Citation Nr: 21004938 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 12-09 988 DATE: January 28, 2021 ORDER Entitlement to an increased rating in excess of 40 percent, to include on an extraschedular basis, for left eye choroidal rupture with traumatic cataract status post extraction is denied. Entitlement to a TDIU on an extraschedular basis prior to March 13, 2019 is granted. FINDINGS OF FACT 1. The Veteran experiences visual impairment of light perception only in his left eye; his associated symptoms do not present such an unusual or exceptional disability picture to warrant extraschedular evaluation. 2. The Veteran is unable to maintain substantially gainful employment as a result of his service-connected disabilities as of March 24, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 40 percent, to include on an extraschedular basis, for left eye choroidal rupture with traumatic cataract status post extraction have not been met. 38 U.S.C. §1155; 38 C.F.R. § 3.321, 4.75, 4.79; Diagnostic Codes 6029 and 6064. 2. The criteria for entitlement to a TDIU on an extraschedular basis prior to March 13, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to June 1989. These matters are on appeal to the Board of Veterans’ Appeals (Board) from an August 2010 rating decision. This appeal has a lengthy and complex procedural history with several previous Board decisions (August 2014, November 2015, October 2017, and April 2019) and two orders from the United States Court of Veterans Claims (Court) vacating and remanding the August 2014 and October 2017 Board decisions. The Board finds that the remand directives in the most recent April 2019 Board decision have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Veteran’s April 2012 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. The hearing was scheduled for December 16, 2013, and an October 2013 letter notified the Veteran of the time, place, and location of the hearing. He failed to appear for the scheduled hearing and did not provide good cause or otherwise request the hearing be postponed or rescheduled. In subsequent September 2015 correspondence from the Veteran’s former representative, it was expressly indicated that he did not want a Board hearing. Accordingly, the Board has deemed the request withdrawn in previous decisions. 38 C.F.R. § 20.702 (d). 1. Entitlement to an increased rating in excess of 40 percent, to include on an extraschedular basis, for left eye choroidal rupture with traumatic cataract status post extraction The Veteran filed for an increased rating in excess of 30 percent for his left eye disability on March 24, 2010. In the August 2014 Board decision, his disability rating was increased to 40 percent, but entitlement to an extraschedular rating was denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. §1155; 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, the Board will only consider evidence submitted one year prior to the filing of the claim for an increased rating, rather than from the initial assignment. The Veteran filed his increased rating claim on March 24, 2010. Therefore, the appeal period begins March 24, 2009. a) Schedular Rating VA’s schedule for rating eye disabilities was revised effective May 13, 2018, which was during the pendency of this appeal. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. When only one eye is service-connected, as is the case here, and subject to the provisions of 38 C.F.R. § 3.383 (a), the visual acuity of the nonservice-connected eye will be considered to be 20/40 for the purposes of rating the service-connected visual impairment. 38 C.F.R. § 4.75 (c). Under the amended rating criteria, the maximum rating for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. 38 C.F.R. § 4.75 (d). The rating for visual impairment may be combined with ratings for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). In the August 2014 Board decision, it was determined that the Veteran should be rated pursuant to Diagnostic Code (DC) 6029 for aphakia. Both the former criteria and revised criteria provide that under DC 6029, aphakia is to be evaluated based upon visual impairment and elevated one step, with a minimum rating of 30 percent, whether unilateral or bilateral. Regarding visual impairment, the amendments made no substantive changes as to how visual acuity is rated. Visual impairment is rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction), (2) visual field, and (3) muscle function. The Board notes that some eye conditions may also be rated based on incapacitating episodes. Under the General Rating Formula, in effect prior to May 13, 2018, where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. 38 C.F.R. § 4.79 (2018). Under the General Rating Formula for Diseases of the Eye, in effect as of May 13, 2018, where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. 38 C.F.R. § 4.79 (2019). Under DC 6064, where there is no more than light perception in one eye and not anatomical loss of an eye, a 30 percent rating is warranted where there is corrected visual acuity to 20/40 in the other eye. A 40 percent rating is warranted where there is corrected visual acuity to 20/50 in the other eye. Here, the Veteran has no more than light perception in the left eye with no anatomical loss and corrected visual acuity of 20/40 in the nonservice-connected right eye. Elevating one step pursuant to DC 6029 (20/50 in the other eye), the Veteran has been assigned a 40 percent rating. In a July 2010 VA examination, the Veteran’s residuals from his in-service retinal detachment and cataract surgery were reduced vision and peripheral vision with no depth perception. An inability to achieve binocular vision and reduced mobility were also noted. The Veteran had only hand motion vision in the left eye and aphakia was indicated. In a July 2010 statement, the Veteran endorsed worsening vision over the years. He stated he has no forward vision and very little side vision. He suffers from a watery left eye and headaches with difficulty focusing. At times his eye drifts, causing him to be anxious around people and fearing he will go completely blind. In a March 2010 VA treatment record, he endorsed tearing in the left eye and stable floaters. In his January 2011 Notice of Disagreement (NOD), the Veteran wrote that his eye is constantly irritated and watery. He is legally blind in the left eye and continues to have headaches. In a March 2011 VA treatment record, he continued to have tearing, irritation, itchiness, and aching at the end of the day. He reported experiencing glare and requested tinted glasses. In his April 2012 VA Form 9, he stated his eyesight has worsened as his left eye pulls to the left so much it causes constant irritation, pain, and tearing. He also contended that his right eye must overcompensate and that he suffers from reduced vision in that eye as well. In that regard, the Board notes that this contention was construed as a claim for service connection on a secondary basis. His claim for service connection for the right eye was denied in a December 2015 rating decision. Correspondence received in May and September 2015 reflects that the Veteran had begun experiencing problems with glare and light sensitivity and resulting headaches. In a June 2012 symptoms report for his Social Security disability application, the only listed symptom relating to his eye was “headaches from bright lights and sunlight.” In an August 2015 vocational employability assessment, the Veteran endorsed loss of vision and pain in the left eye, floating which causes facial disfigurement, right eye strain, loss of balance, and sensitivity which requires him to avoid driving, being outdoors in daylight, and environments with bright lights. In a December 2015 VA examination, his listed diagnoses were sensory exotropia, macular scar with resultant hand motion vision, retinal detachment, and pseudophakia of the left eye. The Veteran again endorsed problems with his right eye, including photophobia, watering, a ring around vision in bright light, difficulty focusing, and headaches. His visual acuity was light perception only in the left eye. He had loss of visual field in the left eye but no diplopia. The examiner indicated that he does have headaches related to his eye that can cause incapacitation for about 14 hours. In a March 2016 VA examination, his listed diagnoses were the same along with headaches, posterior vitreous detachment, and photophobia. The Veteran reiterated his same concerns regarding his right eye and also endorsed headaches 1-2 times weekly that intensify in bright light. He had loss of visual field in the left eye but no diplopia. The examiner indicated gross distortion or asymmetry of the eye due to the exotropia. He had incapacitating episodes caused by headaches. The examiner explained that the photophobia and headaches could not be explained by the eye examination but could be related to a traumatic brain injury caused by his in-service injury. The examiner suggested that the Veteran be evaluated for a TBI. Subsequently, VA sent notice to the Veteran inviting him to file a claim for service connection for headaches (to include photophobia) as residuals of a TBI as possible entitlement may exist based on the findings of the May 2016 examination. The Veteran filed a claim and was granted service connection for headaches rated at 50 percent disabling in an August 2020 rating decision. He was also granted service connection for PTSD secondary to his left eye disability rated at 50 percent in a December 2019 rating decision. In an April 2016 VA treatment record, the Veteran complained of watering, itchiness, and glare in the left eye with blurred vision on the right. VA treatment records also reflect the Veteran is unable to drive due to vision problems and that he suffers from social anxiety and self-esteem issues due to his appearance (left eye drifting to the left or “popping out”). In May 2017 the Veteran submitted correspondence explaining he continues to suffer from photophobia and headaches making activities such as reading, watching TV, and driving challenging. In his November 2019 VA examination, the examiner explained that the Veteran’s left eye traumatic macular scar is the result of his loss of vision in the left eye. He has intermittent episodes of headaches that simultaneously include blurred vision, diplopia, photophobia, kaleidoscope sparkly lights, and tunnel vision. His listed current symptoms were loss of vision in left eye and intermittent headaches. Diplopia was indicated during headache episodes. Again, incapacitating episodes were indicated due to headaches. The examiner also explained that it is a medically accepted fact that the resultant disruption in binocularity (caused by the in-service injury) will diminish depth perception and overall functional vision, as well as be causative for all above listed diagnoses/symptoms. The evidence simply does not reflect that a higher rating is warranted under the schedular criteria. First, the Veteran does not have anatomical loss of the eye, which, according to 38 C.F.R. § 4.75 (d), caps his rating at 30 percent. Second, the record reflects that the Veteran does not have aphakia but has pseudophakia, which does not provide for the elevated step, but rather directs evaluation under the General Rating Formula for incapacitating episodes or visual impairment. While the record reflects that the Veteran experiences incapacitating episodes, these are attributed to headaches, for which he is separately rated. The Board has considered the Veteran’s contention that he should be separately rated under DC’s 6029 and 6064; however, DC 6029 expressly directs to evaluate based on visual impairment. The Board has also considered whether a separate rating under DC 7800 may be warranted for scarring or disfigurement. Under DC 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is 5 or more inches (13 cm), in length; a scar that is at least one-quarter inch (0.6 cm) wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding 6 sq. inches (39 sq. cm); skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. inches (39 sq. cm); underlying soft tissue that is missing in an area exceeding six square inches (39 sq. cm); and skin that is indurated and inflexible in an area exceeding 6 sq. inches (39 sq. cm). 38 C.F.R. § 4.118, DC 7800, Note 1. However, while the presence of a macular scar is indicated throughout the record, each examination indicated no scar or disfigurement that would warrant a dermatological examination. Upon internal eye examination in February 2020, the examiner noted that the macular scar extends from optic disc through macula. There is no indication of the presence of a characteristic of disfigurement warranting a 10 percent rating. Similarly, in the March 2016 VA examination, the examiner indicated there was gross distortion or asymmetry of the eye due to the exotropia (which was surgically corrected in 2016). However, there is no evidence of visible tissue loss to warrant a 30 percent rating under the criteria. In sum, there is no basis for an increased rating in accordance with the schedular criteria. b) Extraschedular rating Under 38 C.F.R. § 3.321 (b)(1), an extraschedular disability rating is warranted upon a finding that “the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” This standard was elucidated in Thun v. Peake, 22 Vet. App. 111, 115 (2008), which, in pertinent part, described the first two steps in the analysis. Thun’s first step requires a comparison of the level of severity and symptomatology of the disability with the rating criteria for that disability. Thun’s second step then requires a determination as to whether the veteran’s exceptional symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors (functional impairment). Regarding the first step, the Court in Long v. Wilkie noted that because this determination is, by nature, fact-bound and highly contextual, it should be approached as a totality of the factors inquiry that considers whether the veteran’s symptomatology presents an impairment so exceptional that the rating schedule is not capable of assessing it in the first instance. No. 16-1537 (Dec. 30, 2020). In other words, Thun’s first step is not met simply because the symptoms of the disability are not considered in the rating criteria for that disability; rather, it is met when the impairment cannot be evaluated by the rating schedule. Id. The Court noted that this approach was not new, and that it was used to reach the holding in Doucette v. Shulkin, 28 Vet. App. 366 (2016), where it found the veteran’s complaints were “precisely the effects that VA’s audiometric tests are designed to measure” and therefore could not be deemed exceptional. Id. at 369. Of note, the Board is unable to determine whether the Veteran is entitled to an extraschedular rating in the first instance. The matter must be initially referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The Board referred the matter in its November 2015 decision. The Director concluded there was no evidence showing an exceptional or unusual disability picture for the left eye to warrant assignment of an extraschedular evaluation. The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The evidence reflects the Veteran’s primary symptoms are loss of vision, headaches, and photophobia. He is separately rated for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The November 2019 examiner also associated most of the Veteran’s symptoms with his headaches – tunnel vision, diplopia, flashes of light, blurred vision, and photophobia. Thus, his headaches and associated symptoms are contemplated under the rating criteria. His facial disfigurement and associated mental anguish are also contemplated – as explained above, while the Board does not find that the Veteran is entitled to a facial disfigurement rating, it is indeed included in the rating criteria and he is separately rated for PTSD secondary to his eye disability. Finally, while the Board acknowledges there may be other associated symptoms not expressly listed under the rating criteria (i.e. watery, irritation, itchiness, pain, lack of depth perception, reduced mobility), as the November 2019 examiner explains, loss of vision results in other impairments other than simply loss of sight. Thus, the Board finds that these other impairments can be evaluated by the rating criteria. As the Veteran’s disability does not present such an exceptional or unusual disability picture and his symptoms are adequately encompassed by the rating criteria, the first factor in Thun has not been met and it is unnecessary to consider the second factor, whether his condition causes marked interference with employment. The Veteran is not entitled to an extraschedular evaluation for his left eye disability. 2. Entitlement to a TDIU on an extraschedular basis prior to March 13, 2019 The Board found entitlement to a TDIU had been raised by the record in its August 2014 decision. In an August 2020 rating decision, entitlement to a TDIU was granted as of March 13, 2019, the date the Veteran’s disability ratings met the schedular criteria. Although the schedular criteria was not met until that date, entitlement to a TDIU on an extraschedular basis prior to March 13, 2019, remains an issue on appeal to the Board. 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. §§ 3.340, 3.341, 4.16 (a). According to 38 C.F.R. § 4.16 (b), 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 of the VA Compensation and Pension Service for such extraschedular 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 38 C.F.R. § 4.16 (a). See Bowling v. Principi, 15 Vet. App. 1 (2001). The Board referred the matter in its November 2015 decision. The Director concluded that TDIU on an extraschedular basis was not warranted, noting that the Veteran’s current left eye evaluation recognizes the average impairment in earning capacity resultant from his disability. It was also noted that the Social Security Administration concluded in 2012 that the Veteran was not inhibited from performing gainful activity in a sedentary setting. As explained above, the Board must conduct a de novo review of the Director’s decision. Wages, 27 Vet. App. at 238-39. Prior to March 2019, the Veteran was service connected for his left eye injury (40 percent); left second and third metatarsal fracture (0 percent); and a fractured left ankle (0 percent). According to his VA Form 21-8940, the Veteran last worked in 2014 as a line cook and technician. He attended Youngstown State University from 1991 to 1992, and Laurel Technical Institute from 2012 to 2014. He stated that due to his service-connected disabilities, he is unable to obtain and maintain substantially gainful employment. The glare created by overhead lighting, TV, or computer screens affecting his vision causes severe headaches. He would have to take breaks and find shaded, darker areas for relief, which fragmented his workflow into small segments. The Veteran was an installation and maintenance of communication equipment in service until his injury. His social security administration records reflect that his previous work history includes various janitorial jobs or jobs in the restaurant industry. The Veteran’s employer at his last place of employment as a line cook submitted a statement in August 2016. The president of the restaurant explained that the Veteran was a main line cook and always exceeded his job expectation but was in noticeable pain while working. He had to take frequent breaks to relieve the stress on his ankle, and he struggled to read the menu tickets under a stressful, fast-paced environment. In a June 2015 statement, the Veteran explained that in his last job as a part-time line cook, his eye disability made it very difficult to perform work responsibilities. The lights located on the hood of the grill were very bright and caused severe headaches due to the glare. He would frequently walk into a dark room or outside for 15 minutes to relieve the headaches and adjust his eyesight. His employers/supervisor were very understanding and accommodating as they knew he was a disabled Veteran. According to the Veteran, in any other culinary environment, they probably would not put up with his frequent breaks. The Veteran continued that he only worked part-time and preferred to work at night because he could walk outside during breaks. He cannot drive more than a few blocks and relies on his spouse. He is unable to stare at a computer screen, TV, or a well-lit environment as his eyes water. He feels he is unable to conduct sedentary work in any place, especially in places that are brightly lit. He would need frequent breaks in order to relieve symptoms. The pharmacy where the Veteran worked as a pharmacy technician from November 2013 to January 2014 responded to a request for employment information and wrote “NA” in response to whether any concessions were made regarding a disability. In an August 2014 VA treatment record, the Veteran explained that when he graduated from pharmacy technician training, he got a job at a pharmacy company, yet he was taunted and ridiculed by his fellow employees because of his eye injury. He quit due to the anxiety and depression this caused. A later treatment record reflects that the Veteran felt his left eye exotropia was making others uncomfortable in his field of work, and