Citation Nr: 21066380 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-17 256A DATE: October 29, 2021 ORDER Entitlement to a disability rating in excess of 20 percent prior to August 25, 2014 for left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis, is denied. Entitlement to a disability rating in excess of 30 percent from August 25, 2014 for left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis, is denied. Entitlement to service connection for bilateral hand disability manifested by bilateral hand pain is denied. Entitlement to service connection for a back disability manifested by back pain is denied. Entitlement to service connection for chest disability manifested by chest pain is denied. Entitlement to service connection for bilateral knee disability manifested by bilateral knee pain is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to August 25, 2014, the Veteran's left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis manifested as impaired visual acuity to no worse than 20/40 or better in the right eye and no worse than 20/200 in the left eye; without impaired visual fields, diplopia, or incapacitating episodes within a twelve-month period. 2. From August 25, 2014, the Veteran's left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis manifests as impaired visual acuity to no worse than 20/20 in the right eye and left eye of 5/200 or worse; impaired visual fields with an average concentric contraction of no less than right eye contraction of 56.75 degrees and left eye contraction of 34.75 degrees; and no incapacitating episodes in a twelve-month period. 3. The preponderance of the evidence of record is against finding that the Veteran has had bilateral hand disability manifested by bilateral hand pain at any time during or approximate to the pendency of the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had back disability manifested by back pain at any time during or approximate to the pendency of the claim. 5. The preponderance of the evidence of record is against finding that the Veteran has had chest disability manifested by chest pain at any time during or approximate to the pendency of the claim. 6. The preponderance of the evidence of record is against finding that the Veteran has had bilateral knee disability manifested by bilateral knee pain at any time during or approximate to the pendency of the claim. 7. The Veteran's service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to August 25, 2014 for left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6001, Diagnostic Code 6036, Diagnostic Code 6064, Diagnostic Code 6066. 2. The criteria for a disability rating in excess of 30 percent from August 25, 2014 for left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6001, Diagnostic Code 6036, Diagnostic Code 6064, Diagnostic Code 6066. 3. The criteria for service connection for bilateral hand disability manifested by bilateral hand pain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for back disability manifested by back pain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for chest disability manifested by chest pain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for bilateral knee disability manifested by bilateral knee pain are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 2004 until his honorable discharge in August 2008 and in the United States Army from October 2009 until his general discharge under honorable conditions in October 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In June 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain new VA examinations. Increased Rating 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. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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). 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 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, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Entitlement to a disability rating in excess of 20 percent from October 31, 2012 to August 24, 2014 for left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis 2. Entitlement to a disability rating in excess of 30 percent from August 25, 2014 for left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis The Veteran asserts that he is entitled to a higher disability rating for his left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis. The Board notes that prior to this period on appeal, the Veteran's left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis was rated at a noncompensable disability rating under Diagnostic Code 6001, in part because the Veteran failed to report for his VA examination scheduled for May 4, 2009 and the June 11, 2009 final rating decision is not on appeal. As noted in the April 2017 rating decision, during the Veteran's active duty, the Veteran's left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis worsened and the Veteran was awarded a 20 percent disability rating effective the day after he received his general discharge under honorable conditions from the United States Army. Therefore, the period on appeal is from October 31, 2012 to present. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. Impairment of Visual Fields is rated under Diagnostic Codes 6080 through 6081. The Veteran is rated under Diagnostic Code 6036-6066 prior to August 25, 2014 and Diagnostic Code 6036-6064 from August 25, 2014. 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 as a hyphen. 38 C.F.R. § 4.27. As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a 20 percent disability rating prior to August 25, 2014 and a 30 percent disability rating from August 25, 2014 on the basis of left eye post-operative corneal transplant. Accordingly, the Veteran is currently being rated for visual impairments due to the residuals of a corneal transplant. Therefore, the Board finds that a rating under Diagnostic Code 6036-6066 and Diagnostic Code 6036-6064 are not the appropriate Diagnostic Codes to rate the Veteran's disability. The evidence does show the Veteran has left eye post-operative corneal transplant. As such, the Board finds that a rating under Diagnostic Code 6036 for status post corneal transplant is the more appropriate Diagnostic Code because it is specifically listed and does not require a hyphenated diagnostic code to identify the specific basis for the evaluation assigned. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6036. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6036-6066 or 6036-6064 for 9 years and is therefore not afforded protection under 38 U.S.C. § 1159. However, the Board also notes that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Diagnostic Code 6036 provides that an evaluation under the General Rating Formula for Diseases of the Eye with a minimum evaluation of 10 percent if there is pain, photophobia, and glare sensitivity. 38 C.F.R. § 4.79, Diagnostic Code 6036. The evaluation 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). Combine the evaluation for visual impairment of one eye with evaluation for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under diagnostic code 7800). Id. Subject to the provisions of 38 C.F.R. § 3.383(a), if visual impairment of only one eye is service connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). 38 C.F.R. § 3.383(a) provides that compensation is payable for the combination of service-connected and nonservice-connected disabilities when the impairment of vision in each eye is rated at a (corrected distance) visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. When the Veteran has anatomical loss of one eye and is unable to wear a prosthesis, increase the evaluation for visual acuity under diagnostic code 6063 by 10 percent, but the maximum evaluation for visual impairment of both eyes must not exceed 100 percent. A 10-percent increase under the paragraph precludes an evaluation under diagnostic code 7800 based on gross distortion or asymmetry of the eye but not an evaluation under diagnostic code 7800 based on other characteristics of disfigurement. Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent. 38 C.F.R. § 4.76(a). Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. For evaluations of restrictions in visual field(s), the examiner must use either Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability. 38 C.F.R. § 4.77. Determination of the average concentric contraction of the visual field of each eye by measuring the remaining visual field (in degrees) at each of the eight principal meridians 45 degrees apart, adding them, and dividing the sum by eight. 38 C.F.R. § 4.77(b). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of 38 C.F.R. § 4.25. From October 31, 2012 to August 24, 2014 A March 2013 VA examination reveals that the Veteran has a status post corneal graft of the left eye. 03.01.2013 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/40 or better 20/40 or better 20/40 or better 20/40 or better LEFT 20/200 20/200 20/100 20/100 The March 2013 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 20 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/40 corrected distance in the right eye and 20/200 corrected distance in the left eye warrants a 20 percent disability rating. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 20 percent for a loss of visual acuity for the period on appeal, specifically from October 31, 2012 to August 24, 2014. From August 25, 2014 An August 2014 VA examination reveals that the Veteran has a status post corneal graft of the left eye. 08.25.2014 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/40 or better 20/40 or better 20/40 or better 20/40 or better LEFT 5/200 or worse 5/200 or worse 5/200 or worse 5/200 or worse The August 2014 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 30 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/40 or better corrected distance in the right eye and 5/200 or worse in the left eye warrants a 30 percent disability rating. A November 2020 VA examination reveals that the Veteran has a status post corneal graft of the left eye. 11.18.2020 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/20 or better 20/20 or better 20/20 or better 20/20 or better LEFT 5/200 or worse 5/200 or worse 5/200 or worse 5/200 or worse The November 2020 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 42 15 Up Temporally 55 60 19 Temporally 85 75 52 Down Temporally 85 70 58 Down 65 60 43 Down Nasally 50 47 30 Nasally 60 46 33 Up Nasally 55 54 28 The Veteran's average concentric contraction of the visual field of each eye results in a right eye contraction of 56.75 degrees and left eye contraction of 34.75 degrees. As a preliminary matter, the Veteran is service-connected for only his left eye disability and the his impairment of vision in each eye is not rated at a (corrected distance) visual acuity of 20/200 or less; nor is the peripheral field of vision for each eye is 20 degrees or less. Therefore, the impairments of the Veteran's right eye shall not be considered for rating purposes. Based on the evidence above, a disability rating in excess of 30 percent for the Veteran's loss of visual acuity and visual field is not warranted. The Veteran's visual acuity of 20/20 or better corrected distance of the right eye and 5/200 or worse corrected distance of the left eye warrants a 30 percent disability rating. Additionally, the Veteran's average contraction of the visual field of 46 to 60 degrees in the right eye and 31 to 45 degrees in the left eye warrants a 20 percent disability rating. However, as noted above, because the Veteran is not service-connected for his right eye and therefore the visual acuity of the right eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment. 38 C.F.R. § 4.75(c). 38 C.F.R. § 3.383(a) provides that compensation is payable for the combination of service-connected and nonservice-connected disabilities (without the anatomical loss of an eye) only when the impairment of vision in each eye is rated at a (corrected distance) visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. In the present case, the Veteran's right eye corrected distance visual acuity is not 20/200 or less nor is his peripheral field of vision in the right eye 20 degrees or less. Therefore, for rating purposes, the Veteran's visual acuity of the right eye shall be considered to be 20/40 and the visual field defect of the right eye will not be considered for rating purposes, and subject to the maximum 30 percent disability rating under 38 C.F.R. § 4.75(d). Therefore, the Veteran's adjusted visual acuity (for rating purposes) of 20/40 or better corrected distance of the right eye and 5/200 or worse corrected distance of the left eye warrants a 30 percent disability rating. Additionally, the Veteran's adjusted visual acuity (for rating purposes) average contraction of the visual field 31 to 45 degrees in the left eye warrants a 10 percent disability rating. Combining the Veteran's adjusted results (for rating purposes) for visual acuity disability rating of 30 percent disabling and contraction of visual field disability rating of 10 percent results in a combined disability rating of 40 percent disabling. However, as noted above, the Veteran is limited to a disability rating of 30 percent under 38 C.F.R. § 4.75(d) because he is only service connected for his left eye. 38 C.F.R. § 4.75(d). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a disability rating in excess of 30 percent for a loss of visual acuity and impairment of visual field from August 25, 2014. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 3. Entitlement to service connection for bilateral hand disability manifested by bilateral hand pain 4. Entitlement to service connection for a back disability manifested by back pain 5. Entitlement to service connection for chest disability manifested by chest pain 6. Entitlement to service connection for bilateral knee disability manifested by bilateral knee pain Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that his bilateral hand disability manifested by bilateral hand pain, back disability manifested by back pain, chest disability manifested by chest pain began, and bilateral knee disability manifested by bilateral knee pain began during service and has existed since that time. The Board finds that there is no probative evidence of a current disability of bilateral hand disability manifested by bilateral hand pain, back disability manifested by back pain, chest disability manifested by chest pain began, nor bilateral knee disability manifested by bilateral knee pain. The Veteran was afforded VA examinations in July 2014 and October 2020. The July 2014 VA examiner found that the Veteran did not have a current disability. See July 2014 VA examination, pp. 7, 16, 21, and 29. However, as noted in the June 2020 Board remand, the July 2014 VA examiner did not address the Veteran's assertions of pain as a disability, which may be applicable if the pain causes functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Subsequent to the June 2020 Board remand, the Veteran was afforded a second VA examination in October 2020. The October 2020 VA examiner opined that it is less likely than not that the Veteran's bilateral hand disability manifested by bilateral hand pain, back disability manifested by back pain, chest disability manifested by chest pain began, and bilateral knee disability manifested by bilateral knee pain results in functional impairment of earning capacity because the Veteran has completed a normal examination without any evidence of pain, he has been continuously employed, and there is no medical diagnosis to be rendered. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to TDIU The Veteran asserts that he is unemployable due to his service-connected left eye post-operative corneal transplant with corneal opacity, neovascularization, and keratitis. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court recently defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a 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. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: adjustment disorder with mixed anxiety and depressed mood (rated at 50 percent disabling), obstructive sleep apnea (rated at 50 percent disabling), migraine headaches (rated at 30 percent disabling), left eye post-operative corneal transplant with corneal opacity, neovascularization and keratitis (rated at 20 percent disabling from October 31, 2012 to August 24, 2014 and 30 percent disabling from August 25, 2014), and tinnitus (rated at 10 percent disabling). For the time period on appeal, the Veteran's combined disability evaluation is either 80 or 90 percent disabling. Thus, the percentage requirements for a TDIU are met because the Veteran has more than one service-connected disability rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). The Veteran also suffers from several non-service connected conditions, including the following: bilateral hand disability manifested by bilateral hand pain, back disability manifested by back pain, chest disability manifested by chest pain began, and bilateral knee disability manifested by bilateral knee pain, hearing loss claimed as audiological condition, hyperlipidemia, tinea pedis, pseudofolliculitis barbae, and substance abuse. The evidence of record does not demonstrate that the Veteran's service-connected disabilities alone resulted in unemployability. During the period on appeal, the Veteran has completed an Associates of Arts degree from Pensacola State College in 2015 and a Bachelor of Arts Degree from the University of West Florida in May 2018 with a major in criminal justice and a minor in psychology. Furthermore, since shortly after completing his education, it appears that the Veteran has been continuously employed. The October 2020 VA examiner noted that the Veteran has been continuously employed. See October 2020 VA examination. Therefore, the Board finds that the Veteran is not unemployable. In short, the evidence of record overwhelmingly shows that the Veteran has not demonstrated an inability to obtain and maintain employment. There is no evidence that the Veteran's service-connected disabilities, on their own, results in such impairment as to render the Veteran unable to work. Indeed, the most recent October 2020 evaluation reflects that the Veteran has been continuously employed. As such, there is simply no evidence of unusual or exceptional circumstances to warrant referral for extraschedular consideration of a total disability rating based on the Veteran's service-connected disability. Given the above, the preponderance of the evidence does not support the Veteran's assertion that his service-connected disabilities are of such severity as to preclude his participation in any form of substantially gainful employment. Accordingly, the Board concludes that referral of this claim for consideration of TDIU on an extraschedular basis is not warranted. (Continued on the next page) The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Therefore, the Veteran's claim for entitlement to a TDIU is denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.