Citation Nr: 1534900 Decision Date: 08/14/15 Archive Date: 08/20/15 DOCKET NO. 10-49 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for service-connected residuals of cataract surgery of the left eye (38 U.S.C.A. § 1151) from August 11, 2009. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1973 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Providence, Rhode Island, that granted compensation for a detached retina of the left eye due to cataract surgery, under 38 U.S.C.A. § 1151, and assigned an initial noncompensable disability rating, effective as of July 31, 2000. In June 2010, the RO also determined that the Veteran was not entitled to a TDIU. The Veteran expressed disagreement with these decisions and perfected a substantive appeal. In August 2010, the RO determined that clear and unmistakable error had been committed by the RO in assigning the initial effective date of the award of service connection, and corrected the effective date of service connection to be February 11, 2003, the date of the Veteran's claim. The RO also determined that the service-connected residuals of cataract surgery of the left eye warranted an initial 10 percent disability rating from February 11, 2003, to July 12, 2006; a 20 percent disability rating from July 13, 2006, to January 3, 2008; and a 10 percent disability rating from January 4, 2008. In April 2012, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the April 2012 hearing, the undersigned clarified the issues on appeal, inquired as to the etiology and severity of the Veteran's symptoms, and sought information regarding any pertinent treatment. The Board finds that it has fulfilled its duty under Bryant. This matter was previously before the Board in January 2014 at which time the Board adjudicated the issue of an increased initial disability rating prior to August 11, 2009, and remanded the issue of an increased rating thereafter for additional development. The case is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In January 2014, the Board determined that statements by the Veteran during his Board hearing could be construed as a claim for vocational rehabilitation benefits from VA. As the matter was not in appellate status, it was referred to the originating agency for appropriate action. It does not appear that additional action on this matter was undertaken. As such, it is, again, referred to the agency of original jurisdiction for appropriate action. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDINGS OF FACT 1. Prior to his January 1998 cataract surgery, the Veteran's visual acuity was in 20/200 in the left eye and 20/20 in the right eye. 2. Since August 11, 2009, the Veteran has had visual acuity of no more than light perception of the left eye and normal (20/40 or better) corrected visual acuity of the right eye. 3. The Veteran's left eye disability has not exhibited active uveitis since August 11, 2009. 4. The Veteran's service-connected disability does not preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for service-connected residuals of cataract surgery of the left eye (38 U.S.C.A. § 1151), from August 11, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.75 to 4.84a, Diagnostic Codes 6000 to 6099 (in effect prior to December 10, 2008). 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As this claim initially arises as an increased disability rating following the grant of service connection in March 2010, notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claim, namely, 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. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. 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 (2014). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2014); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where a Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002) for a detached retina of the left eye due to surgery at a VA medical center was received on February 11, 2003. Compensation under 38 U.S.C.A. § 1151 for a detached retina of the left eye due to cataract surgery was granted in March 2010. In August 2010, the RO determined that the service-connected residuals of cataract surgery of the left eye warranted an initial 10 percent disability rating from February 11, 2003, to July 12, 2006; a 20 percent disability rating from July 13, 2006, to January 3, 2008; and a 10 percent disability rating from January 4, 2008. During the pendency of the appeal, the criteria for rating eye disabilities were amended. However, because the Veteran filed this claim prior to December 10, 2008, the appeal will be considered under the former criteria. 73 Fed. Reg. 66543 (Nov. 10, 2008). In determining the effect of aggravation of visual disability, even though the visual impairment of only one eye is service connected, the vision of both eyes must be evaluated before and after suffering the aggravation, and subtract the former evaluation from the latter except when the bilateral vision amounts to total disability. See 38 C.F.R. § 4.78. In the event of subsequent increase in the disability of either eye, due to intercurrent disease or injury not associated with the service, the condition of the eyes before suffering the subsequent increase will be taken as the basis of compensation subject to the provisions of 38 C.F.R. § 3.383(a). The United States Court of Appeals for Veterans Claims (Court), in Villano v. Brown, 10 Vet. App. 248, 250 (1997), held that the second sentence of 38 C.F.R. § 4.78 precludes VA from considering any increase in disability in the non-service-connected eye when computing the aggravation of a disability after the initial rating has been made. Here, only the Veteran's left eye disability is treated as if it were service connected. Where service connection is in effect for only one eye, the visual acuity in the non-service-connected eye will be considered to be normal (20/40 or better) unless there is blindness in that eye. 38 U.S.C.A. § 1160(a)(1); 38 C.F.R. §§ 3.383, 4.84; Villano, supra. According to 38 C.F.R. §§ 3.322(a) and 4.22, in cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. In VAOPGCPREC 