MAJOR DEPRESSIVE DISORDER

Summary

The Veteran, who served in the U.S. Army from August 2008 to September 2008, appeals the denial of an increased disability rating for an acquired psychiatric disorder and the denial of Total Disability based on Individual Unemployability (TDIU). The Veteran is currently rated at 70% for a mental health condition, with claims for migraines at 50%, tinnitus at 10%, and other conditions at 0%. The Board reviewed a private medical opinion from November 2024, which described severe symptoms potentially supporting a 100% rating, and a VA examination from February 2025, which noted more moderate symptoms and found the Veteran cooperative but with a dysthymic mood and flat affect. The VA examiner noted symptoms that could support a 50% or 70% rating but did not find total occupational and social impairment. VA treatment records from 2025 indicated a stable mental status. The Board found the objective evidence, including the VA examination and treatment records, outweighed the Veteran's subjective assertions and the private opinion's more severe symptomology, concluding that the criteria for a 100% rating were not met due to a lack of total occupational and social impairment. For the TDIU claim, the Board considered the Veteran's part-time employment history and statements, finding that her service-connected disabilities, while causing some limitations, did not render her unable to maintain substantially gainful employment. The Board denied both the increased rating for the psychiatric disorder and the TDIU claim.

Rationale

Objective clinical findings and VA treatment records outweigh subjective assertions of total impairment.; No evidence of total social and occupational impairment as required for 100% rating.; Symptoms did not demonstrate gross impairment in thought processes, communication, or daily living activities.

Full Decision Text

Citation Nr: A26037518
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 250927-593362
DATE: April 22, 2026

ORDER

Entitlement to an disability rating greater than 70 percent for an acquired psychiatric disorder (major depressive disorder claimed as depressive disorder with anxious distress) is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.

FINDING OF FACT

1. The Veteran's acquired psychiatric disorder is not shown to be productive of a disability picture that more nearly approximates total occupational and social impairment.

2. The evidence of record throughout the appeal period does not support that the Veteran is unemployable by reason of her service-connected disabilities.

CONCLUSION OF LAW

1. The criteria for a disability rating greater than 70 percent for an acquired psychiatric disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434.   

2. The criteria for entitlement to TDIU have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 2008 to September 2008. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2025 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).  

In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.  Therefore, the Board may only consider the evidence of record at the time of the June 2025 rating decision on appeal.  38 C.F.R. § 20.301.  Any evidence submitted after the RO decision on appeal cannot be considered by the Board.  38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board notes that since the Veteran filed her notice of disagreement, the RO has granted her a 70 percent disability rating for her mental health condition with an effective date of May 29, 2024, the date of her intent to file submitted prior to the current claim.  

Increased Ratings

Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4.  When rating a service-connected disability, the entire history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).

The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.  

1. Entitlement to a disability rating greater than 70 percent for the Veteran
 may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009).

The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.  

1. Entitlement to a disability rating greater than 70 percent for the Veteran's acquired psychiatric condition is denied.

The Veteran is currently assigned a 70 percent disability rating for her acquired psychiatric condition but asserts that she is entitled to an increased disability rating for her condition.  See September 2025 Notice of Disagreement.  

Disability ratings for psychiatric disorders are assigned pursuant to the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.  The Veteran's acquired psychiatric condition is currently evaluated under Diagnostic Code (DC) 9434.  

Under DC 9434, a 10 percent rating is prescribed when there is evidence of occupational and social impairment due to mild or transient symptoms which decrease work efficiently and ability to perform occupational task only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent rating is prescribed when there is evidence of 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, or mild memory loss (such as forgetting names, directions, and recent events).

A 50 percent rating is prescribed when there is evidence of 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 judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is assigned when there is evidence demonstrating 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, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships.

Important for this case, 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 and place, memory loss for names of close relatives, own occupation, or own name. 

Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating and are not intended to constitute an exhaustive list.  See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002).  The list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013).  In Vazquez-Claudio, the Federal Circuit held "that 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."  Id. at 117.  Other language in the decision indicates 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. at 116.  

Further, when evaluating a mental disorder, 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
2013).  In Vazquez-Claudio, the Federal Circuit held "that 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."  Id. at 117.  Other language in the decision indicates 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. at 116.  

Further, when evaluating a mental disorder, 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," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination."  38 C.F.R. § 4.126(a).

The Veteran submitted a private medical opinion dated November 2024.  See December 2024 Disability Benefits Questionnaire (DBQ) - Veteran Provided (Private Opinion).  The examiner noted that the Veteran's symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; impaired judgment; impaired abstract thinking; gross impairment and thought process or communication; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living.  Based on her reported symptoms, the examiner opined that the Veteran would have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.

The Veteran also underwent a VA examination regarding her mental health in February 2025.  The examiner noted that the Veteran was oriented to person, place, and time; she was dressed appropriately; she was cooperative with good eye contact; her mood was dysthymic with flat affect; and her speech was monotone.  The Veteran had no difficulty expressing ideas, her thoughts were linear and logical, she was attentive to questions, she gave thought prior to responses, she was not distracted; and memory was intact.  

Finally, the Veteran denied suicidal or homicidal ideations, she denied overt delusional thoughts, and she denied experiencing auditory or visual hallucinations.   

The examiner noted symptoms including:  depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence.

Overall, the examiner found that the Veteran's psychiatric symptoms were productive of occupational and social impairment with reduced reliability and productivity.

Additionally, VA treatment records from 2025 show that the Veteran's mental status was stable.  See CAPRI Records - 2025.  

