Citation Nr: 21062442 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-46 571 DATE: October 7, 2021 ORDER As new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for tension headaches, claimed as migraines secondary to a service-connected back disability (lumbosacral discogenic disease), the application to reopen the previously denied claim is granted. Service connection for tension headaches claimed as migraines secondary to a service-connected back disability (lumbosacral discogenic disease) is granted. An increased disability rating of 70 percent but not higher, as of February 22, 2018, for service-connected major depressive disorder, is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. In a September 2016 rating decision, the Regional Office (RO) disallowed the Veteran's claim of entitlement to service connection for tension headaches, claimed as migraines. The Veteran did not timely appeal this decision, and it became final. 2. The evidence received since the September 2016 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for tension headaches. 3. The Veteran's tension headaches, as likely as not, began during active service and have continued since active service. 4. As of February 22, 2018, the Veteran's service-connected major depressive disorder has resulted in occupational and social impairment, with deficiencies in most areas. 5. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The September 2016 rating decision that denied service connection for tension headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. As new and material evidence has been received, the criteria for reopening a claim of entitlement to service connection for tension headaches have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tension headaches, claimed as migraines, have been met. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for the assignment of disability rating of 70 percent as of February 22, 2018, but no higher, for the service-connected major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, DC 9433. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2001 to September 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2018 Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for tension headaches (claimed as migraines secondary to upper back condition), as secondary to lumbosacral discogenic disease, and continued the 30 percent disability rating for persistent depressive disorder with anxious distress. During the pendency of the appeal, the RO issued a January 2020 rating decision increasing the disability rating for persistent depressive disorder with panic disorder to 50 percent effective December 17, 2019, the date of VA examination. As this is not a complete grant of benefits sought on appeal, the increased rating claim remains pending. In March 2021, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In a June 2021 rating decision, the RO noted that the Veteran filed a claim for an increased evaluation that was received on March 12, 2021. The RO proposed to decrease the Veteran's evaluation of persistent depressive disorder with panic disorder from 50 percent to 30 percent; and denied entitlement to a TDIU. In June 2021 correspondence, the RO advised that they proposed to reduce the evaluation of the Veteran's persistent depressive disorder with panic disorder from 50 percent to 30 percent. However, in August 2021 correspondence, the RO explained that because the issue of an increased rating for service-connected psychiatric disorder was already in appellate status before the Board, the RO cannot address the issue of a proposed rating reduction at this time. 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for tension headaches claimed as migraines secondary to a service-connected back disability (lumbosacral discogenic disease) Generally, a claim which has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1100. Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103. An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.21, 19.52, 20.200. If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c). Likewise, for legacy appeals, if the Veteran does not timely perfect an appeal to the Board following the RO's issuance of a Statement of the Case (SOC), the rating decision on which the SOC is based becomes final. 38 C.F.R. §§ 19.20, 19.22, 19.52. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is required to reopen a final claim. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. For legacy appeals, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson, 265 F.3d 1366, 1369. New and material evidence has been received sufficient to reopen a claim of service connection for tension headaches, claimed as migraines. This claim was not previously listed as requiring new and material evidence. However, review of the record reveals that the Veteran's claim for tension headaches was denied in a September 2016 rating decision. That rating decision was not timely appealed, and it became final, as discussed in further detail below. In a September 2016 rating decision, the RO, inter alia, denied service connection for tension headaches, as secondary to an upper back condition (cervical spine condition), on the basis that service connection on a secondary basis could not be established because his upper back condition was not service connected. The RO determined that there is no evidence showing tension headaches were incurred in or aggravated by his military service. The Veteran did not timely appeal the September 2016 rating decision within a year of notification, and it became final. On February 22, 2018, the Veteran filed a claim for service connection for migraines secondary to his lumbar condition. In April 2018 correspondence, VA advised the Veteran that his request to reopen had been received, and in the May 2018 rating decision, the RO, inter alia, denied service connection for tension headaches (claimed as migraines secondary to upper back condition) as secondary to lumbosacral discogenic disease. The Veteran received notification of this decision in May 2018. The Veteran timely initiated an appeal of the May 2018 rating decision with a June 2018 notice of disagreement (NOD). The RO issued a statement of the case (SOC) in September 2018, denying the Veterans claim. The Veteran perfected an appeal to the Board with a timely VA Form 9 in October 2018. The Veteran's claim was previously denied on the basis that service connection on a secondary basis could not be established because his upper back condition was not service connected and that there was no evidence showing tension headaches were incurred in or aggravated by the Veteran's military service. Evidence received since the September 2016 rating decision not previously taken into consideration includes VA and private treatment records, a May 2018 VA examination, March 2021 Board hearing testimony, and a March 2021 private medical opinion. This evidence was not previously of record, it is neither cumulative or redundant of evidence previously considered, and it raises a reasonable possibility of substantiating a claim of service connection for headaches because it addresses the reasons for the prior denial. Accordingly, the evidence received since the last final denial in September 2016 is sufficient to reopen the claim of service connection for tension headaches. 2. Entitlement to service connection for tension headaches claimed as migraines secondary to a service-connected back disability (lumbosacral discogenic disease) Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. The Veteran contends that his tension headaches, claimed as migraines, are related to service, to include as secondary to his back disability (lumbosacral discogenic disease). Service treatment records (STRs) indicate that examination on January 17, 2001 revealed a normal clinical evaluation. In the corresponding report of medical history, the Veteran described his present health as good and did not report that he has or has had any disabilities. A September 28, 2001 record shows complaints of chest pain, migraine, dizziness, and fatigue for three days. He reported that he had a migraine and tried taking Motrin, but without relief. In a screening note of acute medical care on September 28, 2001, the chief complaints included migraines. A March 25, 2002 record shows complaints of headaches. VA treatment records show a history of headaches, in a June 16, 2008 record. In July 2016, the Veteran underwent a VA examination for headaches (including migraine headaches). The examiner noted a diagnosis of tension headaches and that the Veteran reported that the onset of his headaches was that he would "say 2 years ago when it was starting to become consistent." The examiner opined that it is less likely as not that the Veteran has a diagnosis of migraines incurred in or caused by military service. The examiner opined that it is less likely as not that the Veteran's migraines are proximately due to or the result of upper back condition. The examiner's rationale is that no diagnosis of migraine headaches is rendered. In the April 2018 headaches disability benefits questionnaire (DBQ), the examiner noted a diagnosis of tension headaches, with an "unspecified" date of diagnosis. The examiner remarked that the Veteran is seen repeatedly in the ER and in clinic visits with consistent complaints of headache pain associated with flare-up of back and neck pain, in recent years, since 2015. The diagnosis of tension headaches is well reported in VA records and in the 2016 VA examination for headaches. Brief review of medical literature, including UpToDate literature references, report that tenderness of the pericranial myofascial tissues and number of trigger points are considerably increased in patients with "tension-type headache [TTH]." Muscle tenderness in the head, neck, or shoulders (i.e., pericranial tenderness) is associated with both the intensity and frequency of TTH attacks and is typically exacerbated during the headache experience." In the April 2018 VA medical opinion, the examiner opined that the Veteran's migraine headache condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner found that the tension headache condition claimed is less likely than not proximately due to or the result of the Veteran's service connected "lumbosacral discogenic disease" condition. The examiner's rationale was that the Veteran's headaches are documented not as migraine, but as non-migraine, debilitating, tension headaches, characterized as prostrating headaches, associated with nausea, and with increasing frequency and severity in the last few years. The medical literature reports tension headaches are associated with "pericranial" muscle tenderness, decreased ROM of the neck. The examiner stated that on examination, he exhibits those typical findings of tension headaches, with the tenderness of the "pericranial" muscles. The STRs describe the onset of a myofascial pain syndrome in military service with low back pain, tenderness, diminished ROM, spasm, myofascial pain, currently described as "lumbosacral discogenic disease" for VA examination purposes. The Veteran did report a neck complaint on his separation history, but a service-connected neck condition has not been found. The examiner stated that the Veteran does have chronic tension headaches coupled with cervical myofascial pain, based on all of the findings and the typical nature of tension headaches. She stated, however, that she was not able to find a nexus to service, connecting the tension headaches to