Citation Nr: 22014097 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-08 042 DATE: March 11, 2022 ORDER Entitlement to a rating in excess of 70 percent for adjustment disorder with chronic depressed mood is denied. Prior to July 13, 2018, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected adjustment disorder with chronic depressed mood, at worst, resulted in occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 2. The evidence of record does not reflect that the Veteran was unable to secure or follow a substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for adjustment disorder with chronic depressed mood have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code (DC) 9440-9434. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1956 to May 1960. The Veteran died in November 2018. See April 2021 Death Certificate. The appellant, the Veteran's surviving spouse, has been properly substituted in this case. See November 2020 Correspondence. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, these matters were previously before the Board in August 2021, when they were remanded for additional development. During the pendency of the appeal, a January 2017 rating decision granted an increased 70 percent disability rating for adjustment disorder with chronic depressed mood, effective December 30, 2014. See January 2017 Rating Decision Narrative. As this rating is not the maximum allowable, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 70 percent for adjustment disorder with chronic depressed mood is denied. As an initial matter, the Veteran filed his claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), in December 2014, and in March 2016, the RO granted service connection for adjustment disorder with chronic depressed mood and assigned a 30 percent rating, effective September 4, 2015. See March 2016 Rating Decision Narrative. Thereafter, in a May 2016 rating decision, the RO granted an earlier effective date for service connection for adjustment disorder with depressed mood, effective December 30, 2014, and a subsequent January 2017 rating decision granted service connection for depressive disorder, evaluated with adjustment disorder, and assigned an increased 70 percent disability rating, effective December 30, 2014. See January 2017 Rating Decision Narrative. The Veteran's service-connected unspecified trauma and stressor related disorder has been rated by analogy under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9440-9434. Under the General Rating Formula, a 70 percent rating is assigned for a psychiatric disorder manifested by 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), or an inability to establish and maintain effective relationships. Id. Under the General Rating Formula, a maximum 100 percent rating is assigned for a psychiatric disorder manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. If the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Turning to the evidence of record, the Veteran endorsed experiencing dreams with acting out, hypervigilance, and indicated that he tried to avoid news stories that reminded him of his time in service in March 2014. In support of his claim, the Veteran submitted a private psychological evaluation from Dr. James R. Tuorila, dated in September 2015. Dr. Tuorila indicated that he performed a 90 minute interview and performed a 30 minute review of the Veteran's records. During the interview, the Veteran endorsed experiencing impaired concentration, hypervigilance, unprovoked irritability, difficulty controlling his anger, avoidance, depressed mood, and difficulty expressing feelings to the appellant and his children. The Veteran reported that he was not a member of any veterans or fraternal organizations. However, he also stated that he talked about his service when he went to a Pow Wow twice a year and indicated that he continued to enjoy deer hunting, setting fish nets, and ricing. He further reported that he had four children from two prior marriages before he married the appellant, who had six children in 1997, and indicated that they had 40 grandchildren. Dr. Tuorila indicated that the Veteran's hygiene was adequate, but the appellant indicated that the Veteran would go weeks without showering and indicated that she only reminded him to get cleaned up when they had to go someplace. The Veteran also reported that he fought in his sleep, which caused him to hit the appellant a few times in his sleep. Psychological testing completed in connection with the evaluation indicated that the Veteran was perceptive and socially reliant, self-reliant, and independent. Testing further showed that the Veteran may be described by others as cynical, sarcastic, moody, irritable, and restless, avoided close relationships, and may have difficulty concentrating and appeared agitated at times. Following an evaluation, Dr. Tuorila indicated that the Veteran should continue volunteering with the appellant when his health allowed. See September 2015 Medical Treatment Record Non-Government Facility. The Veteran also submitted a private Disability Benefits Questionnaire (DBQ) for mental disorders from Dr. Tuorila dated in September 2015. Dr. Tuorila diagnosed the Veteran with depressive disorder due to another medical condition with depressive features, which was manifested by total social and occupational impairment. During the examination, the