Citation Nr: 21073929 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 05-06 789A DATE: December 13, 2021 ORDER Entitlement to an increased rating of 20 percent is granted as of October 29, 2007, for right eye macular lesion. Entitlement to an increased rating of 30 percent is granted as of January 9, 2017, for right eye macular lesion. Entitlement to an increased rating of 40 percent is granted as of June 10, 2019, for right eye macular lesion. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is denied for the time period from August 1, 2012, to July 20, 2020. Entitlement to a TDIU is granted for the time periods from January 29, 2008, to July 31, 2012, and from July 21, 2020. REMANDED Entitlement to a TDIU on an extraschedular basis for the time period from October 29, 2007, to January 28, 2008, is remanded. FINDINGS OF FACT 1. From October 29, 2007, the preponderance of the evidence showed the Veteran's macular lesion was productive of a centrally located scotoma and visual acuity of 20/100. 2. From January 9, 2017, the preponderance of the evidence showed a centrally located scotoma, visual acuity of 20/100, and loss of nasal half of visual field. 3. From June 10, 2019, the preponderance of the evidence shows a centrally located scotoma, visual acuity of 20/400, and loss of nasal half of visual field. 4. Evidence of record does not establish that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the time period from August 1, 2012, to July 20, 2020. 5. Evidence of record establishes that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation for the time periods from January 29, 2008, to July 31, 2012, and from July 21, 2020. CONCLUSIONS OF LAW 1. From October 29, 2007, the criteria for a 20 percent rating, but no higher, for right eye macular lesion are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75, 4.84a, Diagnostic Codes 6009, 6066, 6081 (2007-2021). 2. From January 9, 2017, the criteria for a 30 percent rating, but no higher, for right eye macular lesion are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75, 4.84a, Diagnostic Codes 6009, 6066, 6080, 6081 (2007-2021). 3. From June 10, 2019, the criteria for a 40 percent rating, but no higher, for right eye macular lesion are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75, 4.84a, Diagnostic Codes 6009, 6066, 6080, 6081 (2007-2021). 4. The criteria for entitlement to a TDIU for the time period from August 1, 2012, to July 20, 2020, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2021). 5. The criteria for entitlement to a TDIU for the time periods from January 29, 2008, to July 31, 2012, and from July 21, 2020, are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to June 1995. These matters are on appeal to the Board of Veterans' Appeals (Board) from multiple rating decisions. In August 2011, a Board videoconference hearing was conducted with the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In February 2012 and September 2015, the Board remanded these matters for additional development. 1. Entitlement to an increased rating of 20 percent is granted as of October 29, 2007, for right eye macular lesion. 2. Entitlement to an increased rating of 30 percent is granted as of January 9, 2017, for right eye macular lesion. 3. Entitlement to an increased rating of 40 percent is granted as of June 10, 2019, for right eye macular lesion. The Veteran filed an increased rating claim that was received by VA on October 29, 2007. His rating was increased to 10 percent in a June 2018 rating decision made effective the date of claim. As the decision did not afford a full grant of benefits, his increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). 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 assigment. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.). The Veteran's macular lesion is rated under 38 C.F.R. § 4.79, which provides the schedule of ratings for the eye. An unhealed eye injury is rated under Diagnostic Code (DC) 6009, which directs that diseases of the eye are to be rated based on either visual impairment due to the particular condition or on incapacitating episodes according to the General Rating Formula, whichever results in a higher rating. See 38 C.F.R. § 4.79, DC 6009. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and the schedule of ratings for the eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect from May 13, 2018. 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. Under the former criteria, DCs 6000-6009 were evaluated pursuant to the General Rating Formula. The General Rating Formula instructed to evaluate disabilities based on either visual impairment due to the particular condition or on incapacitating episodes, whichever resulted in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. 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 indicated that, for VA purposes, an incapacitating episode was a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Under the revised criteria, DCs 6000-6009 instructs to evaluate disabilities pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. 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. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to 38 C.F.R. § 4.79, DCs 6061-6091. Here, there is no indication of incapacitating episodes, under either definition, throughout the appeal period. 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. 