Citation Nr: 21026670 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-00 174A DATE: May 3, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for temporomandibular joint dysfunction (TMJD) is denied. Entitlement to a higher disability rating of 50 percent prior to January 21, 2021 for unspecified depressive disorder is granted. Entitlement to a disability rating in excess of 70 percent from January 21, 2021 for unspecified depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 21, 2021 is granted. FINDINGS OF FACT 1. The Veteran's service-connected temporomandibular joint dysfunction (TMJD) is manifested by inter-incisal range limited to 21 to 29 millimeters. 2. Prior to January 21, 2021, the severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. 3. From January 21, 2021, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 4. Resolving all reasonable doubt in his favor, the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 20 percent for temporomandibular joint dysfunction (TMJD) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.150, Diagnostic Code 9905. 2. Prior to January 21, 2021, the criteria for entitlement to a higher disability rating of 50 percent for unspecified depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 3. From January 21, 2021, the criteria for entitlement to a disability rating in excess of 70 percent for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 4. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to March 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and December 2015 rating decisions. The Veteran did not request a Board hearing. In August 2019, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Increased Rating 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. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's 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. A Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 1. Entitlement to an initial disability rating in excess of 20 percent for temporomandibular joint dysfunction (TMJD) The Veteran contends that his temporomandibular joint dysfunction (TMJD) warrants an increased rating due to locking, pain, and swelling. The Veteran's TMJ disability is rated by under Diagnostic Code 9905. The applicable rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective September 10, 2017, and the updated schedular criteria are applicable as of that date. See 82 Fed. Reg. 36080 (August 3, 2017). Under the prior schedular criteria for Diagnostic Code 9905, limitation of motion of the TMJD warrants a 10 percent rating if there is limitation of inter-incisal range of motion of 31 to 40 mm; or limitation of range of lateral excursion of 0 to 4 mm. A 20 percent rating is warranted when inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is warranted when inter-incisal range is limited to 11 to 20 mm; and a maximum 40 percent rating is warranted when inter-incisal range is limited from 0 to 10 mm. A note provides that ratings for limited inter-incisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. 38 C.F.R. § 4.150 (2016). Under the updated schedular criteria, inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening; with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrants 40 percent. Inter-incisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent. Inter-incisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent. Inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 30 percent; with dietary restrictions to soft and semi-solid foods warrants 20 percent; without dietary restrictions to mechanically altered foods warrants 10 percent. Lateral excursion range of motion of 0 to 4 mm warrants a 10 percent evaluation. 38 C.F.R. § 4.150 (2018). Notes to the updated criteria state that ratings for limited inter-incisal movement are not combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. Id. At the October 2014 VA examination, the Veteran related that he experiences worsening clicking, pain, and locking up of his jaw. His jaw locks with extreme pain when he tries to open his mouth. It also prevents him from biting completely down when chewing. The Veteran's lateral excursion is greater than 4 millimeters with no pain. Inter-incisal distance was 20 to 30 millimeters with no pain. Range of motion remained the same after repetitive use testing. The examiner noted there are contributing factors of pain, weakness, fatigability, and/or incoordination during flare-ups or repeated use over time. During flare-ups, inter-incisal distance is 25 millimeters and lateral excursion is 5 millimeters. The Veteran relates that he has to cut up his food to eat it. See October 2015 Notice of Disagreement and January 2019 Statement. At nearly every meal his jaw locks up completely and is painful. Id. He is unable to open his mouth until the swelling and pain goes away. Id. Upon VA examination in September 2017, the Veteran relates he has severe pain. He is unable to close his jaw all the way and his teeth do not line up. Flare-ups cause him to wake up. During a flare-up he eats smoothies or something soft. He is unable to eat apples or burgers without cutting the food into small pieces. Inter-incisal distance is 21 to 29 millimeters with pain when opening his mouth and chewing (mastication). Lateral excursion is less than 4 millimeters. There was no additional loss of range of motion upon repetitive use testing. The examiner noted the Veteran does not require mechanically altered foods diet. The Veteran states that his physician had recommended a trial of soft foods in March 2011. See January 2019 Form 9. The January 2021 VA examination reflects the Veteran has worsening popping of his jaw. He uses a mouth guard nightly. When he takes a bite, his jaw locks in the closed position. His jaw needs extreme force to open. The Veteran avoids chewing gum and eating hamburgers, or he has to cut his food into bite size. Inter-incisal distance is 21 to 29 millimeters with no pain. Lateral excursion is greater than 4 millimeters. There was no additional loss of range of motion after three repetitions or during flare-ups. The Veteran does not require a mechanically altered foods diet. The Veteran contends that he is entitled to a higher rating due to the severity of his TMJ disability. As noted above, in October 2014, inter-incisal distance was 20 to 30 millimeters, and in September 2017 and January 2021, the Veteran