DEPRESSIVE DISORDER DUE TO ANOTHER MEDICAL CONDITION

CORY M. PICTON · 2026 · Case ID: A26039580

MIXED

Summary

The Veteran, who served in the United States Navy from May 1975 to May 1995, appeals the denial of an increased disability evaluation for his depressive disorder due to chronic pain and the denial of Total Disability based on Individual Unemployability (TDIU). The Veteran sought an evaluation higher than 50 percent for his depressive disorder prior to June 17, 2024, and higher than 70 percent thereafter. The Board reviewed medical evidence from both VA and private sources, including a January 2022 private psychiatric evaluation and a February 2022 VA examination. The Board found the February 2022 VA examination to be the most probative evidence, concluding that the Veteran's symptoms, while significant, did not meet the criteria for a 70 percent rating prior to June 17, 2024, and did not meet the criteria for a 100 percent rating thereafter. The Board noted inconsistencies in the Veteran's reported employment history and the credibility of his statements regarding his symptoms and limitations, particularly when comparing his testimony and submitted forms. Regarding TDIU, the Board considered the Veteran's combined service-connected disabilities, including depressive disorder, lumbosacral sprain, bilateral lower extremity radiculopathy, and tinnitus. Despite the Veteran not submitting a specific VA form for unemployability and providing inconsistent information, the Board resolved doubt in his favor, concluding that the combined effects of his service-connected disabilities rendered him unable to secure or follow substantially gainful employment throughout the appeal period. Therefore, the Board granted entitlement to TDIU.

Rationale

Symptoms prior to June 17, 2024, more closely approximated a 50 percent rating.; Symptoms since June 17, 2024, did not meet criteria for 100 percent rating.; VA examiner's opinion found more probative due to consistency and rationale.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

251010-598456

Full Decision Text

Citation Nr: A26039580
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 251010-598456
1DATE: April 28, 2026

ORDER

Entitlement to an initial evaluation in excess of 50 percent for depressive disorder due to chronic pain, prior to June 17, 2024, is denied.

Entitlement to an evaluation in excess of 70 percent for depressive disorder due to chronic pain, since June 17, 2024, is denied.

Entitlement to individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. Prior to June 17, 2024, the severity, frequency, and duration of the Veteran's depressive disorder due to chronic pain symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas.

2. Since June 17, 2024, the severity, frequency, and duration of the Veteran's depressive disorder due to chronic pain symptoms did not more closely approximate total occupational and social impairment.

3. Throughout the course of this appeal, the combined effects of the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an initial evaluation in excess of 50 percent for depressive disorder due to chronic pain, prior to June 17, 2024, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435.

2. The criteria for an evaluation in excess of 70 percent for depressive disorder due to chronic pain, since June 17, 2024, were not 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. The criteria for entitlement to TDIU have been met. 38?C.F.R. §§?3.340, 3.341, 4.15, 4.16, 4.19, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from May 1975 to May 1995. For his meritorious service, the Veteran was awarded (among other decorations) an Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon (3rd Award), Navy and Marine Corps Overseas Service Ribbon, and Meritorious Unit Commendation.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2024 and November 2024 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

A. October 2024 Rating Decision

The October 2024 rating decision granted an increased evaluation of 70 percent for the Veteran's depressive disorder due to chronic pain, effective June 17, 2024. In his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran contested the evaluation assigned to the Veteran's depressive disorder due to chronic pain, both prior to and since June 17, 2024. The Veteran also elected the Hearing docket for this appeal.

A Board hearing was held on February 10, 2026. Therefore, the Board may only consider the evidence of record at the time of the October 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

B. November 2024 Rating Decision

The November 2024 rating decision denied entitlement to TDIU. In his Notice of Disagreement, the Veteran elected the Hearing docket for this appeal. A Board hearing was held on February 10, 2026. Therefore, the Board may only consider the evidence of record at the time of the November 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following
than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

B. November 2024 Rating Decision

The November 2024 rating decision denied entitlement to TDIU. In his Notice of Disagreement, the Veteran elected the Hearing docket for this appeal. A Board hearing was held on February 10, 2026. Therefore, the Board may only consider the evidence of record at the time of the November 2024 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

At his February 2026 Board hearing, the Veteran requested and was granted an advance on docket based upon his age for his appeal. During the hearing, the Veteran's representative indicated that additional evidence would be submitted in support of the Veteran's claim; and that evidence, including a January 2026 private psychiatric evaluation and an employment history report, was submitted later that same month, along with a waiver of this evidence by the AOJ. Thus, from all accounts it appears the Veteran is ready for this matter to be considered and the Board shall proceed with the adjudication of this appeal. See Clark v. O'Rourke, 30 Vet. App. 92, 97-98 (2018) (allowing waiver of a right to a particular time period for submission of evidence to be waived if there is "a voluntary, knowing, and intentional waiver of that right").

1. Entitlement to an initial evaluation in excess of 50 percent for depressive disorder due to chronic pain, prior to June 17, 2024.

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to them. See Timberlake v. Gober, 14 Vet. App. 122,
's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to them. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In March 2022, the RO issued a rating decision granting service connection at an initial evaluation of 50 percent for depressive disorder due to chronic pain, effective February 2, 2022. In October 2024, the RO issued a rating decision granting an increased evaluation of 70 for depressive disorder due to chronic pain, effective Jun 17, 2024.

The Veteran contends that he is entitled to an initial evaluation in excess of 50 percent for his depressive disorder due to chronic pain, from February 2, 2022, to June 17, 2024; followed by an evaluation in excess of 70 percent, since June 17, 2024.

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 (2017); 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).

The first issue in this appeal is whether, prior to June 17, 2024, the symptoms associated with the Veteran's depressive disorder due to chronic pain caused the level of impairment required for an initial evaluation of 70 percent or higher.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for an evaluation of 70 percent or higher at any point prior to June 17, 2024. Prior to June 17, 2024, the symptoms associated with the Veteran's depressive disorder due to chronic pain more closely approximated the symptoms associated with a 50 percent evaluation.

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:
.

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.

A January 2022 private medical examination report concluded with a diagnosis of depressive disorder due to chronic pain syndrome, with major depressive-like episode. The examination report noted the Veteran's symptoms of depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; near-continuous pain or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss; impairment of short- and long-term memory; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; flattened affect; circumstantial, circulatory, or stereotyped speech; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in understanding complex commands; intermittent inability to perform activities of daily living; impaired impulse control; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; and grossly inappropriate behavior.

The Veteran indicated that he resides with his spouse of twenty-one years. He reported being irritable and moody, and that he isolates himself from friends. He reported being more outgoing and sociable prior to the onset of pain. He also indicated that he attends social events less frequently than he used to; and that he has not been able to engage in hobbies, such as running, jogging, or scuba diving.

The Veteran reported that he retired in 2017 from his position as an assistant manager at a UPS store. He indicated that his physical pain caused emotional and functional challenges at work, leading to irritability and arguments with coworkers. The Veteran indicated that he has never engaged in behavioral health services, nor has he been prescribed psychotropic medications. He denied having any visual or auditory hallucinations.

Mental status examination revealed the Veteran to be neat in appearance and casually dressed. His posture was relaxed and affect flattened, with little animation shown. Speech was clear and conversation was circumstantial and tangential at times, necessitating redirection. He did have some difficulty recalling information, and his mood appeared dysthymic. He denied suicidal and homicidal ideation. The private examiner opined that overall, the Veteran has been experiencing a persistent degree of depression and anxiety following the onset of his service-connected pain symptoms. Additionally, there are cognitive consequences to pain and mood disturbance.

In February 2022, the Veteran underwent a VA examination for mental disorders. The VA examiner noted that the Veteran's claims file had been reviewed, and noted the Veteran's contentions as to the severity of this condition. The report listed a diagnosis of depressive disorder due to chronic pain, with depressive features. The report noted that the Veteran had completed a Bachelor of Arts degree in the mid-1980s. Following his retirement from the military, he worked for several years at UPS. He stopped working entirely in 2017 largely because of physical debility. He reported having some friends, but that he does self-isolate and avoids social gatherings. He reported being irritable at times, but his friends and wife are very understanding. He also reported having difficulty sleeping, poor memory, and being easily distracted.

The examiner noted that the Veteran arrived on time and was appropriately dressed for the examination. He displayed an appropriate range of affect, and his mood was congruent with the topics discussed. He had logical and linear thought processes, and did not reflect any indication of psychosis. Mental status examination revealed depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or work like settings; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The VA examiner opined that overall, the Veteran's mental disorder was manifested by occupational and social impairment
very understanding. He also reported having difficulty sleeping, poor memory, and being easily distracted.