Based on the evidence of record, the Board finds that the criteria for a 100 rating were not met at any time during the period on appeal, as the evidence does not reflect total social and occupational impairment.  Although the Veteran experienced various mental health symptoms, there is no evidence of total social and occupational impairment as a result of her psychiatric symptoms.  The observations from the February 2025 VA examiner regarding her mental state, the VA treatment records showing her mental status has been stable, and the private opinion from November 2024 demonstrate that she is coherent, is able to communicate, and is able to take care of household chores most of the time, with help from her husband, mother, and sister.      

More importantly, none of the health care providers or the examiners who examined the Veteran determined that her psychiatric symptoms were productive of total social and occupational impairment.  

In sum, although the Veteran endorsed increased mental health symptoms, the most probative evidence is against a finding that the Veteran's psychiatric symptomatology more nearly approximated total occupational and social impairment, such that a schedular 100 percent rating is warranted.

The Board has considered the contentions from the Veteran regarding the severity of her psychiatric disorder; however, the objective clinical findings outweigh the subjective assertions of the Veteran as to whether she had total social and occupational impairment due to her psychiatric disorder.

The Board also notes that the private opinion from November 2024 does
, mother, and sister.      

More importantly, none of the health care providers or the examiners who examined the Veteran determined that her psychiatric symptoms were productive of total social and occupational impairment.  

In sum, although the Veteran endorsed increased mental health symptoms, the most probative evidence is against a finding that the Veteran's psychiatric symptomatology more nearly approximated total occupational and social impairment, such that a schedular 100 percent rating is warranted.

The Board has considered the contentions from the Veteran regarding the severity of her psychiatric disorder; however, the objective clinical findings outweigh the subjective assertions of the Veteran as to whether she had total social and occupational impairment due to her psychiatric disorder.

The Board also notes that the private opinion from November 2024 does indicate more severe symptoms, which could support an increased rating.  However, while the examiner noted more severe symptoms, they did not indicate that the Veteran had total social and occupational impairment due to her psychiatric disorder.  Additionally, the subsequent VA evaluation and VA treatment records do not support the same severity of symptoms or total social and occupational impairment.  In fact, not all evidence in this case supports the current evaluation.

In absence of evidence of 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; inftermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place, or similar symptomatology of such frequency, duration, or severity, the Board finds that the criteria for a 100 percent rating have not been demonstrated.  There is no evidence of memory loss for names of close relatives, or her own name, persistent delusions or hallucinations.  The evidence does not show gross inappropriate behavior or gross impairment in communication.  Her thought processes did not demonstrate gross impairment.  Therefore, the Board finds that the evidence did not more nearly approximate the criteria for a rating of 100 percent and a rating greater than 70 percent is denied.

This finding does not suggest, in any way, that the Veteran does not have problems with her disability; a 70 percent disability will cause the Veteran many problems.  The only question is the degree.  

Accordingly, a rating higher than 70 percent for an acquired psychiatric disorder is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to a TDIU.

The Veteran contents that she is unemployable due to her service-connected disabilities.  See September 2025 Notice of Disagreement.  

While the included TDIU in her notice of disagreement, the Board notes that the rating decision which denied TDIU was dated September 17, 2024 and delivered to the Veteran on September 19, 2024.  See September 2024 Rating Decision - Narrative; September 2024 Notification Letter (e.g. VA 20-8993, VA 21-0290, PCGL).  

The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  

Despite being her appeal of TDIU being untimely, the Board finds that the issue of employability has been reasonably raised by the record under Rice, and will address the issue.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a).  

Entitlement to a 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 his/her age or to the impairment caused by nonservice-connected disabilities.  38 U
 disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a).  

Entitlement to a 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 his/her age or to the impairment caused by 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).  

It is important for the Veteran to understand that the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU.  See Van Hoose v. Brown, 4 Vet. App. 361.  

In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue.  31 Vet. App. 58, 73 (2019).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his/her age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  However, this difficulty due to his/her service-connected disabilities is not, in and of itself, sufficient to warrant a TDIU.  See Van Hoose v. Brown, 4 Vet. App. 361, Ray, supra.

The Veteran is rated for the following service-connected disabilities:

"	Major depressive disorder rated 70 percent disabling from May 29, 2024.  

"	Migraine headaches rated 50 percent disabling from May 2, 2019.

"	Tinnitus rated 10 percent disabling from July 22, 2010.

"	Tympanic membrane perforation, left ear, rated 0 percent disabling from July 22, 2010.

"	Hearing loss, left ear, rated 0 percent disabling from May 2, 2019.

The records show that the Veteran graduated from high school in 2008 and has an associate's degree.  See November 2024 Disability Benefits Questionnaire (DBQ) - Veteran Provided.

In September 2024, the Veteran reported that she was working as a temp doing computer work.  See September 2024 CAPRI Records.   

During the February 2025 VA examination, she reported working part-time with a temp agency for 2 years, and her most recent job assignment involved monitoring computers while people take tests. She indicated she works in person, but only a couple hours at a time, and she calls out two to three times a week due to migraines.  She stated that she has never had a full-time job and most of her time was spent as a homemaker for the past 12 years. 

The Board finds that, while the Veteran has reported symptoms which interfere with employment, nothing in the records and examinations demonstrates that her service-connected disabilities render her unable to maintain gainful employment.  If fact, the Veteran's statements about working part time undermine the Veteran's claim. 

Although the Veteran's service-connected disabilities were productive of some occupational limitations, the objective medical evidence, to include the VA treatment records, as well as the lay evidence, does not support a finding that the Veteran's service-connected disabilities precluded her from gainful employment, and collectively provide highly probative evidence against this claim.

Again, the most competent, credible, and probative evidence in this case indicates that there is insufficient evidence to substantiate that the Veteran service-connected disabilities rendered her unable to obtain and maintain substantially gainful employment at any point during the period on appeal  and does provide some evidence against this claim.  As such, this claim is denied.  See