was found to have an inter-incisal distance of 21 to 29 millimeters after repetitive use. The Veteran's medical records do not indicate a texture-modified diet recorded or verified by a physician. While the Veteran states in March 2011 he was placed on a trial of soft foods by a physician, the evidence of record during the time on appeal does not reflect a texture-modified diet recorded or verified by a physician. Based on the foregoing evidence, the Board finds the preponderance of the evidence is against the grant of a rating in excess of 20 percent. The relevant evidence includes the VA examination reports which did not reveal limitation of temporomandibular articulation which equates to a rating in excess of 20 percent. Consequently, a rating in excess of 20 percent is not warranted. Extraschedular Consideration The Veteran's claim was referred to the Director of Compensation Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). In February 2021, the Director of Compensation Service found that entitlement to an extraschedular rating for TMJ was not warranted. For the following reasons, the Board finds that an extraschedular rating for the TMJ disability is not warranted because the established schedular criteria contemplate the Veteran's symptomatology. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Consideration of an extraschedular rating requires determining whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then extraschedular consideration is warranted. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's TMJ is rated under Diagnostic Code 9905. The record shows that he has complaints and findings of inability to chew gum, eat hard candy, or eat a cheeseburger, apple, or a sandwich unless the food is cut into pieces. Additionally, his jaw locks up completely with pain, and he is unable to open his mouth until the swelling and pain go away. The functional impairment described by the Veteran is contemplated by the rating criteria. The rating criteria need not specifically list every complaint advanced by the Veteran for a finding that the rating criteria contemplate the functional impairment caused by the particular complaint notwithstanding the prior Remand's suggestion to the contrary. Rather, the focus is on the functional impairment caused by the claimed symptom. The Veteran's symptoms result in functional impairment (restricted movement of the jaw) contemplated by the rating criteria. Therefore, the threshold issue under Thun is not met. In any event, in regard to the second Thun element, the disability picture does not exhibit other related factors, such as marked interference with employment or frequent periods of hospitalization. For example, the Veteran's locking jaw is not so severe as to cause marked interference with employment or frequent hospitalizations. The record does not reflect the Veteran's locking jaw or TMJ impact his ability to work. See October 2014 VA examination, September 2017 VA examination, January 2021 VA examination. Therefore, the Board concludes that the Veteran's disability picture does not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization that would warrant further extraschedular consideration. 2. Entitlement to a disability rating in excess of 30 percent prior to January 21, 2021, and in excess of 70 percent thereafter for unspecified depressive disorder The Veteran contends that he is entitled to an increased rating for his service-connected unspecified depressive disorder. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22; 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. Prior to January 21, 2021 The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. VA records, the October 2014 VA examination, and the Veteran's lay statements show that the Veteran's unspecified depressive disorder was manifested by symptoms associated with a 30 percent rating including depressed mood, anxiety, mild memory loss, and chronic sleep impairment, and symptoms associated with a 50 percent rating including disturbances of motivation and mood, panic attacks more than once a week, and difficulty in establishing and maintaining effective work and social relationships. He also had symptoms that are not listed with a specific rating, such as decreased libido, fatigability, and irritability. The October 2014 VA examiner found 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 is in his current marriage since 2001 and enjoys positive relationships with the kids. He has some friends in a drag racing club. The September 2017 VA examiner found the Veteran has 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 Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. VA treatment records reflect the Veteran consistently presents to mental health treatment visits adequately dressed and groomed. He is cooperative with the examiner and oriented to person, time, place, and situation. He has logical thought processes and no hallucinations or delusions. His memory is grossly intact. Further, decreased libido, fatigability, and irritability are similar to depressed mood, chronic sleep impairment, and suspiciousness, which are contemplated by a 30 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. The Veteran's spouse reported the Veteran expressed suicidal ideation only once during a period of six years in January 2019, and the Veteran denied suicidal ideation in existing treatment records, and during the October 2014 and September 2017 VA examinations. Additionally, the examiner found that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Mental status examinations in VA and private treatment records and the October 2014 and September 2017 VA examinations indicate that the Veteran had an anxious mood. His speech was normal in rate, volume, and tone. He was oriented to person, time, place, and situation. He had no delusions, hallucinations, or delusions. His judgment and memory were intact. During the September 2017 VA examination, the Veteran reported that he has problems sleeping, is depressed, has panic attacks a few times a week, and has decreased concentration. The Veteran, however, also experienced symptoms contemplated by a 50 percent rating disturbances of motivation and mood, panic attacks more than once a week, and difficulty in establishing and maintaining effective work and social relationships. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. Resolving reasonable doubt in favor of the Veteran, the Board finds that his symptoms more nearly resulted in the level of impairment required for a 50 percent rating. From January 21, 2021 The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA and the January 2021 VA examination, and the Veteran's lay statements show that the Veteran's unspecified depressive disorder was manifested by symptoms associated with a 70 percent rating including difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and impaired impulse control, such as unprovoked irritability with periods of violence, and symptoms associated with a 100 percent rating such as intermittent inability to perform activities of daily living. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The January 2021 VA examination revealed the Veteran was alert and oriented to person, place, situation, and time. The Veteran's receptive language and expressive language appeared to be adequate. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The Veteran denied any history of suicidal ideation or homicidal attempts. See January 2021 VA examination. He denied experiencing hallucinations or delusions presently or in the past. Id. The Veteran's mental status examination revealed the Veteran demonstrated adequate attention and concentration, as well as adequate social skills. Id. General thought processes appeared to be overly detailed. Id. Judgment related to self-care and social problem-solving appeared to be adequate. Id. The examiner noted the Veteran understands personal safety, solution-focused ideas, and social interactions. Id. The examiner noted the Veteran is capable of managing his financial affairs. Id. While the Veteran did experience symptoms contemplated by a 100 percent rating intermittent inability to perform activities of daily living the evidence overall does not persuasively demonstrate the level of impairment associated with a 100 percent rating. Neglect of personal appearance and hygiene is contemplated in a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. The January 2021 VA examination reports that the Veteran has been married to his wife since 2001 and displayed adequate social skills. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent are not met and the appeal must be denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities prior to January 21, 2021 (TDIU) The Veteran seeks a TDIU. He contends his service-connected disabilities render him unemployable. He is currently in receipt of a combined rating of 100 percent effective January 21, 2021. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, 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); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to January 21, 2021, the Veteran has the following disabilities that are service connected: migraines (rated 50 percent, from April 1, 2015); urinary incontinence with hematuria (rated 40 percent, from April 1, 2015); unspecified depressive disorder (rated 50 percent, from April 1, 2015 as the result of this decision); nonspecific colitis (rated 30 percent, from October 30, 2015); temporomandibular joint dysfunction (rated 20 percent, from April 1, 2015); right shoulder strain (rated 10 percent, from April 1, 2015); lumbar spine strain with intervertebral disc syndrome (IVDS) (rated 10 percent, from April 1, 2015); bilateral tinnitus (rated 10 percent, from April 1, 2015); and left knee patellofemoral syndrome, right knee patellofemoral syndrome, right ankle tendonitis, left ankle tendonitis, residuals of left first toe fracture, allergic rhinitis, erectile dysfunction, onychomycosis, and left leg external cutaneous nerve radiculopathy (each rated noncompensable, from April 1, 2015). The Veteran's combined evaluation for compensation is 90 percent from April 1, 2015. Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran earned a bachelor's degree in Professional Aeronautics in 2011. See September 2017 VA examination. He worked for the United States Air Force from July 1994 to March 2015. See November 2015 VA 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. His job was in Aircraft Structural Maintenance. See September 2017 VA examination. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his service-connected migraine headaches and lumbar spine strain. The Veteran reports his migraines are not improved by medication and keep him from sleeping at night. See June 2016 VA Treatment Record. The Veteran's spouse relates the Veteran experiences horrible migraine headaches at least twice a week. See January 2019 Lay Statement. The Veteran's daily life is interrupted constantly. Id. He is unable to drive or do anything other than lay in bed during a migraine episode. Id. The Veteran has had to cancel and reschedule over 50 percent of his medical and mental health appointments due to his prostrating migraines. See January 2019 VA Form 9. The Veteran's VA treatment records reflect several cancelled and missed appointments. The October 2017 VA examiner found the Veteran's acute, severe episodes of migraine headaches cause intermittent impairment of the Veteran's ability to perform physical and sedentary activities of employment. The Veteran's spouse states the Veteran has back spasm attacks which completely incapacitate him. See January 2019 Lay Statement. The Veteran is unable to sit or stand for long periods of time due to his back pain. See January 2019 VA Form 9. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his service-connected unspecified depressive disorder. The Veteran's unspecified depressive disorder manifests through panic attacks, mild memory loss, chronic sleep impairment, and disturbances of motivation and mood. See September 2017 VA examination. The Veteran relates his irritability, restlessness, panic attacks, marked anxiety, and reduced concentration make it impossible to work in any type of office environment. See January 2019 VA Form 9. Given the forgoing, the Veteran's service-connected disabilities preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. The Veteran's migraine headaches cause absenteeism and cancelled appointments. The Veteran's lumbar strain renders him unable to sit or stand for long periods of time. The Veteran's unspecified depressive disorder cause mental impairments limiting the Veteran's ability to maintain employment. Accordingly, a TDIU is warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.