The examiner noted that the Veteran arrived on time and was appropriately dressed for the examination. He displayed an appropriate range of affect, and his mood was congruent with the topics discussed. He had logical and linear thought processes, and did not reflect any indication of psychosis. Mental status examination revealed depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or work like settings; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The VA examiner opined that overall, the Veteran's mental disorder was 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 normal behavior, self-care and conversation. In rendering this opinion, the VA examiner physically examined the Veteran and also supported opinion provided with sufficient rationale.

VA treatment reports, dated September 2021 and October 2022, noted findings of negative depression screens. The treatment reports also noted that the Veteran denied having any homicidal or suicidal ideations.

A December 2023 private physician letter noted that the Veteran's psychiatric impairment, which was not specified anywhere in the letter, was manifested by memory loss; deficiencies in family relations; persistent irrational fears; persistent danger of hurting self or others; deficiencies in work or school; depression affecting the ability to function independently, appropriately, and effectively; neglect of personal appearance and hygiene; intermittent ability to perform activities of daily living; deficiencies in mood; difficulty in adapting to stressful circumstances; disorientation to time or place; unprovoked hostility and irritability; and deficiencies in judgment. The private examiner opined that the Veteran would be unable to perform gainful employment with the symptoms and limitations stemming from his service-connected psychiatric impairment.

Treatment records, the January 2022 and December 2023 private evaluations, the February 2022 VA examination, and the Veteran's lay statements show that his depressive disorder due to chronic pain was manifested by symptoms associated with a 30 percent rating (i.e., depressed mood, anxiety, chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), a 50 percent rating (i.e. 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; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating (i.e., 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).

The Veteran also had symptoms that are not listed with a specific rating, such as restlessness and racing thoughts. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126.

The Board concludes that the level of impairment caused by the Veteran's psychiatric symptoms overall, prior to June 17, 2024, more closely approximates the level associated with a 50 percent rating. In making this determination, the Board finds the February 2022 VA examiner's opinion to be the most probative evidence here. As noted above, the February 2022 VA examiner opined that overall, the Veteran's depressive disorder due to chronic pain was 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 normal behavior, self-care and conversation. In reaching this conclusion, the VA examiner reviewed the Veteran's claims file, considered the Veteran's contentions as to the severity of this condition, physically examined the Veteran, and also supported the opinion provided with sufficient rationale.

The January 2022 private examiner noted that all available medical evidence was reviewed, but failed to indicate just what records that included. The report stated that the rationale for its medical opinion was "[p]er veteran interview and medical record review and recent mental health evaluation (if provided)." As noted in the private evaluation report, the Veteran denied having ever received behavioral health services, or having ever been prescribed psychotropic medications. Thus, it appears the report was based solely on the Veteran's interview.

The January 2022 private report noted that the Veteran retired in 2017 and last worked as an assistant manager at UPS. At his February 2026 Board hearing, the Veteran testified that he worked as an Uber driver until 2021. On an employment history form, submitted in February 2022, the Veteran reported that he attempted to obtain employment with Uber in October 2017, with no mention of having ever worked for him.

The January 2022 private treatment report also noted that the Veteran reported taking off work on account of his pain. On his February 2022 employment history, he did not report having to miss any work due to his disabilities.

Thus, the Veteran's contentions concerning his employment history have not been consistent and are not credible.

The Board also finds little probative value in the December 2023 private examiner's opinion letter. The opinion letter does not reference any employment or educational history of the Veteran. It also does not indicate what, if any, records were reviewed in rendering this opinion. Although the physician noted that he treats the Veteran quarterly, the report does not indicate how long this has been ongoing and what conditions he is treating the Veteran for. No actual treatment records were provided. Moreover, while the December 2023 letter lists generic symptoms, it does not provide any factual basis for any of these findings. Finally, the report does not even specify a diagnosis for the Veteran's "psychiatric impairment."

While the Veteran did experience symptoms contemplated by a 70 percent rating (i.e., spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting) the evidence overall does not demonstrate the level of impairment associated with that evaluation prior to June 17, 2024. In other words, these symptoms did not occur with the frequency, severity, and duration capable of producing occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran's VA treatment records and his February 2022 VA examination reflect a significantly less severe condition. VA treatment records in September 2021 and October 2022 noted negative depression screens. On both occasions, the Veteran denied feeling down, depressed, or hopeless; or having little interest or pleasure in doing things. The October 2022 VA treatment report noted that the veteran denied depression and anxiety and denied having difficulty with anger.

In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 evaluation at any point prior to June 17, 2024. Accordingly, entitlement to an initial evaluation in excess of 50 percent for depressive disorder due to chronic pain, prior to June 17, 2024, is denied.

2. Entitlement to an evaluation in excess of 70 percent for depressive disorder due to chronic pain, since June 17, 2024.

The Veteran is seeking an increased evaluation in excess of 70 percent for his depressive disorder due to chronic pain, since June 17, 2024.

The issue in this appeal is whether the symptoms associated with the Veteran's depressive disorder due to chronic pain caused the level of impairment required for a disability evaluation of 100 percent at any point since June 17, 2024.

The Board concludes that the Veteran's symptoms, both listed and unlisted, did not cause the level of impairment
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).

The Board concludes that the Veteran's symptoms, both listed and unlisted, did not cause the level of impairment required for a disability evaluation of 100 percent. The Veteran's symptoms more closely approximate the symptoms associated with a 70 percent evaluation, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent evaluation.

A June 2024 statement from the Veteran's wife noted that he was a responsible and loving husband, who is willing to help her in every way he can. She indicated that the Veteran has suffered with physical and emotional pain through the years. In the past three to four years, he has become increasingly short tempered and easily provoked. In the past few months, she reported he has been having nightmares and talks/shouts in his sleep.

In October 2024, the Veteran underwent a VA examination for mental disorders. The VA examiner noted that the Veteran's claims file had been reviewed, and noted the Veteran's contentions as to the severity of this condition. The Veteran reported having depressed mood with anhedonia, fatigue, sleep impairment, low energy, and suicidal ideation on a monthly basis. The VA examiner noted that the Veteran underwent knee replacement surgery earlier that same year, which has resulted in a significant increase in pain while also limiting mobility and his ability to exercise, which has exacerbated depression symptoms. His difficulties with mood have also caused strain in a relationship with his wife, who the Veteran is heavily dependent on for social support resulting in increased isolation.

The report listed a diagnosis of depressive disorder due to chronic pain with depressive features. The report noted that his symptoms include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and neglect of personal appearance and hygiene. The VA examiner also noted that the Veteran was casually dressed, cooperative, and appeared well-groomed. He had a neutral mood/affect through most of the examination, although became tearful at times describing the impact of his behavior on his wife and he appeared remorseful.

The VA examiner opined that overall, the Veteran's depressive disorder due to chronic pain with depressive features was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

At his February 2026 Board hearing, the Veteran testified that his depressive disorder due to chronic pain was manifested by irritability, anger, poor hygiene, suicidal thoughts (two to three times a month at times), difficulty concentrating and staying focused, forgetfulness, nightmares, and difficulty sleeping. He testified that his social functioning was limited because he tries to avoid parties and get togethers.

The Veteran indicated that he graduated from college with a Bachelor of Science and Business degree. He indicated that he last worked in 2017 at a UPS store. After that, he reported driving for Uber until 2021. He indicated that he was currently receiving Social Security based upon his age, not disability. He testified that his depressive
February 2026 Board hearing, the Veteran testified that his depressive disorder due to chronic pain was manifested by irritability, anger, poor hygiene, suicidal thoughts (two to three times a month at times), difficulty concentrating and staying focused, forgetfulness, nightmares, and difficulty sleeping. He testified that his social functioning was limited because he tries to avoid parties and get togethers.

The Veteran indicated that he graduated from college with a Bachelor of Science and Business degree. He indicated that he last worked in 2017 at a UPS store. After that, he reported driving for Uber until 2021. He indicated that he was currently receiving Social Security based upon his age, not disability. He testified that his depressive disorder and low back and bilateral lower extremity disabilities have a negative impact on his ability to work. He reported being unable to stand or walk for extended periods of time, and unable to do strenuous activities. When asked about filing a VA unemployability form, the Veteran's representative indicated that they would soon submit their own form with this information.

In February 2026, the Veteran submitted a private form addressing his unemployability. On the form, the Veteran indicated that his service-connected depressive disorder, lumbosacral strain, and bilateral lower extremity radiculopathy prevented him from securing or following any substantially gainful occupation. He indicated that he last worked at UPS Store in California beginning in April 2014, and that he became too disabled to work in June 2017. Prior to that, he started working at a UPS in Carson, California, beginning in March 2012. The report did not indicate that any time was lost due to illness in either position. The Veteran also reported having attempted to obtain employment with Uber in October 2017; although no actual employment was indicated. The Veteran reported that he had completed four years of college, but the form was silent as to what type of education or training was obtained, what school was attended, or what, if any, degree was obtained.

The Veteran also submitted a private psychiatric evaluation, dated in January 2026. The evaluation report noted that the Veteran was married to his second wife in 2001, and that they remain married. He indicated that he has two children from his first marriage, and that he maintains a strong relationship with both of them.

Following his discharge from the service, the Veteran worked as a welder for a ship building company. He indicated that this work was too painful for him due to multiple previous injuries and as a result of a fall in 1996, he began working as a mailman. After getting a degree, he began working as a manager for a UPS store owned by his brother in 2012. He later moved to California, where he managed another UPS store. He reported having a significant injury to his right knee while working at the UPS store, and that he continues to experience significant and consistent pain due to this injury. The report noted that he retired from UPS in 2017 as he was no longer able to perform any of the duties required of him; and his low mood and constant fatigue impacted his ability to complete work.

The Veteran indicated that he can independently complete all activities of daily living, but that they have become significantly more difficult because of the pain he experiences. He indicated that it can take him over an hour to get himself dressed, and that he often goes days in between showers.

The report noted that the Veteran logged in early for the appointment, appropriately dressed and groomed. He presented as depressed with blunted affect and episodes of tearfulness. His mood was sad and low, and he reported passive suicidal ideation in recent years. He also reported and displayed issues with concentration and focus, as he required redirection and reminder of the topic on multiple occasions.

The private examiner diagnosed the Veteran with depressive disorder due to another medical condition. The examiner then opined that the Veteran experiences total occupational and social impairment with deficiencies in all areas of his life due to his symptoms, which include constant irritability, anhedonia, fatigue, issues with concentration and memory loss, moderate impairment in communication and thought processes, and significant impairment impacting his ability to work with colleagues and supervisors. The examiner noted that the Veteran was not receiving psychological treatment, and his prognosis was poor.

The evidence overall does not demonstrate the level of impairment associated with a 100 percent evaluation at any point since June 17, 2024.

The October 2024 VA examiner opined that the Veteran's depressive disorder due to chronic pain was manifested overall by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This severity level warrants assignment of a 70 percent disability evaluation. See 38 C
anhedonia, fatigue, issues with concentration and memory loss, moderate impairment in communication and thought processes, and significant impairment impacting his ability to work with colleagues and supervisors. The examiner noted that the Veteran was not receiving psychological treatment, and his prognosis was poor.

The evidence overall does not demonstrate the level of impairment associated with a 100 percent evaluation at any point since June 17, 2024.

The October 2024 VA examiner opined that the Veteran's depressive disorder due to chronic pain was manifested overall by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This severity level warrants assignment of a 70 percent disability evaluation. See 38 C.F.R. § 4.130, General Formula. In reaching this conclusion, the VA examiner noted that the Veteran's claims file had been reviewed, and noted the Veteran's contentions as to the severity of this condition. The VA examiner physically examined the Veteran and also supported opinions provided with sufficient rationale. As such, the Board finds this to be the most probative evidence of record as to the severity of the Veteran's depressive disorder due to chronic pain, since June 17, 2024.

The February 2026 private examiner concluded that the Veteran's depressive disorder due to another medical condition was manifested by total social and occupational impairment with deficiencies in all areas of his life due to his symptoms. The Board, however, finds this opinion to be less probative than the VA examiner's conclusion. There are multiple inconsistencies noted in the Veteran's reported history during this examination. Specifically, the private examiner noted that the Veteran had been retired since 2017. At his Board hearing, however, the Veteran testified that he worked for Uber until 2021. On an employment history form, submitted by the Veteran in February 2026, he reported having only applied for a position with Uber in October 2017. No actual position was indicated. Moreover, although asked by the form, the Veteran did not report having missed any time from illness while working for UPS. Thus, the Veteran's contentions as to his employment history are at best inaccurate and not credible.

Concerning his educational background, the private examiner noted that the Veteran began to seek a degree in physical therapy, but left this endeavor to take over management of a UPS store owned by his brother. During his Board hearing, the Veteran testified that he obtained a Bachelor of Science and Business.

The private examiner also reported that the Veteran neglected his personal appearance and hygiene. The report also noted, however, that he logged in early for the appointment, and was appropriately dressed and groomed. Similarly, the October 2024 VA examiner noted that the Veteran was casually dressed, cooperative, and appeared well-groomed.

The private evaluation also noted that the Veteran sustained a significant right knee injury while working at the UPS store. It also noted that this nonservice-connected disability continues to be manifested by significant and consistent pain. The private evaluation does not attempt to separate out manifestations of this condition as it applies to the Veteran's employability; or as it possibly aggravates the Veteran's psychiatric disability. These inconsistencies do draw into question the Veteran's credibility when reporting his history.

Moreover, while some social isolation is shown and accounted for in the currently assigned 70 percent evaluation, total social impairment is not. The February 2026 private evaluation report noted that the Veteran maintains a strong relationship with both of his children. At his January 2026 Board hearing, he described his wife as his best friend. Finally, while he reported some social isolation, it was not total. During his October 2024 VA examination, the Veteran reported having a few friends.

In short, the evidence of record persuasively 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 evaluation at any point since June 17, 2024. The criteria for a 100 percent evaluation are not met at any point since the initial grant of service connection, and the appeal must be denied.

3. Entitlement to TDIU.

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.
of service connection, and the appeal must be denied.

3. Entitlement to TDIU.

Prior to June 17, 2024, the Veteran was service-connected for depressive disorder due to chronic pain, evaluated as 50 percent disabling; lumbosacral sprain, evaluated as 20 percent disabling; radiculopathy of the right and left lower extremities, each evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; left third toe tumor excision, hearing loss and scars, each evaluated as noncompensable (0 percent). The combined disability evaluation was 80 percent, prior to October 8, 2024.

Since June 17, 2024, the Veteran was service-connected for depressive disorder due to chronic pain, evaluated as 70 percent disabling; lumbosacral sprain, evaluated as 20 percent disabling; radiculopathy of the right and left lower extremities, each evaluated as 20 percent disabling; tinnitus, evaluated as 10 percent disabling; left third toe tumor excision, hearing loss and scars, each evaluated as noncompensable (0 percent). The combined disability evaluation was 90 percent, since October 8, 2024.

For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, supra. Therefore, when adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering a veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16.

In the decision of Ray v. Wilkie, the Court provided principles to guide VA adjudicators in determining whether a veteran could obtain and maintain "substantially gainful employment." 31 Vet. App. 58, 72 (2019). The Court noted that "substantially gainful employment" included an economic component, i.e., an occupation earning more than marginal income as determined by the United Stated Department of Commerce as the poverty threshold for one person as well as a non-economic component, i.e., a veteran's ability to secure or follow that type of occupation which produces earnings more than the Federal poverty threshold. Id. at 72-73 (citations and internal quotation marks omitted). In making such a determination, particular attention must be given to
kie, the Court provided principles to guide VA adjudicators in determining whether a veteran could obtain and maintain "substantially gainful employment." 31 Vet. App. 58, 72 (2019). The Court noted that "substantially gainful employment" included an economic component, i.e., an occupation earning more than marginal income as determined by the United Stated Department of Commerce as the poverty threshold for one person as well as a non-economic component, i.e., a veteran's ability to secure or follow that type of occupation which produces earnings more than the Federal poverty threshold. Id. at 72-73 (citations and internal quotation marks omitted). In making such a determination, particular attention must be given to:(1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, including whether the veteran has limitations concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including whether the veteran has limitations concerning memory, concentration, the ability to adapt to change, the ability to handle work place stress, the ability to get along with coworkers, and the ability to demonstrate reliability and productivity. Id.

In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382 (2017).

The applicable regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not on a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

Although requested, the Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. While the Veteran eventually submitted an employment history form, the information provided in this report is not accurate. As noted above, the form noted that he had applied for a position with Uber in October 2017; however, the Veteran testified that he was employed by Uber until 2021. Also worth noting on his employment form, the Veteran did not report having missed any time due to illness during his prior employment with UPS.

The evidence of record indicates that the Veteran has obtained a Bachelor of Science and Business.

Based upon a longitudinal review of the record, the Board concludes that the combined effects of the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation throughout the course of this appeal.

In reaching this conclusion, the Board does not find that this unemployability is due solely to his depressive disorder due to chronic pain. Although the February 2024 private examiner opined that the Veteran's depressive disorder due to chronic pain alone rendered him unemployable, the Board disagrees with this contention. Throughout the course of this appeal, the Veteran has repeatedly indicated that he stopped working at his position with UPS based upon his physical limitations attributed, at least in part, to his other service-connected disabilities. Finally, the Veteran's contentions as reported to the February 2024 examiner were inconsistent and not credible.

Resolving all doubt in favor of the Veteran, when the effects of the Veteran's service-connected disabilities are combined, the Board concludes that substantially gainful employment could not be retained throughout the appeal period.

Cory M. Picton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Yates, William M.

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.

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