Citation Nr: 1314706 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-07 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 60 percent for status post retinal detachment with cataract extraction of the right eye. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to February 1966. This matter was previously before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for TDIU and a rating in excess of 60 percent for status post retinal detachment with cataract extraction of the right eye. Thereafter and by way of an October 2008 rating determination, the RO proposed to reduce the rating for the right eye disability to 30 percent on the basis of clear and unmistakable error (CUE) in an August 2004 rating decision. In December 2008, the rating for the right eye disability was reduced to 30 percent, effective March 1, 2009. The 60 percent rating for the right eye disability was restored by a February 2012 Board decision and implemented by a rating decision dated later in that month. In addition to restoring the 60 percent rating for the service-connected eye disability, the Board in February 2012 remanded the issues of entitlement to a rating in excess of 60 percent for the service-connected eye disability and TDIU. The development requested with respect to these issues has been accomplished, and these issues are now ready for appellate review. In September 2009, the Veteran testified at a Travel Board hearing before an Acting Veterans Law Judge who has since left the Board's employ. A transcript of that hearing is of record. In an October 2012 letter, the Veteran was informed of his right to attend another hearing in light of the fact the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 C.F.R. § 7107(c); 38 C.F.R. § 20.707. He responded in November 2012 that he did not wish to appear at another hearing and that he desired consideration of the case based on the evidence of record. As noted by the Board in February 2012, during the September 2009 hearing, the Veteran raised the issue of entitlement to service connection for glaucoma as secondary to his service-connected right eye disability. See Board Transcript at 23. This matter was referred to the RO for appropriate action in the first instance by the Board in February 2012. As the record does not reflect that the requested action was completed, this matter is again referred to the RO for appropriate action. FINDINGS OF FACT 1. Visual acuity in the right eye is limited to no more than light perception and left eye vision is shown to be better than 20/200. 2. The only service connected disability is status post retinal detachment with cataract extraction of the right eye, rated 60 percent disabling. 3. The Veteran has education through four years of college and has work experience as an accountant; he reported in his application for TDIU that he became too disabled to work in April 2001. 4. The Veteran's service-connected eye disability does not prevent him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for status post retinal detachment with cataract extraction of the right eye are not met. 38 U.S.C.A. §§ 1155, 5103A, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 (2012); 4.84a, Diagnostic Codes (DCs) 6008, 6061-6079 (2004). 2. The criteria for assignment of a TDIU have not been met. 38 U.S.C.A §§ 5103A, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). For increased rating claims as involved with the instant case, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, and 1280-81 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied and was timely. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). March 2006, May 2006, and October 2006 letters, in their totality, contained the required content of notice and were sent to the Veteran prior to initial adjudication. Additionally, the Veteran was represented by a certified Veterans' service organization throughout the claims process. Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. VA's duty to assist the Veteran has also been satisfied in this case. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and private medical records have been obtained. VA provided the Veteran with medical examinations, most recently in March 2012, relevant to the disabilities on appeal. Taken together, the examinations are adequate because they contain a history obtained from the Veteran and thorough ophthalmologic findings, including those related to visual acuity, relevant to the applicable rating criteria. As indicated, the appeal was remanded by the Board in February 2012, and that remand conferred upon the appellant the right to compliance with the instructions therein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The instructions of this remand were to obtain and associate with the claims file copies of all records of treatment received by the Veteran at the Northport VAMC, or any other VA medical facility, for his eyes from November 2008 to the present; contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of any records concerning a claim for SSA benefits filed by the Veteran, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based; arrange for a VA eye examination to determine the current severity of his service-connected right eye disability; and obtain a social and industrial survey. The claims file documents receipt of the additional VA medical records since the February 2012 remand, dated through March 2012 and contained in the Virtual VA file (VA's electronic data storage system). (The September 2012 supplemental statement of case documents consideration of these records, as required by 38 C.F.R. § 20.1304(c). Also received since the remand were reports from a June 2008 SSA disability determination and the records, to include medial reports, used in making this determination. The Veteran was also afforded a VA eye examination and social and industrial survey in March 2012 that reflect compliance with the requests of the February 2012 remand. As such, the Board finds that there has been substantial compliance with its previous remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. As such, the Board may proceed to adjudication of this appeal. II. Factual Background, Legal Criteria, and Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. A. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. In an August 2004 rating decision, the RO granted service connection for status post retinal detachment with cataract extraction, right eye, and assigned a 60 percent evaluation under 38 C.F.R. § 4.84a DCs 6008-6069 (2004). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. This 60 percent rating, following its restoration by the Board and RO as set forth previously, remains in effect. Pursuant to DC 6008 (2004), detachment of the retina is rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology, with a minimum rating during active pathology of 10 percent. 38 C.F.R. § 4.84a, DC 6008. The severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a (2004). Under these criteria, impairment of central visual acuity is evaluated from noncompensable (0 percent) to 100 percent based on the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, DCs 6061 to 6079 (2004). The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a (2004). The Board notes that the criteria for rating impairment of central visual acuity are based on service-connected loss of vision in both eyes, that is, with both eyes being service-connected. 38 C.F.R. §§ 4.75, 4.79, 4.80, 4.83, 4.83a. In this case, service connection is not in effect for the left eye. The version of 38 C.F.R. § 3.383(a)(1) that was in effect in 2004 provided that compensation is payable for blindness in both eyes even when only one eye is service connected. The corresponding rating criteria for the eyes set forth in 38 C.F.R. § 4.84a, Table V (2004), see also 38 C.F.R. § 4.83a, however, did not at that time provide any guidance as to how to rate a nonservice-connected eye that is not totally blind or only has light perception or anatomical loss. Rather, the only way that was provided to assign a rating under the table at that time was to select a degree of visual acuity of the other eye and the service-connected blind eye. While the rules for how to consider a nonservice-connected eye for rating purposes were revised effective December 10, 2008, these amended criteria govern cases only when the claim is filed on or after that date. See 73 Fed. Reg. 66,549 (Nov. 10, 2008) (codified as 38 C.F.R. § 4.75(c)). Since the claim in this case was filed in November 2005, the rating criteria revised effective December 10, 2008, are not applicable. Pertinent clinical evidence of record includes a evidence included a January 2003 private ophthalmologist's report indicating that the Veteran had total loss of vision, with no light perception, in the right eye and 20/20 vision in the left eye. Also of record was a December 2003 VA examination confirming no vision in the right eye and demonstrating near uncorrected vision of 20/100 in the left eye. At a June 2006 VA examination, when asked about his current eye problems, the Veteran responded that he is blind in his right eye and needs to take eye drops for pressure in this eye. It was noted that the Veteran wears protective lenses full time and that he sees "extremely well" out of his left eye. He did not complain about eye pain and it was reported that there were no periods of incapacitation due to the eyes. The Veteran also denied double vision; "blacking out" of vision; or seeing flashing lights. Visual acuity testing showed no light perception in the right eye and uncorrected distant vision in the left eye and corrected near vision to 20/20. There was no diplopia on any field of gaze. Visual field testing was not possible in the right eye and full to finger counting in the left. The evaluation of the anterior segment of the Veteran's eyes at the June 2006 VA examination revealed extensive corneal scarring and vascularization in the right eye. The lid, lashes, conjunctiva, and iris were normal in both eyes. The cornea in the left eye was normal as was the pupil in the left eye. Examination of the right eye was not possible due to corneal scarring. The diagnoses included aphakic bullous keratopathy, aphakia, and neurovascular glaucoma in the right eye and history of retinal detachment in the right eye with no light perception. The visual acuity shown on the March 2012 VA eye examination conducted pursuant to the request of the Board remand again demonstrated vision in the right eye that was so limited to there being no light perception. Uncorrected distant vision in the left eye was said to be 20/40 or better and uncorrected near vision in the left eye was to 20/100. Corrected distant and near vision in the left eye was said to be 20/40 or better. The Veteran was said to not have a severe astigmatism or diplopia. The slit lamp and external eye examination showed bullous keratopathy/extensive scarring in the right cornea. The anterior chamber, iris, and lens in the right eye were not visible due to scarring. With respect to the internal examination of the right eye, the optic disc, macula, vessels, vitreous, and periphery in that eye were not visible due to scarring. There were no visual field defects and the examination did not reveal keratoconus or a pterygium. A postoperative cataract in the right eye was noted as was aphakia or dislocation of the right crystalline lens. Glaucoma in the right eye was said to require continuous medication with Betagan, Pred Forte, and Cyclogel. The examiner noted that the right eye condition was stable when compared to the June 2006 VA examination and that because the vision in the left eye was "excellent," the only "real side effect" would be some loss of depth perception. VA outpatient treatment reports primarily reflect treatment for unrelated conditions but do reflect eye clinic visits, to include in August and December 2007 and, as shown in the Virtual File, March 2012. The findings from these eye clinic visits are essentially consistent with those shown on the VA examinations described above or contain findings not directly pertinet to the application of the rating criteria. Under Table V and the criteria codified at 38 C.F.R. § 4.84a DC (2004), based on the findings above of there being no light perception in the service-connected right eye, visual acuity in the left eye would have to be to 20/200 in order for an increased (70 percent) rating to be assigned. Clearly, the vision in the left eye as set forth above does not even approach the severity required for a rating in excess of 60 percent for the service connected right eye disability. As such, an increased rating for the service connected right eye disability may not be assigned, to include on a staged basis, under the applicable rating criteria. See Hart, supra. In making the above determination, the Board has also carefully considered the Veteran's contentions with respect to the nature of the service-connected disability at issue, to include those made in sworn testimony at the September 2009 hearing, and notes that his lay testimony is competent to describe certain symptoms associated with his service connected eye disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected eye disability at issue. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration for any of the disabilities at issue. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected eye disability at issue with the established criteria found in the rating schedule. The Board finds that the eye disability at issue is fully addressed by the rating criteria under which such disability is rated. As noted above, the current rating criteria for a 60 percent evaluation have not been met. As noted in the previous Board decision, the 60 percent rating was erroneously reduced in 2008 as the RO used the wrong rating criteria. In any case, the specific diagnostic criteria adequately addresses the Veteran's symptoms referable to his service-connected eye disability; namely, problems with visual acuity. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected eye disability addressed above. To the extent there are any symptoms not described by the criteria, it has not been shown that such symptoms result in other related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating for is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). With respect to the impact upon employability of the service connected eye disability, this will be addressed in the adjudication entitlement to TDIU below. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In sum, Board finds that the preponderance of the evidence is against the increased rating claim on appeal; as such, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, 1 Vet. App. at 49. B. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled 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 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b(7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). As the Veteran has a single service connected disability rated as 60 percent, the threshold criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a) are met. Thus, as set forth above, the matter for consideration is whether the Veteran's service connected eye disability renders the Veteran unable to secure or follow a substantially gainful occupation. In his VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) filed in November 2005, the Veteran listed education through four years of college and work experience as an accountant. He reported therein that he became too disabled to work in April 2001. With respect to evidence addressing the impact of the Veteran's service connected eye disability on unemployability, when questioned on this matter at the June 2006 VA examination, the Veteran reported that he had not worked in the previous five years but that this was not do to vision problems but due to other issues. The examiner concluded after the examination that his eye disability "would not impact his functioning with regards to employability." He indicated that the only impact of his eye disability would be upon depth perception because he is monocular; as such, a job that required a high level of depth perception could be impacted by his loss of vision in one eye. However, it was noted that with respect to "clarity and all the other aspects of vision," the Veteran sees perfectly. Similar to the conclusions above, the examiner who conducted the March 2012 VA eye examination found that the Veteran's eye disability had no impact on the Veteran's ability to work. The conclusion of the VA social and industrial survey conducted in that month was that, based on the report of the Veteran and evidence of record, the Veteran's visual problems "did not have a profound effect on his ability to succeed both in education and employment." The Veteran's education, to the completion of a bachelor's degree, was discussed, as was his employment history, to include his final position as a manger of an accounting department at a nursing home. It was noted in this survey that when he lost his job at the age of 54, it was the result of new management and not due to problems with his vision. The Veteran reported that he was not able obtain alternate employment thereafter, but the conclusion of the survey was that it would be "difficult to conclude that the reason for this was his visual deficits as he sustained a successful career in his educated field for many years." As the record does not reveal any objective evidence to contradict the conclusions reached above, the Board finds that the preponderance of the evidence is against a conclusion that the Veteran is unemployable due to his service-connected eye disability. The sole fact that a claimant, as in the instant case, become unemployed or has difficulty obtaining employment is not sufficient for a grant of TDIU, and a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As such, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. In this case, the weight of the evidence is simply against the conclusion that his service connected eye disability renders him incapable of working. In making the above determination, the Board also notes that given his comment that it was not problems with vision that had resulted in his not working the prior 5 years to the VA examiner in June 2006, his credibility with respect to this issue is in question. Credibility issues aside however, the Veteran is simply not competent to make a determination as to whether he is unemployable solely due to service connected disability under the pertinent legal criteria. In short, therefore, and for the reasons stated above, the Board finds that the probative weight of the negative evidence exceeds the positive with respect to the claim for TDIU. As such, the benefit of the doubt doctrine is inapplicable with respect to this issue, and the claim for TDIU must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to a rating in excess of 60 percent for status post retinal detachment with cataract extraction of the right eye is denied. Entitlement to TDIU is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs