Citation Nr: 21025579 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-03 616 DATE: April 28, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for major depressive disorder prior to November 12, 2020, is denied. Entitlement to a rating in excess of 50 percent for major depressive disorder from November 12, 2020, is denied. Entitlement to individual unemployability is denied. FINDINGS OF FACT 1. Prior to November 12, 2020, the Veteran’s major depressive disorder did not result in occupational and social impairment with reduced reliability and productivity 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 2. From November 12, 2020, the Veteran's major depressive disorder did not result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 3. The Veteran is not precluded from securing or following all forms of substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to November 12, 2020 the criteria for an initial rating in excess of 30 percent for major depressive disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2020). 2. From November 12, 2020 the criteria for a rating in excess of 50 percent for major depressive disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2020). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from August 1962 to November 1964. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a Board hearing via video conference before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran's claims file. In September 2020, the Board remanded those issues for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In December 2020, the RO granted an increased rating of 50 percent for major depressive disorder, effective November 12, 2020. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. In this case, the Veteran's major depressive disorder disability evaluations have been separated into two stages and as explained in further detail below, additional staged ratings are not warranted. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends that he is entitled to a rating in excess of 50 percent for his major depressive disorder. The Veteran's service-connected major depressive disorder is evaluated under Diagnostic Code 9434. The regulations establish a general rating formula for mental disabilities. 38 C.F.R. § 4.130 (2019). Ratings are assigned according to the manifestation of particular symptoms. Notably, the term such as in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. 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 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 when symptoms such 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 cause total occupational and social impairment. Evidence The Veteran submitted a claim for entitlement to service connection for major depressive disorder in July 2017. At that time, the Veteran had been granted service connection for residuals of tuberculosis with pleural effusion, rated as 30 percent disabling from 1972. In an April 2007 examination for housebound status or permanent need for regular aid and attendance; the examiner stated that the Veteran appeared weak, short of breath and “volume was overloaded”. The examiner indicated that it was difficult for the Veteran to talk due to shortness of breath and he appeared bloated and very ill. The examiner noted that the Veteran needed assistance with dressing, grooming and eating. The examiner further noted that the Veteran required supervision for safety, use of a shower chair and needed help with meals, putting on clothes and shaving. In addition, the examiner stated that the Veteran had weak gait, required a wheelchair, had poor balance and had a risk of falling. The Veteran reported that his shortness of breath made him panic and made him unable to focus. He also stated his memory made him unable to perform basic recall. The Veteran also stated he was unable to travel without supervision and did not drive. In addition, he noted that he did not leave home except for medical appointments and had to be accompanied for safety. The Veteran stated his wife was responsible for his medical needs and daily activities such as supervision and transportation. He also reported due to his condition his wife worked sporadically to pay the bills. See April 2007 VA 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid. In a May 2008 VA treatment record, the Veteran reported that he retired in 1990 due to his type 2 diabetes mellitus. The Veteran previously worked as a police officer. The Veteran indicated that this condition did not affect his usual daily activities. See January 2007 Medical Treatment Record-Government Facility, p.36. In a May 2008 application for unemployability, the Veteran reported that he was self-employed in administration from 1985 to 1991. The Veteran reported that his diabetes, and residuals of tuberculosis were the conditions that prevented him from securing any substantially gainful occupation and was the reason he left his employment. The Veteran also reported he had a degree in political science. See May 2008 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In a November 2008 primary care note, the Veteran stated due to his right shoulder pain he tried to avoid lifting at work and did not type. See September 2009 Medical Treatment Record-Government Facility, p.40. Nevertheless, in a later August 2009 statement in support of claim; the Veteran stated he wanted service connection for TDIU because he was unable to work due to his lack of oxygen and hearing condition. See August 2009 VA 21-4138 Statement In Support of Claim, p.1. In an August 2009 mental health note, the Veteran reported that he hoped to obtain paid employment with the VA, was volunteering quite a bit and was enjoying his work for the operative care division. See September 2009 Medical Treatment Record-Government Facility, p.7. In a July 2016 VA treatment note, it was noted that the Veteran did administrative work at a VA hospital. See July 2017 Capri, p.295. In a September 2016 VA treatment note, the Veteran reported that parts of his life were creating anxiety for him, including having to be a fulltime caregiver for his wife and having to move. He also indicated his biggest issue was lack of sleep and feeling like he was in a danger zone. See July 2017 Capri, p.155. In a December 2016 VA treatment note, the Veteran was listed as being employed. See July 2017 Capri, p.69. In a May 2017 VA treatment note, a clinician noted that there was no evidence of anxiety or depression. The Veteran also did not express any emotional, spiritual or social concerns. See September 2017 Capri, p.98. In August 2017, the Veteran underwent a private psychiatric examination. The Veteran complained of significant depression with suicidal ideation and severe anxiety. The examiner noted that the Veteran was well dressed and had a “verbose” style of interaction. The examiner stated the Veteran’s mood was discouraged and he reported a high degree of depression. The examiner indicated there were mixed results regarding the Veteran’s memory. The Veteran could not spell words backwards which was a sign of memory problems but was able to recite a verbally administered phrase well and was fully oriented and alert. The examiner indicated that the Veteran’s reports were consistent and were taken as valid. The Veteran reported that he contracted tuberculosis at age 20, while he served in the Navy and had suffered ever since that time. He was discharged from the Navy at 21 and was hospitalized several times to have fluid removed from his lungs. He Veteran indicated that in his twenties he worked in production, manufacturing and did electrician jobs. As his respiratory condition worsened, he had to do more activities that required sitting, like hobbies including; card games; movies and visiting with his friends. In his 40’s he owned a risk management company and then managed a temporary employment agency, but issues arose due to his respiratory problems and diabetes. The examiner noted that the Veteran’s mental issues were not the focus of the examination but were “problematic” to the Veteran. The Veteran reported that he was told that he was dying and had 2 years to live, which caused him to be hopeless, discouraged, and suicidal. The Veteran stated he suffered from persistent suicidal thoughts but had never had a plan or desire to harm himself. The Veteran noted that he had anxiety and was terrified of suffocating to death and constantly thought about health, death and relationship issues. The Veteran stated he was afraid his wife would leave him due to his health limitations. The Veteran stated that he woke up at 10AM or later, feeling exhausted. He did the dishes, vacuumed and ran errands. The Veteran stated that he experienced shortness of breath and fatigue after 15 minutes of light work, fr those past 5 years. He indicated that he had been hospitalized 3 times within those past 12 months for pneumonia, he did not handle his finances; did not drive; did not have a social life; could no longer garden and had no hobbies. The examiner found that the Veteran was suffering from severe symptoms of depression and anxiety, related to health issues. While the Board acknowledges that the examiner gave the Veteran a full examination, it appears as though the examiner solely based his opinion on the accounts/ reports of the Veteran. There are inconsistencies such as a previous report of a need for a caregiver for his wife, but that his wife might leave him suggesting she was providing care. The examiner also did not mention the Veteran’s report of performing administrative work in a hospital or other reports of employment. There is no evidence in the medical evaluation or opinion that the examiner reviewed the Veteran’s entire claims file and referenced it as a part of his opinion. In addition, the examiner did not discuss the DSM-5 and the Veteran’s occupational and social impairment as it related to the Veteran’s diagnosed mental illness. See August 2017 Medical Treatment Record-Non-Government Facility. In September 2017, the Veteran was afforded a VA mental health examination. The examiner indicated that the Veteran had a diagnosis of major depressive disorder. The examiner found that the Veteran’s level of impairment was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; although, the Veteran generally functioned satisfactorily with normal routine behavior, self-care and conversation. During the examination the Veteran reported that he had been in a fantastic marriage since 2000. He stated that he was home full time but ran errands and attended appointments. The Veteran noted that he did chores around his home when he was able to; watched television and browsed online in the evenings. In addition, the Veteran indicated that he got together with his friends 2-3 times a month for meals, to play cards and to talk. The Veteran stated he enjoyed talking with his friends, but his depressed mood and irritability interfered with his marriage. The Veteran reported low motivation. The Veteran reported depressed mood for the prior 4-5 weeks and losing 17 pounds over those past 2 months due to poor appetite. The Veteran also indicate that he had suicidal thoughts off and on for those past 2-3 years but had no plan or intent due to his faith. The Veteran had symptoms of depressed mood, anxiety, mild memory loss, such as forgetting names, directions or recent events and disturbances of motivation and mood. The examiner noted that the Veteran was adequately groomed and dressed, was alert and fully oriented to person, place, time and situation. The Veteran was irritable at times but was cooperative, calm, had good eye contact and speech, with clear thought process, goal-directed and logical. The Veteran had current suicidal ideation but no intent or plan and had difficulty with memory of dates and history. The examiner also noted that the Veteran was capable of managing his own finances. In October 2017, the Veteran submitted another unemployability application. The Veteran indicated he was unemployable due to his major depressive disorder. The Veteran seems to be an unreliable historian and consistently contradicted his other previous reports. In this application he stated he became too disabled to work in April 2002 and in a previous form stated he was unable to work after 1991. The Veteran indicated that his last occupation was as a risk manager and he left that position due to his disability. The Veteran stated that he completed high school and three years of college but did not obtain any other eduction before or since he became disabled. See October 2017 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Then, in October 2017, the Veteran submitted a request for employment information application. The Veteran reported that he ended his employment as a CEO/ president of a risk management business in April 2002. The Veteran stated that he worked flexible hours at home away from people and shut down his business due to his major depression. See October 2017 VA 21-4192 Request for Employment Information in Connection with Claim for Disability, p.1. In an October 2018 VA treatment record, the Veteran reported that he was married, retired from the Los Angeles Police Department, he liked to volunteer, liked baseball and hockey, was a movie goer and liked reading and researching. See January 2019 Capri, p.183. In a December 2018 VA note, the Veteran told a physician that he was thinking of going to work full time or at least part time at the VA. See January 2019 Capri, p.12. In July 2020, the Veteran attended a virtual Board hearing. During the hearing the Veteran’s representative testified that an August 2017 psychiatry record indicated that the Veteran was going to die and had two years to live. His representative also indicated that the Veteran felt hopeless, discouraged, suicidal and his mood was mostly depressive, dysthymic and dysphoric. The Veteran’s representative also noted that while the Veteran had suicidal thoughts, he never proceeded with a plan or intent to harm himself. The Veteran testified that he experienced constant and continuous depression and panic but did not experience hallucinations or delusions. During the hearing the Veteran stated that he was tired physically and emotionally and that he did not have the stamina to work. The Veteran reported that he had a hard time breathing and reported that he could not do simple light work for more than 15 minutes without becoming exhausted. See July 2020 Hearing Transcript, p.4;6. The Veteran stated that his respiratory condition had worsened and aggravated his mental disorder making it worsen. The Veteran indicated he worked at a company called risk management service as a consultant to employers, lowering their exposure to risk in labor management and insurance. The Veteran testified that he stopped working probably around 2004-2005. Then his representative noted that it was actually April 2002, according to his application for unemployability. The Veteran testified that he had not received Social Security Administration benefits and had done nothing to obtain them. The Veteran indicated that he desired to do something constructive with the life he had left but he could not work. The Veteran stated he could not function and if he were hired as an employee, he would probably be fired within a week because he was just to physically compromised. He stated he tried to get hired by the VA, but they did not hire him either. See July 2020 Hearing Transcript, p.7;10. In November 2020, the Veteran was afforded another mental disorders VA examination. The examiner indicated that the Veteran had a diagnosis of major depressive disorder, recurrent, moderate, with anxious distress. The examiner noted that the Veteran reported during a BVA hearing the Veteran reported that his condition had worsened, and he reported daily suicide ideation and being unable to work. The examiner noted that the condition was likely related to his major medical concerns. The examiner found that the Veteran’s mental diagnosis met occupational and social impairment with reduced reliability and productivity. At the time of the examination the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood and suicidal ideation. The examiner indicated that the Veteran had trouble remembering dates and times; his mood was dysphoric and irritated. The examiner also stated the Veteran felt worthless and hopeless frequently and that he no longer enjoyed the things he once enjoyed. The Veteran reported daily suicidal ideations with plan to overdose but then then denied suicidal intent or preparation. The examiner stated the Veteran’s record was flagged for being verbally abusive to VA staff and also noted that the Veteran had issues with memory and through with plans and projects at home. The examiner also noted that the Veteran was able to manage his own finances. Major Depressive Disorder Prior to November 12, 2020 Based on a review of the evidence of record the Board finds that a 30 percent rating is warranted for this period of the appeal. During the appeal the Veteran experienced symptoms including depressed mood, irritability, suicidal thoughts on and off, anxiety, difficulty sleeping, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood. These symptoms are contemplated by the current 30 percent rating. The Board recognizes that some of the Veteran's reported symptomology approximates the listed criteria for an evaluation in excess of 30 percent. For example, the isolated reports of suicidal thoughts on and off were not determined to have interfered with occupational or social functioning. The Board also places low credible weight on the reports of suicidal ideations because of the overall history of inconsistent reports of symptoms and because none of these reports were made to treating clinicians, not involved in compensation matters, but rather in a position to provide intervention or therapy. The overall nature, frequency, and severity of his symptoms have not risen to the level of an increased 50 percent evaluation for this period. Taking a holistic analysis of the signs and symptoms of the Veteran's service-connected major depressive disorder, the overall occupational and social impairment caused by these symptoms has not risen to the level of an increased 50 percent evaluation. The Veteran's major depressive disorder has not been characterized by occupational and social impairment with reduced reliability and productivity. Prior to November 12, 2020, the Veteran’s lay statements note the Veteran remained with his spouse since the year 2000 and although his depressed mood and irritability interfered with his marriage; he stated his marriage was fantastic. During his 2017 VA examination the Veteran indicated that he enjoyed spending time and talking with his friends, 2-3 times month. The Veteran also reported being active in running errands and doing chores around his house. In addition, the Veteran reported in July 2016 that he was doing administrative work and in September 2016 reported that he was a full-time caregiver for his wife. There was no indication of circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week or impaired judgment or impaired abstraction thinking. Further, there was no indication of obsessional rituals, illogical, obscure or irrelevant speech, impaired impulse control and/or spatial disorientation. There are instances of suicidal ideation, however he regularly denied thoughts of harming himself or others to his attending clinicians or to September 2017 VA examiner. Mental status examinations note that the Veteran was consistently oriented and displayed good judgment, thinking and normal speech and was appropriately groomed and dressed. The Veteran consistently contradicted himself, where he reported that he remained retired as a police officer since the early 2000’s; however, he reported in other treatment records that he was working in administration as recent as 2016 and did volunteer work, during the period on appeal. Additionally, treatment records note that the Veteran maintained his personal appearance and hygiene and was able to function independently, regularly completing activities of daily living. And the September 2017 VA examiner noted that the Veteran could manage his own finances. The evidence of record shows that the Veteran was able to perform activities of daily living and his overall disability picture is not one of occupational and social impairment with reduced reliability and productivity. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 30 percent for the Veteran's service-connected major depressive disorder for the period prior to November 12, 2020 is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. From November 12, 2020 As reflected above, for the Veteran to receive a higher disability rating for service-connected major depressive disorder, there would need to be a showing of: occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including a work or work-like setting); and an inability to establish and maintain effective relationships. The competent psychological and medical evidence shows that the Veteran's major depressive disorder, at worst, caused depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood and suicidal ideation. The examiner also indicated that the Veteran had trouble remembering dates and times and that his mood was dysphoric and irritated. Here, the Board observes that the competent evidence of record fails to disclose symptomatology indicative, analogous, or suggestive of the higher disability rating, as reflected above. See Mauerhan, Vazquez-Claudio, both supra. The Board considered the Veteran's contentions that he is entitled to a higher rating but notes that sufficient reasoning has not been provided. Although the Veteran testified that he stopped working in April 2002, this is not consistent with VA treatment records. It is also not credible that the Veteran could not work due to his mental illness and respiratory issues since he worked on and off, including as recent as July 2016, doing administrative work. The Veteran also reported that in the same year, he was a full-time caregiver for his wife. Then, in December 2018, the Veteran wrote to his physician and described his computer research on a form of therapy used overseas and indicated that he had considered going back to work full time or part time for VA. In March 2020, he reported that his wife was working out of the home. The Veteran’s reported work history since 2002 demonstrates that his major depressive disorder and respiratory issues was not negatively impacting his ability to succeed in non-physical labor in the workforce. The Board acknowledges the Veteran's sincere belief that the symptomatology of major depressive disorder is more severe than that contemplated by a 50 percent disability. However, as a layperson, the Veteran lacks the specialized training and expertise in psychology or psychiatry to assess the respective severity of major depressive disorder symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Veteran's subjective belief does not rise to the level of competent medico-psychological evidence. The Board finds that the weight of competent lay and medical evidence shows that the overall level of the Veteran's occupational and social impairment from November 13, 2020 is not indicative of a higher rating. A disability rating in excess of 50 percent for major depressive disorder must therefore be denied. Extraschedular Consideration As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Given that the rating criteria for major depressive disorder contemplates the Veteran’s current documented symptoms, the Board finds that the difficulties that the Veteran experiences due to this disability are contemplated by the rating criteria. See AB v. Brown, 6 Vet. App. 35 (1993); see Yancy v. McDonald, 27 Vet. App. 484 (2016). Neither the Veteran nor his representative has identified any symptoms associated with the Veteran's major depressive disorder that are not contemplated by the rating criteria. Therefore, referral for consideration of an extraschedular rating for major depressive disorder is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, an extraschedular rating is not warranted for the Veteran's major depressive disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU The Veteran contends that his service-connected disability has rendered him unable to obtain and maintain gainful employment. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § § 1155; 38 C.F.R. § §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. § §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § § 4.16(a) The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. § § 4.16(a), provide for a TDIU when, due to service-connected disability, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. § §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § § 4.16(b). The Veteran is currently service connected for major depressive disorder with anxious distress rated 50 percent effective from November 12, 2020, tuberculosis rated 30 percent effective from December 13, 1972, tinnitus rated at 10 percent from January 15, 2008 and bilateral hearing loss rated noncompensable from January 15, 2008 for a combined rating of 70 percent effective November 13, 2020. Therefore, the Veteran's combined evaluation for VA compensation purposes was 70 percent with one disability rated at 40 percent or more from November 13, 2020. The Veteran's service-connected disabilities did meet the percentage rating standards for a schedular TDIU from November 12, 2020. See 38 C.F.R. § 4.16(a). The Board acknowledges the Veteran's contentions that he is unable to work due to his service-connected conditions as he is no longer able to work as police officer. The Veteran is competent to report his observations. However, the statements do not show that the Veteran's service-connected disabilities preclude him from engaging in all forms of substantially gainful employment, as they only address his ability to perform as a police officer. In addition, while the Veteran was no longer able to work as a police officer, the record does not show that he unable to performed work that allowed him to sit and work by himself. In a January 2020 outpatient note, the Veteran reported that he had been participating in police “ride along” events and that he was able to use a bicycle to improve leg strength. In a May 2020 VA respiratory examination, the examiner determined that the Veteran’ shortness of breath was also caused by heart failure, age, deconditioning, and obesity but that he would be able to perform work that did not require physical exertion. A TDIU rating is not warranted where a veteran is unable to continue a chosen profession. The Veteran has considerable experience in an administrative profession and at times during the appeal reported performing administrative work and actively seeking employment. As already noted, the determinative question for purposes of TDIU is whether the Veteran's level of disability, given his education, training, and experience, renders it impossible for the average person to obtain or retain substantially gainful employment of some type. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In summary, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders, even when his disabilities are assessed in the context of subjective factors such as his occupational background and level of education. Aside from the Veteran's contentions, there is no objective evidence indicating that the Veteran's service-connected disabilities render him unable to secure substantially gainful employment. While the Board does not doubt that the Veteran's service-connected disabilities have an effect on his employability, the weight of the evidence does not support his contention that his service-connected disabilities are of such severity so as to preclude his participation in any form of substantially gainful employment. The Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 70 percent rating which is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Here, the Board observes that there are no indications in the record which reflect that the Veteran has ever applied for workplace accommodations, as delineated in the Americans with Disabilities Act (ADA) or the Family Leave and Medical Act (FMLA). In addition, the Veteran reported in his unemployability applications that he stopped working due to his disabilities in 1991, then in another application the Veteran stated that he stopped working in his own work from home position 11 years later due to his major depressive disorder. The Veteran stated he had his own business so he could work flexible hours and not have to work around others. Furthermore, there is evidence of record that the Veteran was doing administrative work as recent as 2016 and in October 2018 the Veteran indicated that he liked volunteering, then in December 2018 he indicated that he was considering going back to work full or part time. This evidence proves the Veteran is able to get out and work in some form or capacity. Furthermore, there is no evidence the Veteran was dismissed from any of his positions, he reported that he voluntarily retired as a police officer in 1991 and decided to stop working for his own business in 2002. Moreover, other that the Veteran's subjective accounts, there is no showing that the requisite duties of the Veteran working in sales, or at home administrative type work necessitate full-time interaction with the public or would cause depression or lack of motivation as the Veteran could work for himself as he previously did with no superior and set his own hours. The technical skill set of a salesperson or sales instructor or a person doing administrative work from home can be deployed in ways that do not require extensive interaction with the public or physical demands. There are several sales jobs online that only require basic computer skills where the Veteran can fulfill orders online for several different companies from home, that do not require him to interact with anyone. Or have limited interaction through email. While the Veteran's disabilities and lack of interacting with others would preclude working at a physical demanding job or a job that required interactions with the public; it is highly questionable whether that Veteran lacks basic skills that would allow him to obtain substantial gainful employment with his years of expertise working in a field and vocational training. His knowledge and experience in this occupational field and other more general businesses could be employed in an online sales jobs, administrative work; and other clerical work such as; work scheduling, planning and ordering materials and in associated administrative work that does not require a lot of physical demands, social interactions and allows for periodic breaks. In addition, the Board acknowledges the Veteran indicated several times that he did lots of volunteering, therefore the Veteran could also work in an administrative position for a limited amount of time with the public. Accordingly, the preponderance of evidence is against granting entitlement to a TDIU. As such, the benefit of doubt doctrine is not for application in this case. See 38 U.S.C. § § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.