he inquired into surgical correction. A private vocational employability assessment was conducted in August 2015. Regarding his educational background, the Veteran received vocational rehabilitation assistance in 1991 and completed general education courses, but they did not result in any specific vocational skills, degree, or training. From 2004 to 2014 the Veteran had periods of unemployment and a succession of part-time and unskilled occupations or odd jobs. In 2014, he completed a pharmacy technician program through special accommodations. Unfortunately, he was unable to complete the training practicum due to his inability to drive, use the computer because of glare, and the bright lights caused blurred vision which resulted in incorrect pill counts. The expert concluded that given the Veteran’s limiting and worsening physical symptoms related to his service-connected disability, and considering his vocational history and job skills, he is precluded from securing and following substantially gainful employment. In the Veteran’s July 2010 VA examination for his ankle, the examiner opined that the Veteran’s disability hindered him significantly as he cannot lift more than 20 pounds. In his May 2016 examination, the examiner noted the Veteran cannot work with required prolonged standing, walking, or ladder work. The Veteran stated he last worked as a cook, then went to school to become a pharmacy technician and began an internship, but he was unable to continue due to his disabilities. In his October 2019 examination, the examiner opined the Veteran was unable to stand for 20 minutes or walk 100 yards. In a July 2010 statement, the Veteran stated that as a cook he worked on his feet, and at the end of the day he took pain medication to ease the pain. He feared he would not be able to handle it much longer and lose his job or the ability to walk. Over time he has developed a slight limp and his ankle gives out. His treatment records reflect severe pain when he is on his feet for prolonged periods. A November 2016 treatment record indicates the Veteran cannot walk without pain and must use a cane. He stated his work history was patchy because he had to quit working to be his mother’s fulltime caregiver, but he hopes to start a small business eventually. In the Veteran’s December 2015 and March 2016 VA examination for his eye disability, the Veteran stated he has difficulty reading tickets and being in light as a cook, and has difficulty focusing as a pharmacy technician. He stated he was unable to have any job that required judging depth as he has no depth perception. In a June 2016 addendum to the March 2016 examination, the examiner clarified that she is not qualified to provide an unemployability opinion, but the Veteran has profound visual loss of the left eye which has definite effects on the ability to have binocular vision and depth perception. In his November 2019 examination, the examiner opined that the Veteran’s impaired functional vision makes maintaining any steady occupation difficult. Although there is evidence that the Veteran ceased working to care for his mother rather than his disabilities, there is substantial evidence showing he is unable to work as a result of his disabilities. While the Veteran’s current eye evaluation does reflect the average impairment in earning capacity due to vision loss, the Board finds that his eye disability combined with his ankle disability, educational training, and prior work history all render the Veteran unemployable. The records reflect severe pain in his ankle while standing or walking for periods of time, requiring him to use a cane. This, coupled with his lack of depth perception, makes physical employment impractical. While he has received training as a pharmaceutical technician, the precise and intricate job responsibilities such as counting pills require focusing in well-lit environments and looking at computer screens, which presents challenges for the Veteran. The Veteran does not possess other job skills or educational background that may be more suitable for him. While the Veteran did work in 2014, the Board finds that his part-time jobs constituted only marginal employment and that his position as a line cook amounted to protected employment. According to his VA Form 21-8940, the Veteran’s income was below the poverty threshold in 2014 for him, his spouse, and his daughter as determined by the United States Census Bureau. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (January 27, 2021). Regarding his position as a line cook, the Veteran and his employer spoke to the amount of breaks the Veteran was afforded due to his eye and ankle disabilities. In his vocational assessment, it was noted that the level of workplace accommodations afforded to the Veteran is typically not deemed reasonable by employers due ot the impact on production and the working environment. Thus, the expert concluded the level of accommodation equated to sheltered employment. As the Veteran’s service-connected disabilities render him unemployable and his employment within the appeal period amounts to merely marginal employment, the Veteran is entitled to a TDIU on an extraschedular basis as of March 24, 2010, the date of claim. L.M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Carroll, 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.