Veteran reported that he had been married three times and had four children. He further noted that he had several half siblings but indicated that the majority of his family members were deceased. The Veteran also indicated that he was employed in a factory and as a welder until 1979 and subsequently taught Ojibway language with the appellant across the American Midwest. Dr. Tuorila reported that the Veteran's diagnosed depressive disorder due to another medical condition with depressive features was manifested by depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions, and recent events, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. See September 2015 Medical Treatment Record Non-Government Facility. VA obtained an addendum medical opinion in January 2016. The examiner, in pertinent part, opined that it was almost completely unfounded to conclude that the Veteran was totally and socially occupationally impaired due to depression, based on the information provided in the September 2015 private medical evaluation. In support of his opinion, the examiner noted that the report indicated that the Veteran "sometimes" felt depressed about his medical issues and his Minnesota Multiphasic Personality Inventory-2 test was not suggestive of significant emotional distress. Rather, he indicated that the private physician's findings suggested mild impairment due to depression. See February 2016 C&P examination. The Veteran underwent a VA examination for mental disorders in March 2016. The examiner noted that the Veteran had been diagnosed with adjustment disorder with chronic distressed mood, which was manifested by 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 of symptom controlled by medication. During the examination, the Veteran reported that he had been together with the appellant since 1990 and married since 1993 and described their relationship a very close. He further stated that he had four children, the appellant had six children, and that they had more than 30 grandchildren. To this end, the Veteran indicated that the appellant's son, who had mental health and substance abuse issues, and two of their grandchildren lived with him and the appellant. He further noted that he was in the process of adopting both grandchildren. He further noted that he had one sister, who came to visit him every two to four weeks and a half-brother. He noted that the appellant had friends from work and indicated that he previously worked as a welder and schoolteacher; more recently, he helped the appellant, who worked as a consultant teaching Ojibway language and writing books, until 2009. The Veteran also endorsed experiencing depressed mood, chronic sleep impairment, low energy, and occasional feelings of worthlessness, and the appellant noted that the Veteran was angry and that he "[fought] at night." To this end, the Veteran stated that he woke up four to five times per night to go to the bathroom, which limited his sleep to approximately four to five hours per night. The examiner noted that the Veteran was alert and oriented to person, place, and time, and that he was accompanied by the appellant to assist with understanding examination questions. His gait was noted to be unsteady, and the examiner noted that the Veteran displayed several tics, including tongue nad eye tics, and visible tremors in both of his arms and hands. The examiner found that the Veteran's speech was mumbled and that he had significant difficulty hearing the examiner. However, he interacted in a logical, coherent, and cooperative fashion, and his observed affect was mildly constricted. The Veteran denied feelings of hopelessness and suicidal ideation and the examiner found no signs of any though disorders, hallucinations, or delusions. However, the examiner also found that the Veteran's reliability and credibility were diminished due to poor hearing. See March 2016 C&P examination. In a March 2016 correspondence, the Veteran contended that the March 2016 VA examination report should be considered inadequate because the examiner did not perform any objective testing or questionnaires and asked him to diagnose himself. In contrast, he indicated that Dr. Tuorila's September 2015 VA examination should be afforded greater probative weight. To this end, he indicated that Dr. Tuorila performed multiple psychological tests, spent 90 minutes with him, and determined that his symptoms included near continuous depression and panic attacks that affected is ability to function independently and appropriately, including unprovoked irritability with periods of violence. See March 2016 VA Form 21-4138 Statement in Support of Claim; see also January 2017 VA Form 9. In a June 2016 letter, Dr. Tuorila reported that depressive disorder due to bilateral hearing loss and trigeminal nerve left facial palsy with depressive features more closely reflected the Veteran's mental health condition than an adjustment disorder with chronic depressed mood. In this regard, Dr. Tuorila found that the Veteran's symptoms included flattened affect, difficulty maintaining effective work and social relationships, impaired memory, and disturbance of motivation and mood and indicated that he did not demonstrate abstract thinking abilities. In May 2018, the Veteran endorsed frustration related to his health problems and irritability when he had trouble hearing others, and the appellant reported that he appeared down and was often angry and irritable. She also denied that the Veteran exhibited any physical aggression but did acknowledged that the Veteran yelled at her. In addition, the Veteran denied any suicidal ideation, intent, planning, and behavior and indicated that his "job [was] not done yet, clarifying that his mission was to teach Native American children their language. To this end, he indicated that he had taught many children and continued to write and illustrate books. The assessment was adjustment disorder with chronic depressed mood. A May 2018 mental health note shows that the Veteran expressed concerns about depression and irritability. He also reported fighting in his sleep and expressed worry about bodily harm to himself and the appellant. To this end, he indicated that he had punched out and broke his right hand on the nightstand, hurt his left hand, and kicked and hit the appellant in his sleep. The appellant indicated that he seemed to quit everything approximately three to four years prior but noted that she was able to encourage him to get back to drawing, illustrating, and writing. To this end, she noted that he was able to relax his mind and body and concentrate to be able to minimize his tremors and allow him to be more functional. The Veteran denied suicidal and homicidal ideation and psychosis. See November 2018 CAPRI. In a February 2019 statement, the appellant reported that she had known the Veteran since 1971 and indicated that he worked as an artist and an Ojibwe language teacher from 1971 until his death in November 2018. See February 2019 VA Form 21-4138 Statement in Support of Claim. After a review of the evidence of record, the Board finds that a rating in excess of 70 percent for adjustment disorder with chronic depressed mood is not warranted. As noted above, the Veteran intermittently endorsed chronic sleep impairment, fatigue, low energy, depressed mood, flattened affect, feelings of worthlessness, nightmares, hypervigilance, heightened startle effect, unprovoked irritability, anger, impaired memory and concentration, and difficulty in establishing and maintaining effective work and social relationships. Thus, the Board finds that the Veteran's service-connected PTSD does not more nearly approximate the criteria for a 100 percent disability rating, as it was not shown to be manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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. To this end, although the Veteran intermittently reported social avoidance and isolation, the evidence of record does not support a finding of total social impairment. However, the Board notes that the evidence of record shows that the Veteran maintained a close relationship with the appellant throughout the period on appeal. He also reported that he and the appellant had 10 total children, one of whom lived with the Veteran and the appellant, approximately 40 grandchildren, and one sister who came to visit him every two to four weeks. See March 2016 C&P examination. He also indicated that he and the appellant were in the process of adopting two of their grandchildren during the March 2016 VA examination. See March 2016 C&P examination. In addition, the evidence of record shows that the Veteran attended Pow Wows twice per year and continued to work as an artist and as an Ojibwe language teacher from 1971 until his death in November 2018. See February 2019 VA Form 21-4138 Statement in Support of Claim. Therefore, total social impairment is not demonstrated. The Board further notes that the Veteran reported that he fought in his sleep, which had resulted in injury to himself and the appellant. Specifically, he indicated that he broke his right hand on the nightstand, injured his left hand, and noted that he had kicked and hit the appellant in his sleep. However, although the appellant acknowledged that the Veteran yelled at her when he became angry, she and the Veteran consistently denied physical aggression while he was awake. See November 2018 CAPRI. Thus, as the Veteran's physically violent behavior was limited to sleep, the Board finds that this is more consistent with nightmares and hypervigilance than to a propensity toward physical violence. Moreover, it must be noted that the Veteran never endorsed any history of suicidal or homicidal ideation during his lifetime. Therefore, the Board finds that these symptoms do not reflect a persistent danger of hurting self or others nearly, and as such, do not approximate those associated with the 70 percent rating criteria. The Board recognizes that, in the September 2015 private DBQ and private psychological evaluation, Dr. Tuorila found that the Veteran's depressive disorder due to another medical condition with depressive features was manifested by total social and occupational impairment. It is noted that the Board is entitled to attribute more probative weight to the opinions of VA examiners as opposed to the findings of private medical professionals, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D'Aires v. Peake, 22 Vet. App. 97 (2008); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). To that end, the Board concludes that the evidence of record does not show that the Veteran's service-connected adjustment disorder with chronic depressed mood resulted in total occupational and social impairment. Specifically, as noted the Veteran did engage in