veteran's claims file. However, the examiner stated that without such information, it was more likely than not that the Veteran would be away from duty during the periods of prostrating headache described by the Veteran. An additional VA examination related to headaches was conducted in February 2007. The examiner noted the Veterans report that his migraines had worsened in the past few months. They occurred on a daily basis. The headaches were located in the fronto-occipital area, and they were associated with symptoms of throbbing accompanied by photophobia, osmophobia, sonophobia, nausea, and vomiting. He could also have dizziness and pain rated as a 10 out of 10 on the numerical scale. The Veteran's response to medications was poor. The examiner also noted that the frequency of the headaches was weekly, and most attacks were prostrating. The usual duration of a headache was 1 to 2 days. Although the Veteran was not employed at the time of the examination, the examiner noted that the headaches affected his usual daily activities. The headaches prevented him from engaging in chores, shopping, exercise, sports, recreation, and traveling. There was a mild effect on feeding, and no effect on bathing, dressing, toileting, or grooming. The examiner clarified that the interference with activities of daily living was only during a migraine attack as a result of prostration. In February 2010, the Veteran was provided with another VA examination related to his migraines. In addressing the initial manifestations of the disability, the examiner stated that the Veteran had been a municipal policeman who suddenly experienced severe bifrontal and temporal area cephaleas that were oppressive and associated with sonophobia, photophobia, and osmophobia. The headaches could be precipitated by sun exposure and strong odors. Although the Veteran used medication to treat his headaches with a fair response to treatment, he experienced side effects in the form of dizzy spells and weakness. The headaches had occurred with a weekly frequency during the past 12 months. Most headaches were prostrating and lasted for hours. The diagnosis was migraine headaches. The headaches were noted to affect the Veteran's usual daily activities with a severe effect on chores, shopping, exercise, sports, recreation, traveling, feeding, bathing, dressing, toileting, and grooming. The examiner noted that these limitations were only present during acutely prostrating episodes. In reviewing the evidence close to, and during the appeal period, the Board has determined that no type of employment would appear to have been appropriate for the Veteran in light of his functional capacity and work experience. See 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record indicates that the Veteran did not complete a college degree, and his recent work history included working in the National Guard and for the local police department. The available findings from the appeal period indicate that the functional effects of the Veteran’s service-connected disabilities would negatively impact his ability to secure or follow these types of employment. The evidence shows that the Veteran had difficulty concentrating in relation to his psychiatric disability, and Dr. F. opined that the Veteran would be unable to complete the tasks associated with a normal workday. Dr. F. also indicated that the Veteran had problems responding to stress as he became depressed and sad in stressful situations. In addition, and as noted above, although neither the July 2007 VA examiner nor the November 2009 VA examiner opined that the Veteran’s psychiatric disability was manifested by any level of occupational impairment, the Board finds that these opinions have reduced probative value as they did not address the Veteran’s concentration difficulties or problems responding to stress that were noted by Dr. F. In addition, the February 2007 and February 2010 VA examination reports noted similar symptoms of weekly migraine headaches with symptoms that were prostrating and could last for hours or days. Both examiners found that the Veteran would either be prevented or severely impaired from completing the great majority of activities of daily living during these events. These findings are consistent with the prior opinion from the January 2005 VA examiner indicating that the Veteran would need to be away from duty during prostrating attacks. The Board finds that the above symptoms of the Veteran’s psychiatric disability in addition to the frequency of the Veteran’s prostrating attacks of migraine headaches rendered the Veteran unable to perform the types of physical or mental activities that were likely associated with his prior employment for the police department and National Guard. As indicated above, neither the Veteran's work nor educational history suggests that any other type of employment would be appropriate for the Veteran. The Board also notes that the Veteran appeared able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment although he or she is fairly comfortable at home or upon limited activity. See 38 C.F.R. § 4.10. In addition, it is unnecessary to prove that the Veteran was 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Based on the probative evidence of record, and resolving all benefit of the doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, and a TDIU is warranted for the entire period on appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.