4-2001, the following fact pattern was presented: ...a Veteran claimed compensation for additional disability resulting from the worsening of his non-service-connected incomplete quadriplegia by therapy he received in a VA hospital. The Board...found that his quadriplegia permanently worsened as a result of the VA treatment and granted entitlement to compensation under 38 U.S.C.A. § 1151 for loss of use of the lower extremities. In implementing the Board's decision, a [RO] assigned a noncompensable disability rating for the incomplete quadriplegia because the condition was totally disabling at the time of the VA treatment and "there is no additional disability to warrant...a higher evaluation." The General Counsel held, based on a literal reading of the language in the above cited statute and regulations, that the provisions of 38 C.F.R. § 3.322(a) and 4.22 are applicable to the rating of a disability for which compensation is payable under the provisions of 38 U.S.C.A. § 1151. The Veteran's left eye disability has been rated under 38 C.F.R. § 4.84a, Diagnostic Code 6029, which provides the rating criteria for aphakia. Under the former rating criteria, a minimum 30 percent disability rating will be assigned for unilateral or bilateral aphakia, which is not to be combined with any other rating for impaired vision. When both eyes are aphakic, both will be rated on corrected vision. The corrected vision of one or both aphakic eyes will be taken one step worse than the ascertained value, however, not better than 20/70. Combined ratings for disabilities of the same eye should not exceed the amount for total loss of vision of that eye unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. See 38 C.F.R. § 4.84a, Diagnostic Code 6029 (in effect prior to December 10, 2008). A VA optometry note dated August 11, 2009, shows that the reported poor vision in the left eye following scleral buckle and pars plana vitrectomy for retinal detachment. Visual acuity in the right eye was 20/20 and in the left eye was count fingers at four feet. Confrontation fields were full on the right, restricted 360 on the left. The assessment was retinal detachment of the left eye status post pars plana vitrectomy/ scleral buckle/gas bubble; afferent pupillary defect of the left eye by reverse; significant constriction of peripheral visual fields of the left eye; retina intact by buckle; no new holes, tears, breaks; optic atrophy of the left eye secondary to retinal detachment; aphakia and iridodonesis status post complicated cataract extraction of the left eye; myopia of the right eye and high hyperopia of the left eye; and monocular status. Best corrected visual acuity in the right eye was 20/20 and in the left eye was 20/400. A VA ophthalmology consult dated August 28, 2009, shows that visual acuity in the right eye was 20/20-2 and in the left eye was hand motion/count fingers at one foot. Extra-ocular movements were full. The right eye had normal disc, macula, periphery, and vitreous. The left eye had atophic disc; fibrised macula with significant retinal pigment epithelium; and chronic retinal detachment. The assessment was retinal detachment of the left eye with proliferative vitreoretinopathy; inoperable. During the April 2012 Board hearing, the Veteran testified that he had a total loss of vision in the left eye. He stated that prior to the cataract surgery, he had 20/20 corrected vision in the left eye. He added that he had 20/20 corrected vision in the right eye. He also indicated that he had not worked as a truck driver since the cataract surgery. A VA optometry note dated April 20, 2012, shows visual acuity in the right eye was 20/20 and in the left eye was hand motion at three feet. Near visual acuity in both eyes was 20/25. Pupils were equal, round, and reactive in the right; and irregular and fixed in the left. Extraocular muscle motility was full, equal, smooth, and accurate. Confrontation fields were full to finger counting in the right and to hand motion in the left. Lids/lashes exhibited dermatochalasis with capped glands in both eyes. Conjunctiva were manifested by nasal and temporal pingecula in both eyes. Cornea was manifested by arcus 360 in both eyes. The iris was flat and intact in the right eye and ectopic pupil in the left eye in the zone of iris atrophy. The lens was NS 1+ in the right eye and displaced intraocular lens with fibrosis in the left. Anterior chambers were deep and quiet and angles were open in both eyes. Vitreous was clear and disc margins were distinct in both eyes. Rim was pallor. Macula were normal in both eyes. Vasculature was normal in caliber and appearance in both eyes. Background was normal in both eyes. Periphery was normal without holes or tears 360º in both eyes. The impression was history of retinal detachment with chorioretinal scars and buckle in the left eye; history of uveitis of the left eye secondary to retinal detachment; and myopic astigmatism with presbyopia. There was no current uveitis. A VA optometry consult dated August 22, 2013, shows that there was no glaucoma. Visual acuity in the right eye was 20/20 and in the left eye was hand movement at three feet. Near visual acuity in both eyes was 20/20. Pupils were round and reactive in the right; and distorted, not reactive, in the left. Extraocular muscle motility was full, smooth, and accurate in the right, and up and down gaze restricted in both directions and vergence in the left. Confrontation fields were full to finger counting in the right and unable to test in the left. Lids/lashes exhibited dermatochalasis in both eyes. Conjunctiva were manifested by nasal and temporal pingecula in both eyes. Cornea was manifested by arcus 360 in both eyes. The iris was flat and intact in the right eye and ectopic pupil in the left eye in the zone of iris atrophy. The lens was NS 1+ in the right eye and displaced intraocular lens with fibrosis in the left. Anterior chambers were deep and quiet and angles were open in both eyes. Vitreous was clear and disc margins were distinct in both eyes. Rim was pallor. Macula were normal in both eyes with no edema, lipid, or heme. Vasculature was normal in