some social interaction, most significantly with his spouse, and also continued to work with children in his role as a language instructor. Therefore, while the Board does consider Dr. Tuorila's findings to be competent, ultimately his determination that the Veteran experienced total social and occupational impairment as due to his psychiatric disorder does not accord with the evidence of record. In addition, the Board finds it significant that the January 2016 VA examiner found that it was almost completely unfounded to conclude that the Veteran was totally and socially occupationally impaired due to depression, based on the information provided in the September 2015 private medical evaluation. In this regard, the examiner noted that the report indicated that the Veteran "sometimes" felt depressed about his medical issues and diagnostic testing performed in conjunction with the evaluation; indeed, the January 2016 VA examiner suggested that instead the Veteran exhibited only mild impairment due to depression rather than significant emotional distress. See February 2016 C&P examination. Lastly, the Board recognizes the Veteran's argument that the March 2016 VA examination did not accurately reflect the Veteran's symptoms at that time. In this regard, the Veteran challenged the validity of the March 2016 examination because the examiner did not perform any objective testing or questionnaires and asked the Veteran to diagnose himself. See March 2016 VA Form 21-4138 Statement in Support of Claim. However, the Board finds this argument unpersuasive. To this end, there is no indication, other than the Veteran's assertion, that the March 2016 VA examiner did not fully address the severity of his PTSD. The report reflects that the Veteran's adjustment disorder with chronic depressed mood symptoms were identified, a mental status evaluation was performed, and the Veteran's reports of his then symptomatology were noted. See July 2016 CAPRI. Accordingly, the record does not reflect that the VA examination was inadequate. Based on the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 70 percent for the Veteran's service-connected adjustment disorder with chronic depressed mood. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Prior to July 13, 2018, entitlement to a TDIU is denied. By way of background, in an April 2021 decision, the Board found that the issue of entitlement to a TDIU had been raised by the record. As such, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for entitlement to a TDIU was considered part and parcel to the Veteran's claim for an increased rating for his service-connected adjustment disorder with chronic depressed mood, which was filed on December 30, 2014. See December 2014 VA Form 21-526b, Veteran Supplemental Claim. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with their education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) above. The Board notes that the Veteran is service connected for the following disabilities: large cell neuroendocrine carcinoma of the left lower lobe of lung with asbestosis rated as 100 percent disabling from July 13, 2018; bone cancer rated as 100 percent disabling from July 13, 2018; liver cancer rated as 100 percent disabling from July 13, 2018; adjustment disorder with chronic depressed mood rated as 70 percent disabling from December 30, 2014; bilateral hearing loss with suppurative otitis media of the right ear rated as non-compensable from March 19, 2016 to February 16, 2011, as 10 percent disabling from February 16, 2011 to December 30, 2014, and as 60 percent disabling thereafter; tinnitus rated as 10 percent disabling from March 19, 2010; trigeminal nerve left facial palsy rated as 10 percent disabling from December 30, 2014; facial nerve left facial palsy rated as 10 percent disabling from December 30, 2014; chronic otitis externa of the left ear rated as non-compensable from December 30, 2014; and asbestosis rated as non-compensable from July 13, 2018. See October 2021 Rating Decision Codesheet. Thus, the Board notes that the Veteran's combined disability rating was 90 percent from December 30, 2014 to July 13, 2018. See October 2021 Rating Decision Codesheet. As such, he meets the schedular rating criteria throughout the relevant period. With regards to the period from July 13, 2018 to the date of his passing, the Board notes that the Veteran was already in receipt of a 100 percent rating, and so assignment of TDIU from this date would not increase the overall compensation owed to the appellant. Furthermore, as the Veteran was already in receipt of special monthly compensation (SMC) at the housebound rate during this same appeal period, the question of entitlement to SMC is also not raised. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Turning to the evidence of record, in a September 1991 decision, the Social Security Administration (SSA) found the Veteran to be disabled as of September 10, 1990. Specifically, the Court found that the Veteran was severely impaired by his diagnosed degenerative disc disease of the lumbar spine, which caused pain and limitation of motion. The SSA decision also indicates that the Veteran completed and graduated from a high school equivalency program, and that he retained the ability to perform light work. See January 2015 Third Party Correspondence. The Veteran received a handicap parking permit for his nonservice-connected degenerative disc disease of the lumbar spine in September 2014. At that time, he reported that he was unable to walk 200 feet without stopping to rest. See January 2015 Medical Treatment Record Non-Government Facility. The Veteran underwent a VA examination for ear conditions in April 2015. The examiner noted that the Veteran's diagnoses included chronic otitis externa, chronic suppurative otitis media, and left facial palsy associated with severe otitis externa. After performing the examination, the examiner determined that the Veteran's ear and peripheral vestibular conditions caused balance issues, which would render him unable to work as a welder, as he had when he was younger. In addition, following an April 2015 VA examination, the examiner opined that the Veteran's right ear mixed hearing loss and bilateral sensorineural hearing loss prevented him from hearing anything without his hearing aids. The examiner also found that the Veteran's tinnitus caused functional impairment, to include ringing in his ears. During an April 2015 VA examination for cranial nerve diseases, the Veteran reported that his left facial palsy associated with severe otitis externa was manifested by mild dull pain and numbness in his left upper face, eye, and/or forehead, mid face, lower face, and side of mouth and throat, and the examiner found moderate, incomplete paralysis in the Veteran's trigeminal and facial cranial nerves. However, following the examination, the examiner opined that the Veteran's left facial palsy associated with severe otitis externa did not impact his ability to work. See May 2015 C&P examination. The Veteran also underwent a VA audiology examination in August 2015. During the examination, the Veteran endorsed experiencing constant bilateral tinnitus and bilateral conductive impairment; however, following the examination, the examiner opined that the Veteran's hearing impairment did not prevent attainment of gainful employment. See August 2015 C&P examination. A private DBQ for mental disorders, dated in September 2015, shows that the Veteran's depressive disorder due to another medical condition with depressive features was manifested by total social and occupational impairment. During the examination, the Veteran indicated that he was employed in a factory and as a welder until 1979 and subsequently taught Ojibway language with the appellant across the American Midwest. The Veteran's symptoms included mild memory loss, such as forgetting names, directions, and recent events, impaired abstract thinking, and difficulty in establishing and maintaining effective work and social relationships. See September 2015 Medical Treatment Record Non-Government Facility. In addition, a September 2015 private psychological evaluation from Dr. Tuorila, shows that the Veteran continued to enjoy deer hunting, setting fish nets, and ricing; following an evaluation, Dr. Tuorila indicated that the Veteran should continue to volunteer with the appellant when his health allowed. See September 2015 Medical Treatment Record Non-Government Facility. VA obtained an addendum medical opinion in January 2016. The examiner, in pertinent part, opined that it was almost completely unfounded to conclude that the Veteran was totally and socially occupationally impaired due to depression, based on the information provided in the September 2015 private medical evaluation. In support of his opinion, the examiner noted that the report indicated that the Veteran "sometimes" felt depressed about his medical issues and found that objective testing completed in connection with the evaluation was not suggestive of significant emotional distress. To the contrary, the examiner indicated that the private physician's findings suggested mild impairment due to depression. See February 2016 C&P examination. The Veteran underwent a VA examination for mental disorders in March 2016. The examiner noted that the Veteran had been diagnosed with adjustment disorder with chronic distressed mood, which was manifested by 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. See March 2016 C&P examination. In November 2017, the Veteran reported that his service-connected hearing loss with chronic otitis media, facial tremor, and depression prevented him from securing or following any substantially gainful employment. To this end, he reported that he worked as a teacher until 2010 and indicated that he left his position because of his disability. The Veteran also stated that he attended one year of high school and reported that he continued to receive minimal income, to include $8,000 during the preceding 12 months, from assisting with Ojibwe language classes at universities where the appellant taught. See November 2017 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran subsequently reported that he was not able to work other than to assist the appellant in teaching Ojibwe language classes and argued that such should be considered a protected work environment as the appellant asked the universities to pay the Veteran to speak his native language to her classes. See March 2018 VA Form 21-4138 Statement in Support of Claim. In a February 2019 statement, the appellant reported that she had known the Veteran since 1971 and indicated that he worked as an artist and an Ojibwe language teacher from 1971 until his death in November 2018. See February 2019 VA Form 21-4138 Statement in Support of Claim. In February 2022, the appellant reported that the Veteran's hearing loss, facial tremor, depression, and asbestosis prevented him from securing or following any substantially gainful occupation. To this end, she indicated that the Veteran worked as a teacher from 2000 through 2004 and from 2008 through 2010, and that he left his last job because of his disabilities. She further noted that he attempted to obtain a teaching job in 2013 but had been unsuccessful. See February 2022 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Following a review of the evidence of record, the Board finds that entitlement to a TDIU is not warranted. As an initial matter, the Board finds the Veteran's work teaching Ojibwe language classes with the appellant to be marginal employment because his earned annual income does not appear to have exceeded the amount established by the U.S. Department of Commerce, Bureau of the Census as the poverty threshold for one person. "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 v. Derwinski, 1 Vet. App. 356, 358 (1991). Thus, the Board finds that the Veteran did not have substantially gainful employment at any time during the period on appeal. However, the Board finds that the most probative evidence of record reflects that the Veteran was not unemployable due solely to his service-connected disabilities. In this regard, the Board finds that the Veteran's service-connected adjustment disorder with chronic depressed mood did not render him totally unemployable. To the contrary, the March 2016 VA examiner found that the Veteran's adjustment disorder with chronic distressed mood was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, and as stated above, the Board finds that the Veteran's symptoms, at worst, resulted in occupational and social impairment with deficiencies in most areas. See March 2016 C&P examination. The Board recognizes that the September 2015 private DBQ for mental disorders shows that the Veteran's service-connected psychiatric disorder was manifested by total social and occupational impairment. See September 2015 Medical Treatment Record Non-Government Facility. However, as discussed above, the Board finds that the private physician's findings are contradicted by the other medical evidence of record. In this regard, the Board finds it significant that the VA examiner who proffered the February 2016 addendum medical opinion opined that it was almost completely unfounded to conclude that the Veteran was totally and socially occupationally impaired due to depression based on the information provided in the September 2015 private medical evaluation. Specifically, the examiner noted that the report indicated that the Veteran "sometimes" felt depressed about his medical issues and explained that objective testing completed in connection with the evaluation suggested mild impairment due to depression. See February 2016 C&P examination. The Board further recognizes that the Veteran's service-connected bilateral hearing loss with suppurative otitis media of the right ear and chronic otitis externa of the left ear prevented the Veteran from hearing without hearing aids and interfered with his balance. See, e.g., May 2015 C&P examination; August 2015 C&P examination. However, the examiners of record did not indicate that the Veteran's bilateral hearing loss and ear-related disabilities precluded him from obtaining or maintaining employment, and the August 2015 VA examiner explicitly found that the Veteran's hearing impairment did not prevent attainment of gainful employment. See August 2015 C&P examination. The Board also notes that SSA found the Veteran to be disabled as of September 10, 1990, due primarily to his non-service-connected degenerative disc disease of the lumbar spine. The Board observes that SSA's legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA's framework for determining entitlement to a TDIU. Therefore, SSA determinations are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, in the present case, the SSA decision also shows that the Veteran completed and graduated from a high school equivalency program, and that he retained the ability to perform light work. Thus, the Board finds that the SSA decision supports the Board's conclusion that the Veteran was not precluded during his lifetime from obtaining or maintaining substantial gainful employment due to his service-connected disabilities. Notably, the question of employability is ultimately a legal one. In this regard, while the Board acknowledges that the VA examiners found that the Veteran's service-connected disabilities cause functional impairment, none of the VA examiners indicated that the Veteran's functional limitations wholly prevented employment. To the contrary, the August 2015 audiology examiner explicitly found that the Veteran's bilateral hearing loss and tinnitus did not prevent attainment of gainful employment. See August 2015 C&P examination. Moreover, the evidence of record shows that the Veteran has intermittently attributed his inability to obtain and maintain employment to non-service connected disabilities, to include his lumbar spine disability. See January 2015 Third Party Correspondence. In view of the foregoing, the Board finds that the evidence is persuasively against the claim for entitlement to a TDIU. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.