Citation Nr: 21011530 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 20-03 930 DATE: March 2, 2021 ORDER Entitlement to a rating greater than 50 percent for post-traumatic stress disorder (PTSD) is denied. Entitlement to an effective date, earlier than August 8, 2018, for service connection for PTSD is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU), for the period prior to February 24, 2020, is denied. FINDINGS OF FACT 1. The Veteran’s PTSD was no more than moderate in severity and manifested by occupational and social impairment with reduced reliability and productivity. 2. There is no evidence of a formal or informal claim for service connection for PTSD prior to August 8, 2018. 3. Prior to February 24, 2020, the Veteran’s service-connected disabilities did not preclude the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130; Diagnostic Code 9411. 2. The criteria for an effective date, earlier than August 8, 2018, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.102, 3.155, 3.400. 3. For the period prior to February 24, 2020, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1963 to January 1968. This matter was previously before the Board in July 2020. In the decision, the Board found that the issue of entitlement to TDIU was raised by the record; therefore, the claim was added to the appeal. In an October 2020 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran’s claim for TDIU, effective February 24, 2020. However, the Board is cognizant of the decision in Harper v. Willkie, 30 Vet. App. 356 (2018), in which the partial grant of a Rice TDIU does not bifurcate it from the underlying increased rating claim on appeal and the issue of entitlement to TDIU must be considered for the entire appellate period. Thus, the Board will adjudicate the issue of entitlement to TDIU prior to February 24, 2020 in the decision herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that new evidence was added to the record after issuance of the October 2020 Supplemental Statement of the Case (SSOC); however, the evidence is duplicative or unrelated to the claims being adjudicated in the decision herein. Therefore, it is not necessary to remand the appeal to the AOJ for consideration of this evidence and the Board may proceed with adjudication of the claims. See 38 C.F.R. § 20.1304 (c). 1. Entitlement to a rating greater than 50 percent for PTSD. The Veteran’s PTSD has been assigned a 50 percent rating for the period on appeal and has been evaluated under Diagnostic Code 9411 which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 50 percent rating is assigned when a veteran’s psychiatric disorder causes 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-term 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The maximum schedular rating of 100 percent is warranted when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment; but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). Factual Background A review of the evidence shows the Veteran received an initial mental health evaluation in April 2018. It was noted that the Veteran sought out mental health treatment after a VA employee gave him a brochure about PTSD. In his evaluation, the Veteran reported that since his time in Vietnam, he has experienced emotional numbing, inability to have close relationships, and the inability to feel affected by negative events. He endorsed intrusive thoughts approximately once monthly, and he recently began having dreams involving violence, but his dreams are not of Vietnam experiences. He reported that he avoids all Vietnam war movies or war violent movies, and he has symptoms of anhedonia, exaggerated startled response, and that he always needs to sit with his back to the wall. Occupationally, the Veteran reported having a successful career as an attorney, and that he currently has a small practice as a plaintiff’s attorney. He stated that he lived on Martha’s Vineyard at one time, and that he skis annually in South America. The Veteran was given a referral to psychiatry. In December 2018, the Veteran received a VA examination for PTSD. In the examination, the Veteran reported being married for seven years which ended in divorce. He reported that he was not involved in his son’s life until he turned 10 or 11, but that he has a “superb” relationship with his daughter. The Veteran reported that he has two grandchildren and that he visits them every two or three months. He also has been in some dating relationships since his divorce, but nothing consequential. The Veteran stated that he has some close friends but feels that he sometimes withdraws from them as a defense mechanism. He plays tennis regularly and enjoys reading and writing. After the military, the Veteran noted that he graduated law school third in his class, and he worked as an attorney for himself and other organizations. He reported that he did some real estate development and denied occupational difficulties. He stated that he was finishing up work on one case for a client, but that he is no longer taking new clients. With regard to treatment, the Veteran reported having no mental health treatment until earlier this year at the suggestion of someone from a veteran’s information office. The Veteran reported symptoms of recurrent intrusive memories and violent nightmares (several times in the past month) that disrupt his sleep. He stated that his dreams have become more prominent since he started treatment. He avoids thinking about his service in Vietnam by staying busy and avoids talking about his service. He feels detached from other people and wants a relationship with his grandchildren. He is excessively watchful and will jump in response to unexpected noises. He reported difficulty maintaining sleep and denied suicidal/homicidal ideation. The Veteran reported that he was able to concentrate on things that interest him, but that he gets bored easily. Mental examination showed no psychomotor agitation or retardation observed; there were no symptoms of psychosis reported or observed. The examiner noted a symptom of chronic sleep impairment and found that the Veteran’s PTSD causes occupational and social impairment due to mild or transient symptoms. In April 2020, the Veteran received a second VA examination for PTSD where he reported that he lives alone. He repeated that he has two children and noted continued relationships with them. He also reported having some close friends, and that he does date occasionally. The Veteran reported that he retired from law, and that he has been in treatment for individual and group therapy; however, he has never been prescribed psychotropic medications. The examiner noted symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and impaired impulse control, and found that the Veteran’s symptoms cause occupational and social impairment with an occasional decrease in work efficiency. Analysis After considering the above and remaining evidence, the Board finds that a rating greater than 50 percent is not warranted as the evidence shows that the Veteran’s symptoms were no more than moderate in severity, nor were his symptoms of the severity, frequency, or duration to warrant a higher rating. As noted above, the Veteran’s symptoms were found to cause occupational and social impairment due to mild or transient symptoms in his December 2018 PTSD examination. The Board, notes, however, that in the Veteran’s January 2019 Notice of Disagreement (NOD) and in his January 2020 written correspondence, the Veteran reported that he was unwilling to open up about his traumatic events during his examination and that he minimized his symptoms. In addition, the April 2020 examiner found that the Veteran’s symptoms worsened. Nevertheless, the examiner concluded that the Veteran’s symptoms cause occupational and social impairment with an occasional decrease in work efficiency, which is indicative of a 30 percent rating and mild to moderate impairment. Moreover, the same examiner re-examined the Veteran in October 2020 and found that his symptoms cause occupational and social impairment with reduced reliability and productivity, indicative of moderate severity and a 50 percent rating. Consistent with these findings are the Veteran’s VA treatment records which also show that the Veteran’s symptoms were no more than moderate. As explained above, the Veteran was initially evaluated in April 2018 where he reported symptoms of emotional numbing, intrusive thoughts, dreams involving violence, avoidance of war movies, anhedonia, and exaggerated startled response. However, he reported having intrusive thoughts approximately once a month and indicated that his dreams were not of his experiences in Vietnam. In addition, an August 2018 VA treatment record shows the Veteran began individual therapy at the New Orleans VAMC where the examiner indicated therapy would focus on coping techniques to address the main issues of emotional numbing and decreased intrusive memories. Mental status examination showed the Veteran’s mood was anxious; however, he was alert and oriented x 4, he denied suicidal/homicidal ideations, and he exhibited no psychotic symptoms. Subsequent treatment records do not show evidence that the Veteran’s symptoms worsened. Notably, a January 2019 mental health note shows the Veteran was discharged from individual therapy. The examiner noted that the Veteran made progress over the months in opening up emotionally and allowing himself to feel his feelings. It was also noted that the Veteran was showing greater empathy for others, and that he has had a decrease in intrusive thoughts. In February 2019, the Veteran began group PTSD therapy at his request. A March 2019 mental health note shows the Veteran was triggered after learning about the “freeze response,” which happened to him in combat. He reported that since then, he has had an increase in nightmares and hypervigilance. However, his increase in symptoms were not of the severity, frequency, or duration, to warrant a higher rating. The Board notes that at the time the Veteran reported the increase in symptoms, the examiner did not find additional treatment or medication necessary. Rather, the examiner noted that she would assess the availability for trauma work and would advise the Veteran further. Mental status examination showed the Veteran’s mood was anxious, but he was oriented x 4; he denied suicidal/homicidal ideations and exhibited no psychotic symptoms. Moreover, the Veteran continued group therapy with no further reports of increased symptoms. The Veteran was eventually recommended for trauma-focused, evidence-based treatment with eye-movement desensitization and reprocessing (EDMR); however, the Veteran determined that EMDR treatment was not a good fit for him and reported that he felt compelled to talk about his military trauma. In July 2019, the Veteran sought treatment at the Pensacola VAMC as the Veteran recently moved back to the area. The Veteran reported symptoms of middle and terminal insomnia, some nightmares, short term memory, and some concentration problems. He denied history of medication for depression/anxiety and he denied suicidal/homicidal ideation. He reported having a few close friends, and his activities included playing tennis, snow skiing, reading, and the harpsicord. The Board notes that the Veteran was given a PCL-5, used to assess the presence and severity of PTSD symptoms, and that his score was 58, indicative of severe symptoms. However, this finding was based solely on the Veteran’s subjective reported symptoms. It is advised that the PCL-5 should not be used as a stand-alone diagnostic tool. See https://www.ptsd.va.gov/professional/assessment/documents/using-PCL5.pdf. To that end, the Board reiterates that the objective evidence of record shows that the Veteran’s PTSD symptoms were mild and/or moderate, as evidenced by his PTSD examinations. Moreover, his VA treatment records do not indicate that his symptoms were greater than moderate. The Board notes that after his PCL-5 test, the Veteran presented to a mental health visit in August 2019 where he reported struggling with minor problems and minor distress due to daily life and past events. Although he reported having “pent up anger,” the examiner noted that the Veteran remains motivated towards engaging life with family, work, school, and receiving appropriate care. The examiner further noted that the Veteran just needs someone to talk to and not intense therapy. Furthermore, in an August 2020 mental health visit, the Veteran continued to report minor struggles with problems and distress due to daily life and past events. The examiner noted the Veteran had visited his family in Boston. He had a positive outlook and was easy to talk with. Although the examiner acknowledged the Veteran does present with issues surrounding his experience in Vietnam, the examiner indicated the sessions were mentally engaging with an interesting perspective on current and historical events. The sessions allow the Veteran to talk about problems confronting him on a daily basis, and the Veteran did not report any other issues and appears to be coping well. Based on the above, the Board finds the preponderance of evidence is against the claim. Although the Veteran exhibited symptoms of emotional numbing, intrusive thoughts, nightmares, avoidance, anhedonia, exaggerated startled response, and sleep impairment, his symptoms were no more than moderate, and were not of the severity, frequency, or duration to warrant a higher rating. Moreover, while the Veteran reported social impairment with the inability to have close relationships, he maintained relationships with his grandchildren and his daughter, which he described as “superb.” The Veteran also reported having some close friends and that he has been involved in some dating relationships. Further, the Veteran reported being socially active as he plays tennis regularly and skis annually in South America. Furthermore, an August 2018 treatment record shows the Veteran was planning a visit to Martha’s Vineyard in August, and he was planning another trip to Massachusetts in August 2019. Likewise, the record does not show significant occupational impairment as the Veteran denied occupational difficulties in his December 2018 PTSD examination. Moreover, he reported that he retired from law and there is no indication his retirement was due to his service-connected PTSD. The Board notes that in his October 2020 PTSD examination, the examiner noted a symptom of impaired impulse control, such as unprovoked irritability with periods of violence; however, there is no other evidence in the record to support this finding. Nor is there evidence of other symptoms similar in nature or severity, such as obsessional rituals, panic attacks, neglect of personal hygiene, or otherwise, that would warrant a higher rating. For the foregoing reasons, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for a rating greater than 50 percent for PTSD is denied. 2. Entitlement to an effective date earlier than August 8, 2018, for service connection for PTSD. The Veteran is seeking an effective date earlier than August 8, 2018 for the grant of service connection for PTSD. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Prior to the amendment, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Thus, in determining an effective date, the two dates that govern are the date of claim and the date entitlement arose. Starting with the date of claim, the Board notes that there were no informal claims or formal claims for PTSD filed prior to the August 8, 2018 formal claim received by VA. While the Veteran asserted in a July 30, 2018 Notice of Disagreement (NOD), that the Ro had omitted to adjudicate his claim for PTSD, his assertion was based on his assumption that the PTSD claim had been included on the formal claim application that had been submitted for his claim of entitlement to service connection for diabetes. This claim was received by the VA on April 13, 2018, and does not include any reference to PTSD, but is limited solely to asserting compensation for diabetes. Thus, this formal application cannot constitute a claim for PTSD. Further, the Veteran’s assertion of a claim for PTSD in the NOD cannot constitute a valid claim because it was received after March 2015, when the VA no longer accepted informal claims, but required all claims to be filed on standard forms. See 38 C.F.R. § 3.160(a),(b); 79 Fed. Reg. 57660 (Sept. 25, 2014). Therefore, the Veteran’s August 8, 2018 Fully Developed Claim is the first evidence of a claim for PTSD, and this is the date of claim. As to the date of entitlement, even if entitlement arose prior to the August 8, 2018, date of claim, this would be the later of the two dates, and thus, an effective date prior to August 8, 2018, is not possible under the law. The Board also notes that in his representative’s June 2020 brief, it was contended that an earlier effective date is warranted from the Veteran’s date of discharge since he was experiencing the same symptoms upon his return from Vietnam that he has now that are confirmed as PTSD symptoms. The Veteran contended that had his symptoms been properly treated, then service connection would have been established at the time of his original claim for benefits. The Board disagrees with this assertion. Notably, a diagnosed disability or treatment of a disability, in and of itself, does not indicate that the Veteran had an intent to seek VA compensation for a disability. There is no provision in the law for awarding an earlier effective date for service connection based simply on the presence or treatment of a disability in medical records. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). Furthermore, the effective date of claim is statutorily limited to a written statement by the Veteran reflecting an intent to file a service connection claim. See Sears v. Principi, 16 Vet. App. 244, 249 (2002); Pacheco v. Gibson, 27 Vet. App. 21 (2014); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Here, there is no evidence of record showing an intent to file a claim of service connection for PTSD prior to August 8, 2018. Based on the above, the Board concludes that entitlement to an effective date for the grant of service connection for PTSD, earlier than August 8, 2018, is denied. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107 (b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to a TDIU prior to February 24, 2020. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Id. at 73. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must 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. 38 C.F.R. § 4.16 (a). For the period prior to February 24, 2020, the Veteran was service connected for PTSD, rated 50 percent from August 8, 2018; Reiter’s syndrome, rated 20 percent from April 24, 1995; diabetes mellitus, rated at 20 percent from April 9, 2018; tinnitus, rated 10 percent from February 28, 2019; diverticula, pityriasis rosea, postoperative appendectomy, and bilateral hearing loss, all rated as noncompensable. The Veteran had a combined disability rating of 70 percent from August 8, 2018. Therefore, the Veteran met the schedular requirement for a TDIU as of August 8, 2018. At the outset, the Board notes that the evidence does not show, nor has the Veteran asserted, that his service-connected diabetes mellitus, diverticula, pityriasis rosea, or postoperative appendectomy has impacted his ability to work. Therefore, the Board will not discuss these disabilities further. In addition, the Board recognizes that the Veteran filed for increased ratings in October 2020 for service-connected Reiter’s syndrome, tinnitus, and hearing loss; however, the evidence that has been obtained related to these claims is not relevant to the period on appeal prior to February 24, 2020. As noted above, the Veteran has already been awarded TDIU effective February 24, 2020, and the Veteran has not asserted, nor does the evidence show, that these disabilities impacted the Veteran’s ability to maintain or obtain substantial gainful employment prior to February 24, 2020. Conversely, in his February 2020, VA Form 21-8940, application for TDIU, the Veteran reported that his PTSD is a major issue and his tinnitus is minor. He indicated that he was a lawyer and that he became too disabled to work in January 2015. He reported that he only took contingency work and that he almost never won. He further reported that he quit taking clients in 2015 and that he was finishing up his remaining obligations. Prior to February 24, 2020, the evidence shows that the Veteran’s PTSD symptoms cause occupational and social impairment due to mild or transient symptoms as evidenced in his December 2018 PTSD examination. Additionally, as explained previously, the Board found that his symptoms were no more than moderate in severity. Although the Veteran contended that he almost never won his cases and that his PTSD prevents him from working, he reported otherwise in his April 2018 initial evaluation. Notably, the Veteran reported having a successful career as an attorney, and that he currently has a small practice as a plaintiff’s attorney. Similarly, he denied occupational difficulties in his December 2018 PTSD examination. He stated that he was finishing up work on one case for a client, but that he was no longer taking new clients. There is no evidence that any of the Veteran’s service-connected disabilities led to his decision to stop taking clients. The Board notes that in a July 2019 mental health session, the Veteran reported that he tapered off his practice over the past two years; and, in his April 2020 PTSD examination, he reported that he retired from law. The record also shows that the Veteran began receiving benefits from the Social Security Administration (SSA); however, this appears to have been due to the Veteran’s age and not due to any disability. Notably, the Veteran adamantly denied having any medical records with SSA in an April 2020 written correspondence. Therefore, based on the above, the Board finds a TDIU is not warranted for the period prior to February 24, 2020 as the evidence does not show that any of the Veteran’s service-connected disabilities precluded the Veteran from working. Rather, the evidence shows that the Veteran had a successful practice with no occupational difficulties and that he slowly transitioned into retirement at his own discretion. This finding also suggests the Veteran was gainfully employed in an occupation that provides an annual income that exceeds the poverty level threshold, in which the Veteran would not qualify for TDIU. As such, the Board finds the preponderance of evidence is against the claim and the benefit-of-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, entitlement to TDIU prior to February 24, 2020 is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.