the low back condition ("lumbosacral discogenic disease"), nor clinical medical reference to support a connection. During the March 2021 Board hearing, the Veteran testified that his headaches began when he was in service, wearing all of his gear. He stated that prior to service he was very active, playing football and wrestling in high school, and that his entrance examination does not note headaches. The Veteran stated that he was getting headaches during service but was always told to ignore them. He stated that he had headaches very often during service but was given Motrin and had to power through them because he did not want to be a detriment to his unit. He stated that his headaches have been consistent since service, and that his current headaches are the same as he had in service but that since then they have gotten a little worse, more debilitating. He stated that he is not prescribed medication for his headaches, but that he takes his back medication (morphine), as well as ibuprofen three times a day, when his headaches are really bad. In a March 2021 private treatment record, the Veteran's medical provider stated that the Veteran has been under her care since 2018 and has chronic neck pain causing tension headaches. The examiner stated that it is as likely as not caused by the injury the Veteran sustained while on active duty. The competent medical evidence of record, as discussed above, shows that the Veteran has a diagnosis of tension headaches, STRs show reports of headaches during service, and the Veteran testified that he has been experiencing the same types of headaches since service. The record shows that during service the Veteran reported tension headaches multiple times during service and since then he has continued to report tension headaches in medical treatment records. The July 2016 and April 2018 VA examiners stated that the Veteran's headaches are not due to his back condition, but neither addressed the onset of the Veteran's headaches and the continuity of reported headaches since service. Similarly, the Veteran's private examiner did not address the in-service onset of the Veteran's headaches and instead stated that his tension headaches are related to his neck condition; however, his neck condition is not a service-connected disability and may not be the basis for service connection on a secondary basis. The April 2018 VA examiner did acknowledge that the Veteran has a diagnosis of tension headaches and that headaches were shown in service; however, the examiner did not provide a medical opinion regarding direct service connection. None of the examiners addressed whether there was in-service onset or how his reported headaches during service relate to his continued reports of headaches since service. Based on the above, the Veteran has a current diagnosis of chronic tension headaches, STRs show that he experienced headaches during service, and the Veteran has credibly testified that he has continued to experience these headaches since service. Although the Veteran is not competent to know the etiology of his headache disability, he is certainly competent to report observable symptoms such as headache pain, and its onset; and, there is no reason to doubt his credibility in this regard. Thus, it is as likely as not that the Veteran has chronic tension headaches that had their onset during service. At the very least, the evidence is in equipoise as to whether the Veteran's current tension headache disability had its onset during service and has been continuous since service. Accordingly, with resolution of all doubt in favor of the Veteran, service connection for tension headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a disability rating in excess of 30 percent prior to December 17, 2019 and in excess of 50 percent thereafter for the service-connected major depressive disorder Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of a disability evaluation 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. 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. 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 deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that his service-connected persistent depressive disorder with panic disorder, associated with lumbosacral discogenic disease warrants a disability rating higher than currently assigned. The Veteran's persistent depressive disorder is currently assigned a 30 percent disability rating from March 11, 2016 under 38 C.F.R. § 4.130, DC 9434 and a 50 percent disability rating from December 17, 2019 under DC 9433. DC 9434 pertains to major depressive disorder and DC 9433 pertains to persistent depressive disorder (dysthymia). Both are rated pursuant to the General Rating Formula for Mental Disorders. A 30 percent rating is warranted when the disorder is manifested by 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). Id. 38 C.F.R. § 4.130. A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Other language in Vazquez-Claudio shows that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. 116. If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In July 2016, the Veteran underwent a VA examination for mental disorders. The report shows diagnoses of panic disorder without agoraphobia and persistent depressive disorder with anxious distress. The Veteran reported depressive symptoms related to his back condition and experiences panic attacks when driving, unrelated to his back. His panic disorder mildly aggravates his depressive disorder with anxious distress. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that the Veteran was living with his wife and that their marriage was generally going well but his sex drive decreased since taking prescribed antidepressants. He said they do not go out together, and that he has no social contact. The Veteran reported no alcohol or drug use. The Veteran experiences symptoms including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was casually dressed and well groomed, spoke freely, was correctly oriented, his thoughts were logical and goal-directed, and there were no signs of major psychopathology, such as hallucinations or delusions. His affect was within normal limits, mood was neutral, and his attention and memory were intact. The Veteran underwent a March 2018 VA examination for mental disorders, showing that he has diagnoses of persistent depressive disorder (primary) and panic disorder (mild and secondary). The examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Regarding panic disorder, he described mild and occasional symptoms, noting improvement since he began taking medication five months ago. Regarding depression, the Veteran denied any periods of full symptom remission, and described ongoing symptoms, generally consistent with the 2016 evaluation. The Veteran's symptoms of depression include periods of dysphoric mood, occasional tearfulness, feelings of worthlessness, and anxiety disorder included acute periods where he suffers from shortness of breath and feels light-headed and nauseous. The report shows that the Veteran is married and has one biological child and two stepchildren; the Veteran described his marriage as "fine" but that they have "hard times." He denied any mental health concerns that impact his parenting but described being physical limited due to his back problems. He stated that he is the primary caretaker of the children, and that he is able to manage the baby independently. On "good days" when he is more physically able to move around and not in "excruciating pain," he cares for the children, but also takes on more chores in the house. He estimated that he has three "bad days" each week where he can "barely do anything." He reported that there are times that he reads, watches television with his wife and his daughter, uses his phone to read the news, and likes to play videogames. The Veteran has two friends, who do not live in the area, and he does not talk to them regularly. He denied any regular social interactions, does not attend religious services, is not a member of any clubs or organizations, rarely drinks alcohol, and denied any recreational drug use. The Veteran's symptoms include depressed mood, and the examiner noted that he arrived on time for his appointment, with his family; affect and mood were primarily euthymic; cognitive functioning was intact; he did not endorse any problems related to memory, attention, or decision making; thought processes were logical and linear; and he was oriented. He described occasional thoughts of death, but there were no indicators that he experienced any symptoms of psychosis. The April 2018 private medical records indicate that the Veteran was married with three children and that he was attending school for psychology. In September 2018, the Veteran underwent a VA examination for mental disorders, showing diagnoses of depression and panic disorder. The report shows that his depression, secondary to back pain, continues at a mild to moderate level, negatively affecting his motivation and interest in hobbies; the examiner noted no change in severity level since the previous examination. Symptoms of his depression include depressed mood, diminished motivation. Regarding panic disorder, he continues having intermittent panic attacks while driving, and panic attacks varying in frequency. The examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted that both the depression and panic disorder cause impairment, and that the depression negatively affects his mood and motivation. The panic disorder leads the Veteran to be avoidant of driving, which limits his motivation to find work. The Veteran currently lives with his wife and three children; he stays home with the children and does not have support in caring for them. The Veteran denied discussing separation or divorce, and he has a few friends "but they're all busy and doing their own thing." He enjoys reading and sleeping in his free time. The Veteran stated that he last worked in 2015 as a truck driver but stopped due to his back pain. He stated that he has anxiety about driving "especially with the kids" and is hesitant to look for work due to worrying about driving. He stated that he continues having panic attacks when driving and has had five panic attacks while driving last month. He also noted anxiety related to finances and his children, denied currently engaging in therapy, but continues taking medication for his anxiety and mood. He stated that he often feels numb to holidays and his birthday, rarely gets angry, and described having a lower sex drive due to his medication, depression, and pain. He denied suicidal or homicidal ideation. The Veteran's symptoms were listed as depressed mood, anxiety, panic attacks that occur weekly or less often, and disturbances of motivation and mood. The examiner described the Veteran as cooperative, friendly, appropriately dressed and groomed, normal speech, calm psychomotor movement, full affect, upbeat, even mood, normal cognition, good insight and judgment, and denied suicidal or homicidal ideation. Medical records received from Social Security Administration (SSA) indicate that in a December 2019 psycho-diagnostic evaluation, it shows that the Veteran had DSM-V diagnoses of persistent depressive disorder; panic disorder without agoraphobia; and chronic back pain and chronic headaches. The Veteran reported that panic attacks started in 2016 with sudden occurrence, and that they previously had not interfered with his functioning. He reported that they occur at night, waking him in full panic, and that they happen while driving. The Veteran was described as blunt, judgmental, easily angered, with no patience for "stupidity." The Veteran rated anxiety 7 to 8 out of 10, noting that he cannot relax, and is always uptight; he rated depression as 3 to 7 out of 10. He stated that he has no patience, is irritable all the time, feels like giving up, and then has some resolve. He stated that he could get a job but knows that he cannot keep a job because he has to lie down every time his back hurts or headaches come, several times every day, and, consequently, gets "really really angry...I'm not killing myself, but I feel useless all the time, and there is always a black cloud over me." He stated that he has lost interest in a lot of things, has no friends at all, and does not do much with family. The examiner's impression was that the Veteran drove himself to the appointment, where he was a bit crass, spoke disparagingly about his medical care, and is generally unhappy with his current life situation, which involves taking care of the children on a day-to-day basis. He reports virtually no social interaction on a regular basis outside of his immediate family, but he did report a good relationship with his wife of three years. He stated the combination of chronic back pain, unpredictable panic attacks since 2016, frequently occurring headaches, and sleep deprivation has resulted in an inability to drive trucks anymore, employment he had maintained for the past 10 years. It shows that he presents with chronic depression and is probably at high risk for a major depressive episode if he gives up hope that his pain can eventually be eliminated. He experiences high anxiety, due in part to financial difficulties and his own physical discomfort and worries about his future in the light of chronic headache, back pain, insomnia, and increasing anxiety. The December 2019 mental disorders DBQ shows a diagnosis of persistent depressive disorder and mild panic disorder. The examiner noted that the Veteran continues to have depression, with no change in severity level since the last examination except for a mild increase in irritability. The examiner noted that the Veteran continues to have intermittent panic attacks, mostly while driving, but at times panic wakes him from sleep. The examiner stated that the Veteran often feels useless but not hopeless or worthless and has symptoms of depression including dysphoric mood, diminished motivation and symptoms of panic disorder including panic attacks 4-5 times a week. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. It shows that the Veteran was still married to his wife, living with her and their 3 children, and described his marriage as supportive. He stated that he quit his last job because he could not tolerate the stress of the work and conflicts with coworkers, and that he last worked steadily as a truck driver in 2015 but can no longer tolerate that much driving due to panic attacks and his chronic back pain. The report shows that the Veteran experiences symptoms including depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran presented as neatly dressed and groomed, oriented, with goal directed and logical speech, mildly irritated affect, dysphoric mood, and good eye contact, he feels victimized by his back pain; denies significant suicidal ideation, intent, or plan, his judgment, concentration and memory appear grossly intact, and he has no history of mania or psychosis. In an April 2021 mental disorders DBQ, the examiner noted diagnoses of persistent depressive disorder and panic disorder (mild). The examiner commented that the Veteran's depressive disorder moderately negatively impacts his social and occupational functioning and that his disorders would cause him to have moderate difficulty coping with stressful work conditions. He would have difficulty coping with high stress work environments that would exert pressure on his work performance, and his persistence and pace would be moderately slowed. The examiner stated that his panic disorder is mild and negatively affects his social life. The examiner noted symptoms of depression as depressed mood, diminished motivation, and symptoms of panic disorder as panic attacks and anxiety. The examiner noted that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran lives with his wife and children, does not really have friends, spends his time helping his kids with homeschooling and learning, and enjoys games on his computer or reading the news. The Veteran reported that he left his last job because he could not focus or manage the job, and that he left his previous job due to panic attacks and chronic back pain. The Veteran stated that he continues taking medication for depression and feels that it helps, noting that he only has the panic feeling while driving every once in a while, "but not in full force." He described having frequent sleep impairment, is always tired, rarely drinks alcohol, and denied illicit substance use. His symptoms include depressed mood, anxiety, panic attacks that occur weekly or less often, and disturbances of motivation and mood. The examiner found that the Veteran was cooperative, appropriately dressed and groomed, had normal speech, calm psychomotor movement, full affect, euthymic mood, linear thought process, normal content, memory appeared appropriate for age but was not formally tested, good insight and judgment, and denied suicidal or homicidal ideation. The Veteran reported that he has had suicidal ideation, but he denied current intent or planning. During the March 2021 Board hearing, the Veteran testified that, regarding his service-connected major depressive disorder, that since 2016, his back debilitates him all the time, not to mention his headaches, and that he is on medication that makes him drowsy. He stated that, related to his depression, he often thinks that he cannot provide for his family and questions what good he is "except for just another mouth to feed." He stated that it is not easy for him to talk about, and that he has three kids that he absolutely loves and a wife that works so hard, but he constantly feels useless. He indicated that he feels like he is a burden to his family. The Veteran feels as though his depression is constant and interferes with his daily life. He stated that he used to enjoy the outdoors but that he cannot go out and do those things anymore. The Veteran stated that he finally realized between 2014 and now that he could not sustain a job, has a lack of sleep, and cannot concentrate. He stated that he is on muscle relaxers and anti-depressants, which cause drowsiness, but that his body refuses to go to sleep. He stated that his sleep is never solid, and he has to take naps during the day, but that they are sporadic. Resolving reasonable doubt in favor of the Veteran, a higher evaluation of 70 percent is warranted for the Veteran's service-connected major depressive disorder for the entire period on appeal, beginning February 22, 2018, the date of his claim for an increased rating. The competent medical evidence of record reveals that the Veteran has been consistently reporting problems with socializing, focusing, sleep, panic attacks, difficulty with work, losing interest in activities, and thoughts of death and suicide. At certain points in time during the period on appeal, the Veteran has reported stable relationships with his wife and children, and that he is able to take care of his children; however, he does not like to socialize with others, and reportedly has no friends. Additionally, overall, the record shows that he experiences near continuous difficulties, including panic, anxiety, and irritability in his everyday life and that his depression affects his ability to function appropriately and effectively, including with working, driving, and socializing. When viewing the record as a whole, the overall disability picture shows that the Veteran's symptoms have consistently manifested in the type and frequency more nearly approximating the criteria for the 70 percent disability rating as shown in the medical records and examination reports discussed above, as well as the Veteran's credible testimony. The totality of the evidence shows that the Veteran has deficiencies in most areas. While the VA examiners have found that the Veteran experiences occupational and social impairment with reduced reliability and productivity, the Veteran testified that it is hard for him to discuss this topic. It is reasonable to infer that the Veteran was unable to give the VA examiners a full picture of the extent of his depression and how it has been affecting his everyday life and activities. Taking all of the medical evidence into account, in conjunction with the Veteran's statements and testimony, the Veteran has reported or shown symptoms consistent with the 70 percent disability rating as described above. The Board affords high probative value to the Veteran's credible testimony regarding the extent of his symptoms in addition to the symptoms consistently reported in treatment records and VA examination reports. Thus, as discussed above, an evaluation of 70 percent is warranted when, as here, there is occupational and social impairment with deficiencies in most areas. The Board finds that the extent of the Veteran's disability more nearly approximates the criteria for the assignment of a 70 percent evaluation, but no higher. The evidence shows difficulties with work, judgment, thinking, and relationships, but it does not show total occupational or social impairment. The Veteran continues to live with his wife and children, and while he experiences difficulties, the evidence shows that the Veteran does have meaningful relationships with his family. Furthermore, there is no indication that the Veteran is completely out of touch with reality, or that he is not competent to handle any basic activities of daily living. Thus, the overall record does not show that any time during the period on appeal, the Veteran's depressive disorder has resulted in total occupational and social impairment. Accordingly, the assignment of a 70 percent disability rating is warranted as of February 22, 2018, but no higher, for the service-connected major depressive disorder. However, a rating in excess of 70 percent is not warranted at any time during the period on appeal. 38 C.F.R. §§ 4.7, 4.130, DC 9433. 4. Entitlement to a TDIU The Veteran contends that his service-connected disabilities, including his depression, back, and headache disabilities prevent him from securing or following a substantially gainful occupation. In a December 2007 rating decision and a July 2008 rating decision, the RO denied entitlement to a TDIU. In a January 2020 rating decision, the RO deferred the claim of entitlement to a TDIU, and in a February 2020 rating decision, the RO denied entitlement to a TDIU. During the March 2021 Board hearing, the Veteran asserted that his service-connected major depressive disorder, back, and headaches have debilitated him since at least 2016, and that his last job ended because of his disabilities. As the Veteran contends that his service-connected disabilities render him unable to work, the issue of entitlement to a TDIU was raised by the record as part of the increased rating claim currently on appeal, filed on February 22, 2018. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 the Veteran's age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). For a schedular TDIU, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one service-connected disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Per this decision, the Veteran has three service-connected disabilities. The Veteran's persistent depressive disorder with panic disorder is evaluated as 30 percent disabling from March 11, 2016, and per this decision, 70 percent as of February 22, 2018; and lumbosacral discogenic disease is evaluated as 10 percent disabling from September 16, 2003 and 40 percent as of April 30, 2007. Per this decision, the Veteran's tension headaches condition is now a service-connected disability, but it has not yet been rated. However, even without the assignment of a disability rating for now-service-connected tension headaches, the Veteran's combined rating meets the schedular percentage threshold requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a) as of February 22, 2018. The record shows that the Veteran has experience working as a field seismic tester, a job involving heavy lifting, and truck driving. He also previously worked at his family's motel as a grounds man, picking up leaves and doing basic maintenance. He has worked in a call center, in customer service, as a receptionist, and as a mailroom clerk but that he was unable to perform these positions because of his back. In a March 2018 VA examination, the examiner stated that the Veteran reported functional loss or impairment of the thoracolumbar spine (back), noting less motion and more pain. The examiner stated that his back condition impacts his ability to work, noting that it would impact any activities that involve bending, twisting of trunk, lifting greater than 25 pounds, or prolonged sitting, standing, and frequent use of stairs. The Veteran would have to be allowed to change positions frequently, i.e., switching between standing and sitting when needed. In a March 2018 VA examination for mental disorders, the examiner stated that the Veteran's diagnosed acquired psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran denied any mental health concerns that impact his parenting, and he reported that he is the primary caretaker for the children. On "good days" when he is more able to physically move around and when he is not in "excruciating pain," he cares for the children, and takes on more chores around the house. He estimated that he has three "bad days" each week, during which he can "barely do anything." He denied any regular social interactions, and he described being physically limited due to his back problems. He stated that he would "love" to be able to go out and hike and walk around. The examiner stated that the Veteran has not worked for an income since 2014 when he was employed at a call center, where he worked there for three months, but he quit that job due to physical limitations and related pain. In terms of current employment, the Veteran said that he experiences periods each week where he is confined to the bed. He denied any mental health concerns that impact his work, noting that he has the "drive to work and desires to provide for his family, but he is limited by his back. In the April 2018 headaches DBQ shows that the examiner stated that the Veteran's headache condition impacts his ability to work. The examiner noted that it requires work that allows missing time, to rest about once weekly, that is, a flexible schedule, on a spontaneous basis. In a June 2018 VA examination, the examiner stated that the Veteran reported functional loss or impairment of the cervical spine, noting that he avoids driving on bad days because he cannot look over shoulder, and that he cannot do much when it locks up. The examiner stated that the Veteran's neck condition impacts his ability to work, noting that he is limited to work that does not require overhead work during periods of neck pain. In the September 2018 VA examination for mental disorders, the examiner noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted that both the depression and panic disorder cause impairment, with depression negatively affecting the Veteran's mood and motivation, and his panic disorder leading the Veteran to be avoidant of driving, which is limiting his motivation to find work. The Veteran stated that he last worked in 2015 as a truck driver but that he stopped due to his back pain "severely locked up on me and almost lost control of the truck." He said he has since had anxiety about driving and is hesitant to look for work due to worrying about driving. In the December 2019 mental disorders DBQ, the examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He last worked for one month in a call center, but he quit because he could not tolerate the stress of phone work and conflicts with coworkers. He stated that he was open to vocational rehabilitation input to help him find a career he can pursue within his limitations. He last worked steadily as a truck drive in 2015 but can no longer tolerate that much driving due to panic attacks and his chronic back pain. The examiner noted that the Veteran has difficulty in adapting to stressful circumstances, including work or a worklike setting. Medical records received from Social Security Administration (SSA) indicate that the Veteran filed a claim for disability in April 2019 due to lower back issues, headaches, and right knee issues. In January 2020, SSA determined that the Veteran was not disabled, based on documented findings. It shows that the Veteran alleged inability to function and/or work as of December 20, 2016, and residual functional capacity shows that he has exertional limitations. The Veteran stated that he quit working in 2016 because of panic attacks, which were unpredictable, and he had increasing back pain, and was taking pain medication. The Veteran stated that he cannot work because he cannot concentrate, is getting more forgetful, having increased back pain, increased headaches, and increased time of uncontrolled crying. He stated that he spends most of his time taking care of his children while his wife works and that he is in pain all the time, especially in the morning. He stated that he could get a job but knows that he cannot keep a job because he has to lie down every time his back hurts or headaches come, several times every day, and, consequently, gets "really really angry..." He stated the combination of chronic back pain, unpredictable panic attacks since 2016, frequently occurring headaches, and sleep deprivation has resulted in an inability to drive trucks anymore, employment he had maintained for the past 10 years. During the March 2021 Board hearing, the Veteran stated that he finally realized between 2014 and now that he could not sustain a job because of his disabilities. He stated that his last job ended because he was having too much trouble concentrating, lack of sleep, and throbbing headaches that would not go away. He stated that there is no way he could do that job anymore, and that it was too difficult at times to even drive to work because of his throbbing headaches. He stated that he had to pull over a couple times and had to call his wife to help get him one time. The Veteran testified that his back debilitates him all the time, in addition to his headaches and major depressive disorder. He stated that his medications make him drowsy, and that he has not worked since 2015 because of his medications and headaches. He stated that he has tried numerous jobs, but they have not worked out. He stated that the combination of his depression and physical problems cause him to be unable to work. In an April 2021 mental disorders DBQ, the examiner noted that the Veteran's depressive disorder moderately negatively impacts his social and occupational functioning and that his depression and panic disorder would cause him to have moderate difficulty coping with stressful work conditions. The examiner noted that he would have difficulty coping with high stress work environments that would exert pressure on his work performance, and that his persistence and pace would be moderately slowed due to depression and intermittent panic attacks. Overall, he would require a low stress work environment that would allow him to work independently away from the public. The Veteran said he last worked in 2014 when he worked at a call center for a month, but he said he could not focus and was unable to manage that job. He said he previously drove trucks since 2008 and stopped due to panic attacks and chronic back pain. In the March 2021 TDIU application, the Veteran stated that his service-connected depression and back disabilities prevent him from securing or following any substantially gainful occupation. It shows that his disability affected full time employment, he last worked full-time, and he became too disabled to work on December 12, 2014. He noted his previous occupation as driver. The application shows that the Veteran graduated high school, and he has not had any education or training since becoming too disabled to work. In the May 2021 back conditions DBQ, the examiner stated that the Veteran's back condition impacts his ability to perform any type of occupation task, noting very limited lifting, bending, twisting, carrying, sitting, standing, and walking. The ultimate question of whether a veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2014); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). However, a medical examiner is responsible for providing a full description of the functional effects of disability upon a person's ordinary activity and has done so here. See 38 C.F.R. § 4.10. The findings, comments and opinions of the VA examiners have appropriately been considered as pertinent evidence, along with the Veteran's competent assertions, in determining whether he is able to perform the acts required for substantially gainful employment. In light of the competent medical evidence, VA and private medical opinions, lay statements, a high school diploma, and lack of meaningful and gainful employment since December 2014, a TDIU is warranted when all doubt is resolved in the Veteran's favor. The Veteran's record shows that he completed four years of high school, has limited work experience in mostly physical labor, and is unable to sustain gainful employment due to symptoms of his service-connected major depressive disorder, lumbosacral discogenic disease (back disability), and tension headaches. The Veteran's service-connected disabilities cause physical limitations, including inability to lift, bend, twist, carry, sit, stand due to his back disability, as well as mental limitations, including problems with sleep, focus, motivation, and social interactions. The Veteran's statements are credible. Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). Based on the foregoing, the overall evidence of record shows that the Veteran is unable to maintain employment due to the combined effects of his service-connected major depressive disorder, back disability, and tension headaches. The probative evidence of record reasonably shows that the Veteran's service-connected disabilities preclude him from securing or maintaining a substantially gainful occupation, considering his work history and education. Accordingly, the evidence is at least evenly balanced as to whether the Veteran is precluded from obtaining and maintaining substantially gainful employment in occupations related to his education, training, and work experience due to his service-connected disabilities. Thus with all reasonable doubt in the Veteran's favor, a TDIU due to service-connected disabilities is granted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.