caliber and appearance in both eyes. Background was manifested by laser scars nasal to optic nerve head and inferior greater than superior arcades in the left eye to extreme periphery in the left eye. The impression was history of retinal detachment with chorioretinal scars in the left eye; history of uveitis of the left eye secondary to retinal detachment repair surgery; and presbyopia. A VA optometry examination report dated in April 2014 shows that following examination of the Veteran and review of the claims file, a diagnosis of left eye legal blindness was given. Corrected visual acuity in the right eye was 20/40 or better. The Veteran was said to have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The lens required to correct distance vision in the poorer eye did not differ by more than three diopters from the lens required to correct distance vision in the better eye. A semi-fixed afferent pupillary defect was present in the left eye. There was a visual acuity of 20/200 or less in the better eye with use of a correcting lens based upon visual acuity loss. There was no severe irregular astigmatism or diplopia. Tonometry revealed pressure of 17 in each eye. External lids/lashes were normal in the right eye and irregular pupil in the left eye. Conjunctiva, sclera, and cornea were normal in both eyes. Anterior chamber was normal in the right eye and had white opaque scar tissue in the left eye. Iris was normal on the right and irregular in the left. Lens was normal in the right and there was none in the left. Internal eye examination of the right eye was normal, but there was no view of the left eye. His vision was too poor to see hand motion in any peripheral area of the left eye. There was scotoma affecting at least 1/4 of the visual field of the left eye. He did not have legal (statutory) blindness (visual field diameter of 20 degrees or less in the better eye, even if the corrected visual acuity is 20/20) based upon visual field loss. There was post-operative cataract and aphakia or dislocation of the crystalline lens of the left eye. There was retinopathy and detached retina of the left eye. He did not have any other complications, conditions, signs and/or symptoms related to the condition at hand. There was no disfigurement attributable to any eye, and no incapacitating episodes attributable to any eye condition. The examiner added that the impact of each of eye condition was that he could not drive a truck which was his occupation before this condition. He felt that his life has never been the same since all this, and that he was due more compensation for his eye condition. Here, VA and private medical treatment records dated in January 1998 specifically state that prior to the Veteran's January 28, 1998, left eye surgery, visual acuity in the left eye was 20/200. As the right eye is considered to be 20/40 or better, this would correspond to a disability rating of 20 percent pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6077. The medical evidence of record dated since the August 2009 VA eye examination reflects that the best corrected visual acuity for the left eye was hand motion with only light perception. Further, the best corrected visual acuity for the non-service-connected right eye has consistently been 20/20. Thus, the medical evidence does not support a finding of blindness in the non-service-connected eye. Consequently, the provisions of 38 U.S.C.A. § 1160(a)(1) regarding the loss of paired organs are not for application in the instant case. With the non-service-connected right eye being normal (20/40 or better), the aforementioned findings of the left eye corresponds to a 30 percent disability rating pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6070. Subtracting the 20 percent disability rating for the pre-surgery visual acuity from the 30 percent rating for the post-surgery visual acuity, the result is the current 10 percent disability rating. Moreover, the rating criteria reflect that the Veteran would only be entitled to a higher rating if he had anatomical loss of the left eye. This is not shown by the competent medical evidence of record. Consequently, the Board must conclude that the Veteran is not entitled to a disability rating in excess of 10 percent for his additional visual acuity since August 11, 2009. The Board has considered other avenues that may afford the Veteran a schedular disability rating in excess of this remaining 10 percent, but finds that the law precludes any such schedular increase. See 38 C.F.R. § 4.78. Accordingly, the preponderance of the evidence is against the Veteran's claim, and the claim for a disability rating higher than 10 percent for the service-connected left eye disability from August 9, 2011, must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the RO has also considered the manifestation of uveitis of the Veteran's left eye over the course of this appeal. In this regard, uveitis is rated under 38 C.F.R. § 4.84a, Diagnostic Code 6000, which provides that uveitis, in chronic form, is to be rated from 10 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. It is further provided that the minimum rating to be assigned, with active pathology, is 10 percent. The RO has assigned an additional 10 percent for active uveitis from July 13, 2006, to January 4, 2008. The medical evidence of record since August 11, 2009, has shown a history of uveitis, but there is no indication of any active uveitis over the course of the appeal since then. As such, an additional evaluation for uveitis is not warranted for any other period. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. There appears to be no identifiable period of time since August 11, 2009, during which the Veteran's eye disability warranted a disability rating higher than 10 percent. See Fenderson, 12 Vet. App. at 119. Extra-schedular Consideration Finally, the Board finds that the Veteran's residuals of cataract surgery of the left eye do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's residuals of cataract surgery of the left eye is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. As will be discussed below, in March 2015, the RO referred the issue of entitlement to a TDIU for extra-schedular consideration, however, with specific regard to the left eye disability, the disability is adequately contemplated by the rating criteria. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. TDIU The Veteran contends that he is unable to work due to his service-connected disability. The current claim for TDIU arises from the Veteran's appeal for an increased disability rating for the service-connected residuals of cataract surgery of the left eye. Total disability ratings for compensation will be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). However, if there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the Veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that 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." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court 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 . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court, citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), noted the following standard: It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See also, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. Service connection is in effect for residuals of cataract surgery of the left eye, rated as 10 percent disabling. His combined disability rating for compensation is 10 percent. Therefore, he does not satisfy the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a), as he does not have one service-connected disability rated at 60 percent or more or, two or more service-connected disabilities with one rated at least 40 percent disabling and a combined rating of at least 70 percent disabling. 38 C.F.R. § 4.16(a) (2014). Even though the percentage requirements of § 4.16(a) are not met, if the evidence establishes that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, the case will be referred to the Director of the VA Compensation and Pension Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry in a claim for TDIU 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). In this case, during the April 2012 Board hearing, the Veteran testified that he had not worked as a truck driver since the cataract surgery. He added that after he had to surrender his truck driver's license, he worked at a casino as a cashier which proved to be stressful aggravating his health issues, including high blood pressure, chest pains, stress, and anxiety. He indicated that after approximately a year and a half, he left the job. The April 2014 VA optometry examination report shows that the VA examiner opined that the impact of each of eye condition was that he could not drive a truck which was his occupation before this condition. In March 2015, the RO referred the issue to the Director of Compensation and Pension Service so as to obtain an advisory opinion regarding the propriety of granting entitlement to a TDIU. The RO explained that the evidence of record had shown that the Veteran had a high school education with one year of college and past relevant work as a truck driver, a school bus driver, a slot booth cashier and an assistant restaurant manager. He also had other medical conditions associated with obesity, a back condition, and a psychiatric condition. The Social Security Administration was said to have determined that he was disabled due to his medical and psychiatric disabilities. Thereafter, in March 2015, the Director of Compensation Service conducted an administrative review for entitlement to individual unemployability benefits on an extra-schedular basis. It was summarized that the Veteran had stated he was unable to work due to his service connected condition. Service connection was said to have been established for one condition - residual of cataract surgery of the left eye which was currently rated as 10 percent disabling. Entitlement to pension was established in 2003 due to a severe spine condition, posttraumatic stress disorder and anxiety, and coronary atherosclerosis. Entitlement to Social Security Administration disability benefits was established by an administrative law judge effective May 1, 2004. The Social Security Administration granted disability benefits due to morbid obesity, left eye blindness, depression and anxiety. The medical evidence demonstrates that the Veteran is essentially blind in the left eye. None of the available outpatient treatment records reveals hospitalizations, emergency room visits, recent surgeries or any intensive treatment programs for his service-connected condition. It was determined that a review of all available evidence does not show that the impact of the Veteran's service connected condition prevents him from engaging in substantial gainful activity. It was explained that it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled, however, entitlement to a TDIU was not established. The Board has considered the Veteran's assertions regarding the effect of his service-connected left eye disability on his ability to obtain and maintain gainful employment. However, the medical evidence of record has not established that he cannot work as a result of his service-connected left eye disability. The effects of his left eye disability on his occupational functioning was said to be limited to his driving a truck. He testified that he was able to work as a cashier at a casino for more than a year until that job was impacting other, non-service-connected, disabilities. The Board, therefore, finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due solely to service-connected disability. Non-service-connected disabilities may not be considered in the determination of whether the Veteran warrants TDIU. 38 C.F.R. §§ 3.341, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Accordingly, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert, supra; 38 C.F.R. §§ 4.15 , 4.16, 3.340, 3.341 (2014). ORDER A disability rating greater than 10 percent for service-connected residuals of cataract surgery of the left eye (38 U.S.C.A. § 1151), from August 11, 2009, is denied. Entitlement to a TDIU is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs