Citation Nr: 21073569 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-29 742 DATE: December 9, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent prior to July 28, 2020, and in excess of 70 percent thereafter, for major depressive disorder, recurrent, with anxious distress is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to July 28, 2020, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. After July 28, 2020, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 3. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent prior to July 28, 2020, and in excess of 70 percent thereafter, for major depressive disorder, recurrent, with anxious distress 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. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to October 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. The Board remanded the claim in May 2020. Additional evidence was received since the August 2020 supplemental statement of the case, including VA treatment records associated with the claims file in July 2021. This evidence includes an August 2021 VA examination for mental disorders and VA treatment records. The Board informed the Veteran of such in a September 2021 letter. The Veteran did not respond to this correspondence, and the evidence was subsequently considered by the Agency of Original Jurisdiction (AOJ) in a September 2021 rating decision. Accordingly, the Board may proceed to a decision. 38 C.F.R. § 20.1304(c). In October 2020, the Board sent a letter to the Veteran giving him the opportunity to submit evidence or argument to support the claim. In August 2021, the Board sent the Veteran's representative the same letter. The letter advised the Veteran and his representative of the time period to submit evidence or argument in the case. To date, the Board has not received additional argument or evidence in this matter. 1. Entitlement to an initial evaluation in excess of 50 percent prior to July 28, 2020, and in excess of 70 percent thereafter, for major depressive disorder, recurrent, with anxious distress is denied. The Veteran seeks a higher initial rating for his service-connected psychiatric disorder. See February 2016 notice of disagreement. In a January 2015 rating decision, the Veteran was granted service connection for unspecified anxiety disorder with an initial rating of 50 percent, effective February 7, 2007. In a September 2021 rating decision, the RO granted an increased evaluation of 70 percent, from July 28, 2020, for the previously rated unspecified anxiety disorder and reclassified the service-connected condition as major depressive disorder, recurrent, with anxious distress. Where the question for consideration is the propriety of the initial evaluation assigned, the Board will consider the medical evidence since the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). At a prior Board hearing held in February 2014, for the purpose of establishing service connection for a psychiatric disorder, the Veteran testified that his symptoms included intrusive memories, nightmares, memory difficulties, crying episodes, seclusion from others, nervousness, and moments of anger and bitterness. The Veteran also testified that he occasionally does not remember who he is. Moreover, the Veteran testified that his marriages failed because he was aggressive, bitter, secluded, easily angered, or quick to slander. At the same time, the Veteran also reported loving his family dearly and that his siblings are involved in his health/life. He also reported participating in church and working. In an August 2015 VA Form 9, the Veteran reported that his symptoms include 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, neglect of personal hygiene and appearance, and an inability to establish and maintain effective relationships. The Veteran also reported disturbing dreams, anger, flashbacks, headaches, muscle aches, sadness, shame, depression, mood swings, social isolation, neglect of hygiene, nervousness, and difficulty concentrating. At the March 2020 Board hearing before the undersigned Veterans Law Judge, for the purposes of establishing entitlement to a higher initial rating for his service-connected psychiatric disorder, the Veteran testified that his symptoms manifested in difficulty with comprehension, inability to complete an academic program, inability to maintain a romantic relationship, difficulty dealing with others at work, and avoidance of stimuli. In particular, the Veteran reported problems working in a timely manner, problems focusing/following directions, thoughts about taking his own life, aggressive behavior, and episodes of crying. However, the Veteran also testified that he maintained contact with his siblings in periodic intervals, and has not had disciplinary actions related to his mental health issues at work. Although the Veteran reported working 24 to 40 hours per week, his annual income was estimated to be $40,000. 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). 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. Based upon the following, the Board concludes that the Veteran's symptoms did not more closely approximated the symptoms associated with a 70 percent rating prior to July 28, 202. During that time, the Veteran's symptomatology did not result in a level of impairment that most closely approximated the level of impairment with deficiencies in most areas. Thereafter, the Veteran's symptoms did not cause total occupational and social impairment. In this case, VA and private treatment records consistently note symptoms of isolation, nightmares, anger, poor sleep, flashbacks, fear of crowds, easy startle response, depression, nervousness, hypervigilance, and irritability. See June 2007 VA treatment records. The Veteran has predominantly reported passive suicidal ideation throughout the appeal period. See e.g. treatment records from March 2015 March 2017, and June 2019. The Veteran has regularly reported or been observed to have episodes of crying spells, emotionality, or disturbances in mood. See e.g. treatment records from July 2008, March 2017 and January 2020. In July 2019 VA treatment records, the Veteran reported that he often feels irritability and lashes out at others verbally and physically. At that time, the Veteran was observed to be extremely tangential in his thought process, with poor to fair insight and judgment. In March 2017, the Veteran reported difficulty with the activities of daily living and not showering for a week. However, the Board notes that the vast majority of clinical observations in the mental status examinations were unremarkable. In fact, the mental status examinations predominantly showed that the Veteran was fully oriented, appropriately dressed, adequately groomed, and sufficiently hygienic. See e.g., January 2020 VA treatment records. The Veteran was also noted to have normal speech, congruent affect, good insight, and good judgment; he denied perceptual disturbances, loosening of associations, delusions, depersonalizations, obsessions, and suicidal or homicidal ideations. As to his level of impairment, the Veteran reported some impairments. The Veteran indicated that he called out at work due to his mental health. See VA treatment records from March 2019 and December 2018. In February 2019 VA treatment records, the Veteran also noted that his low motivation affects him at work and results in poor evaluations. See also December 2018 VA treatment records. Socially, the Veteran reported regular contact with his siblings. See e.g., November 2007 VA treatment records. The Veteran also reported interactions with those outside his family, including attending church and neighborhood barbeques. See e.g. VA treatment records from December 2007, July 2018, and August 2018. The Veteran underwent a VA examination in October 2014. The examiner noted a diagnosis of unspecified anxiety disorder, with other rule out diagnoses noted. The Veteran reported symptoms of being easily startled, flashbacks, poor sleep, nightmares, hypervigilance, social isolation, memory problems, occasional helplessness, feelings of worthlessness, and thoughts of suicide 10 years ago. He also reported adequate care of hygiene, grooming, and activities of daily living. The Veteran noted that he remains close to his siblings and has regular contact with each of them. However, he suffers from social impairment with isolation from others and has been divorced multiple times due to the Veteran's own verbal abuse, meanness, and aggressiveness. The examiner endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss flattened affect, impaired abstract thinking, and disturbances of motivation and mood. The examiner concluded that the Veteran suffers from 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. Upon review, a higher rating is not warranted for the Veteran's psychiatric disorder, prior to July 28, 2020. The Veteran's psychiatric disorder predominantly manifested in symptoms and level of impairment associated with less than 70 percent rating. The VA treatment records and the August 2014 VA examination shows that the Veteran had symptoms associated with a 30 percent rating, including depressed mood, anxiety, chronic sleep impairment, suspiciousness, and mild memory loss. The Veteran's disorder also manifested in symptoms associated with a 50 percent rating, including fair or impaired judgment, flattened affect, impaired abstract thinking, and disturbances of motivation and mood. Although the Veteran reported occasional helplessness, being easily startled, and nightmares, these are akin to disturbances in motivation, suspiciousness, and chronic sleep impairment and are symptoms associated with a less than 70 percent rating. The Board has considered that the Veteran's major depressive disorder, recurrent, with anxious distress also manifested in symptoms associated with a 70 percent rating. These include passive suicidal ideation, difficulty in adapting to stressful circumstances, and occasional neglect of personal appearance and hygiene. Although the Veteran reported irritability and impaired impulse control, the record does not support periods of violence. In this regard, the Veteran reported verbal outbursts against others and occasional use of force against inmates he was transporting. However, the Veteran's reported verbal outbursts do not constitute a period of violent. Further, the Veteran also reported that he received no formal citation for any excess force. In addition, these symptoms were sporadically reported in the Veteran's treatment records. These treatment records note the Veteran's psychiatric progression throughout the appeal period as he received consistent and frequent psychiatric counseling. They are probative as to the frequency and severity of his symptoms. The Board notes that the Veteran has also expressed suicidal ideation. The Board is cognizant of the Court's recent decision in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), wherein the Court held that "the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas" correlating with a 70 percent evaluation under the rating criteria. Id. at 19 (emphasis added). However, the Board notes that the language of the Bankhead decision and use of the word "may" is suggestive. Thus, the Court declined to hold that the presence of suicidal ideations warrants a 70 percent evaluation under the rating criteria in every situation. Rather, the Court noted that the presence of a single symptom is not dispositive of any particular disability level. VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms, quantifies the level of occupational and social impairment caused by those symptoms, and assigns an evaluation that more nearly approximates that level of occupational and social impairment. In this case, there is no indication that the Veteran's reported suicidal ideation has had a significant negative impact on his occupational and social functioning that would warrant the assignment of a higher rating for any particular period under review. In this case, the Veteran's the report of suicidal ideations was not shown to have resulted in a significant effect on his ability to function. In addition, with respect to a rating in excess of 70 percent since July 28, 2020, in particular, his suicidal ideation was entirely passive. That is to say, that the Veteran did not evince intent or plan to harm himself. Moreover, he was always assessed by a competent, psychiatric clinician to be an acute or low risk to himself. As such, the presence of suicidal ideation does not warrant a total evaluation specifically for the period from July 28, 2020. Likewise, the Veteran's symptomatology did not result in social and occupational impairment with deficiencies in most areas. Of note, the Veteran reported social isolation and multiple. However, the VA treatment records show that the Veteran has a consistently close relationship with his step-daughter, interactions with his family members, and interests and interactions outside the home. As to occupational impairment, the Veteran reported absences, poor performance and poor relationships at work. He further reported the inability to complete an academic program. However, the Veteran also reported that he remained employed during this period. Implicitly, he maintains some functional ability in this sphere. Thus, the evidence is against the claim that the Veteran's symptomatology closely approximates impairment with deficiencies in most areas prior to July 28, 2020. From July 28, 2020, the Veteran is in receipt of a 70 percent rating for his major depressive disorder, recurrent, with anxious distress. Based upon the following, a total disability rating is not warranted. During this period, the Veteran reported sleep problems, multiple stressors, nightmares, and depression. See February 2021 VA treatment records. The Veteran also reported passing suicidal ideations, but the treating clinicians indicated that the Veteran was not a risk of harm to himself. See May 2021 VA treatment records. In May 2021, the Veteran reported visiting his sister-in-law at a nursing home with his niece. He also reported plans to go to church in July 2021. He further reported a strong relationship with his daughter. Mental status examinations mostly noted intact memory, orientation, appropriate affect, coherent speech, euthymic or dysthymic mood, relevant thought process, relevant thought content, good judgment, and fair insight. See e.g., September 2021 VA treatment records. Occasionally, the Veteran was noted to have soiled clothing, tangential speech, anhedonia, apathy and lack of motivation, and trouble completing activities of daily living. In August 2020, the Veteran was afforded a VA examination. The examiner noted a diagnosis of other specified depressive disorder, explaining that the established service-connected diagnosis is changed to a new and separate diagnosis. The Veteran reported social impairments with his last marriage ending in 2010. He also reported that he lives alone, is withdrawn, and neglects household chores and personal hygiene. The Veteran reported passive suicidal ideation with fleeting non-specific thoughts. He remained employed in part-time work transporting detainees. The examiner endorsed symptoms of depressed mood, anxiety, and disturbances of motivation and mood. The examiner observed that the Veteran had depressive disorder, congruent affect, full orientation, coherent speech, and normal thought content. There was no evidence of dyssomnia, anomia, or psychosis. He denied current or recent suicidal or homicidal ideation. The examiner concluded that the Veteran suffers from 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. In doing so, the examiner reasoned that the Veteran lacks motivation to engage in his work, or navigate negative events and stressors. The Veteran underwent another VA examination for mental disorders in August 2021. The examiner noted a progression in the service-connected diagnosis to major depressive disorder, recurrent, with anxious distress. The Veteran reported symptoms of depressed mood, crying spells, social isolation, low self-worth, anxiety and constant worry, problems with memory and concentration, difficulty sleeping, lack of motivation and energy, hopelessness, and anhedonia. He also reported irritability and a history of violence, with the most recent episode in the last six to eight months. He denied having current suicidal or homicidal ideation and attempts. He denied any history of psychiatric hospitalizations or emergency room visits. The Veteran was noted to have a low suicide risk. The examiner noted symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss; circumstantial, circumlocutory or stereotyped speech; 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; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner observed that the Veteran was adequately dressed and groomed, but he was also depressed and anxious. He exhibited intact planning/organizational skills, circumstantial speech, fair insight and judgment fair, and fair impulse control. There were no obsessions, delusions, hallucinations, paranoid ideation, suicidal or homicidal ideation, or disorientation. Based upon the symptomatology, the examiner concluded that there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Here, the Veteran's symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Although various VA treatment records and the August 2021 VA examination noted issues with hygiene, activities of daily living, insight, judgement, and speech, these were infrequent. Rather, most of the mental status examinations and observations in the VA treatment records and VA examinations weigh against the level of gross impairments contemplated in a total rating. Instead, the Veteran was shown to have mostly normal speech, congruent affect, good or fair insight, and good or fair judgment. He generally denied perceptual disturbances, loosening of associations, delusions, depersonalizations, and obsessions. Further, the Veteran was not totally socially or occupationally impaired. The treatment records show that the Veteran has continuing contact and relationships with his daughter, siblings, and family members. In addition, the Veteran was able to maintain employment for most, if not all, of this appeal period. Overall, the evidence does not demonstrate the level of impairment associated with a 100 percent rating. In short, the evidence weighs against finding that the Veteran's major depressive disorder, recurrent, with anxious distress manifested in occupational and social impairment with deficiencies in most areas prior to July 28, 2020. Thereafter, the severity, frequency, and duration of the Veteran's symptoms did not result in the level of impairment required for a 100 percent rating. Accordingly, the claim for a higher initial evaluation is not warranted. 2. Entitlement to a TDIU is denied. In the August 2021VA examination, the Veteran reported that he stopped working in May 2021 because of his worsening psychiatric symptoms, including irritability and low frustration tolerance. As such, the issue of entitlement to a TDIU has been raised as part of the Veteran's claim for an initial increased rating for his major depressive disorder, recurrent, with anxious distress. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b). The Court defined the term to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. For the relevant period, the Veteran was service-connected for major depressive disorder, recurrent, with anxious distress, rated as 50 percent disabling from February 7, 2007, and 70 percent disabling from July 28, 2020; tinnitus rated 10 percent disabling from July 28, 2020; and bilateral hearing loss rated noncompensable from July 28, 2020. His total combined disability rating is 50 percent from February 7, 2007, and 70 percent from July 28, 2020. Therefore, the Veteran does not meet the schedular criteria prior to July 28, 2020. See 38 C.F.R. § 4.16. Nevertheless, entitlement to a TDIU still may be granted, instead, on an extra-schedular basis under § 4.16(b). This additional subpart of this governing VA regulation indicates "that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled." Id. The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Although entitlement to a TDIU still may be granted on an extraschedular basis under § 4.16(b), the Board finds the evidence does not support entitlement to a TDIU such that referral for extraschedular consideration is warranted. Initially, the Board notes that the AOJ contacted the Veteran in September 2021 and requested that the Veteran submit a completed VA Form 21-8940. This form provides critical information for VA to make its determination with respect to entitlement to a TDIU, including formal education, training, and work history. To date, the Veteran has not submitted a completed VA Form 21-8940. While some of the relevant information is already of record, the information required to determine the Veteran's entitlement to IU is not entirely clear. A remand for the Veteran to provide the already requested information would be entirely duplicative of recent efforts. As such, the Board will proceed to adjudicate the claim based on the available evidence. The Veteran's DD 214 noted a military occupational specialty as equipment storage specialist. Some of the Veteran's post-service education and prior work history is documented in his treatment record. In a July 2008 private psychiatric intake evaluation, the Veteran reported that he has 15 years of schooling. He also reported that he previously worked as a truck driver and as a manager of staff and inmates at a federal corrections institution. The Veteran also reported that he worked in private security or law enforcement for 20 years. See treatment records from October 2007 and March 2015. The evidence reflects that the Veteran was employed either on a part-time or full-time basis until May 2021. In a July 2008 private psychiatric intake evaluation, the clinician noted that the Veteran has been unemployed since April 2008. However, in the October 2014 VA examination, the Veteran reported that he has worked part time transporting convicted felons for the past 5 to 6 years (from 2007 to 2008). At the March 2020 Board Hearing, the Veteran testified that he was currently employed transporting felons. He indicated that he was working on a part-time basis working 24-40 hours per week and was earning about forty-thousand dollars. He reported that he had had 'aggressive conversations' several times with different peers, but denied receiving any disciplinary action related to his mental health problems. Despite the evidence that the Veteran was employed on a part-time basis, it is not entirely clear which periods he had full-time employment as opposed to part-time employment since February 7, 2007, the effective date of the grant of service connection for his unspecific anxiety disorder. This is because the Veteran did not complete a VA Form 21-8940. Nonetheless, based on the limited information available to the Board, it is not shown to have been marginal in nature. At the March 2020 Board Hearing, the Veteran reported that his annual salary was about forty thousand dollars. For the year 2020, the annual poverty threshold for individuals over 65 years of age was $12,413. See Poverty Thresholds for 2020 (census.gov). Since 2007, the limited evidence available reflects that the Veteran's employment as a law enforcement transportation officer was at times part-time and at times, full-time. The Veteran did not provide salary information for other years, and there is no other information indicating a salary below the poverty threshold. Because of the Veteran's failure to provide a completed VA Form 21-8940, the Board is unable to determine whether the Veteran was gainfully employed in non-marginal work for the entire appeal period in question, which is between February 2007 and May 2021. At the August 2021 VA examination, the Veteran reported that he was working up until May 2021. VA treatment records dated in October 2021 reflect that the Veteran reported that he was on a six month leave of absence, which began in May 2021, for medical reasons. At the time, the Veteran indicated he was uncertain as to whether he would return to his following the leave of absence. Given the above, it is unclear whether the Veteran is currently employed. Assuming that the Veteran is currently unemployed, the Board notes that he had some difficulties due to his service-connected disabilities. As to hearing loss, the Veteran reported difficulty hearing and communicating with others, loss of clarity in conversations, and the appearance that he is ignoring others. See August 2021 VA examination. The Veteran's tinnitus caused him additional irritability, and loss of focus. The Veteran also had difficulties associated with his major depressive disorder, recurrent, with anxious distress. During the August 2021 VA examination, the Veteran reported that he stopped working because of worsening irritability, frustration, and drowsiness/sleepiness from medication. The Veteran had difficulty in his relationship with co-workers, and using excessive force on inmates. The Veteran reported that he was verbally warned for falling asleep at work and using force on inmates. Nonetheless, he stated that he did well in this position. Despite the reported difficulties, there is no evidence that the Veteran could not have performed employment consistent with his training, work experience and education due to his service-connected disabilities. Indeed, the Veteran has completed some post-secondary education and has managerial work experience. The Veteran did not complete a VA Form 21-8940, so the Board does not know whether he has any additional education, skills, or training other than what has been gleaned from the claims file. However, the education and experience shown in the record may reasonably allow the Veteran to work other types of positions, including some with less public-facing interactions. Furthermore, in October 2021 VA treatment records, the Veteran reported that his leave of absence was related to his worsening non service-connected eye-sight. In June 2021 VA treatment records, the Veteran reported that he stopped working due to drowsiness and sleepiness from medications. Separately, in July 2021 VA treatment records, the Veteran reported no side effects from mental health medication. During this period, the Veteran was taking numerous medications, including those for non service-connected blood pressure, inflammation, and muscle spasm. See April 2021 VA treatment records. Although the Veteran occasionally reported the medication side-effects in the context of mental health treatment records and VA examinations for mental disorder, it is not entirely clear that the medication causing the Veteran to become drowsy and fall asleep at work was related to his psychiatric disorder. In summary, the evidence is against finding that the Veteran was unable to obtain or follow substantially gainful work due to his service-connected disabilities. As such, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to a TDIU is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.