38 C.F.R. § 4.75(a). In this case, the Veteran does not contend, and the evidence does not suggest, that his right eye macular lesion causes impairment of muscle function. Under Diagnostic Code 6080, visual field defects are evaluated as follows: A 10 percent evaluation for concentric contraction of visual field with remaining field of 46 to 60 degrees bilaterally or unilaterally; with remaining field of 31 to 45 degrees unilaterally; with remaining field of 16 to 30 degrees unilaterally; loss of superior half of visual field bilaterally or unilaterally; loss of interior half of visual field unilaterally; loss of nasal half of visual field bilaterally or unilaterally; and loss of temporal half of visual field unilaterally. A 20 percent evaluation is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees unilaterally. A 30 percent evaluation is assigned for concentric contraction of visual field with remaining field of 31 to 45 degrees bilaterally; remaining field of 5 degrees unilaterally; loss of inferior half of visual field bilaterally; loss of temporal half of visual field bilaterally; and homonymous hemianopsia visual field defects. A 50 percent rating is assigned for concentric contraction of visual field with remaining field of 16 to 30 degrees bilaterally. A 70 percent rating is assigned for concentric contraction of visual field with remaining field of 6 to 15 degrees bilaterally. A 100 percent rating is assigned for concentric contraction of visual field with remaining field of 5 degrees bilaterally. Under Diagnostic Code 6081, a unilateral scotoma affecting at least one-quarter of the visual field or with centrally located scotoma of any size, a minimum 10 percent rating is warranted; alternatively, it may be evaluated based on visual impairment due to the scotoma if that would result in a higher evaluation. Visual impairment is also rated based on impairment of visual acuity (excluding developmental errors of refraction). 38 C.F.R. § 4.79, DCs 6061-6066. 38 C.F.R. § 4.76(b) dictates that evaluation of visual acuity should be done on the basis of corrected distance vision with central fixation, unless 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. If visual impairment of only one eye is service connected (as is the case here), 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). The paired organ exception does not apply here. A 10 percent rating is warranted only when there is (1) 20/50 vision in one eye with 20/40 or 20/50 vision in the other eye; (2) 20/70 vision in one eye with 20/40 vision in the other eye; or (3) 20/100 vision in one eye with 20/40 vision in the other eye. A 20 percent rating is warranted when there is (1) 20/70 vision in one eye with 20/50 vision in the other eye; (2) 20/100 vision in one eye with 20/50 vision in the other eye; (3) 20/200 vision in one eye with 20/40 vision in the other eye; or (4) 15/200 vision in one eye with 20/40 vision in the other eye. A 30 percent rating is warranted (1) when vision in both eyes is correctable to 20/70; (2) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/50; (5) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/40; (6) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/40; and (7) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/40. A 40 percent rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/70; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/50; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/50; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/50 or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/40. A 50 percent disability rating is warranted (1) when vision in one eye is correctable to 20/100 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/70; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/70; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/70; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/50. A 60 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/100; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/100; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/100; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/100; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/70 or 20/100. A 70 percent disability rating is warranted (1) when vision in one eye is correctable to 20/200 and vision in the other eye is correctable to 20/200; (2) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 20/200; (3) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 20/200; (4) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 20/200; (5) when vision in one eye is no more than light perception and vision in the other eye is correctable to 20/200; or (6) when there is anatomical loss of one eye and vision in the other eye is correctable to 20/200. An 80 percent disability rating is warranted (1) when vision in one eye is correctable to 15/200 and vision in the other eye is correctable to 15/200; (2) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 15/200; (3) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 15/200; (4) when vision in one eye is no more than light perception and vision in the other eye is correctable to 15/200; or (5) when there is anatomical loss of one eye and vision in the other eye is correctable to 15/200. A 90 percent disability rating is warranted only (1) when vision in one eye is correctable to 10/200 and vision in the other eye is correctable to 10/200; (2) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 10/200; (3) when vision in one eye is no more than light perception and vision in the other eye is correctable to 10/200; or (4) when there is anatomical loss of one eye and vision in the other eye is correctable to 10/200. A 100 percent disability rating is warranted only (1) when vision in one eye is correctable to 5/200 and vision in the other eye is correctable to 5/200; (2) when vision in one eye is no more than light perception and vision in the other eye is correctable to 5/200; (3) when there is anatomical loss of one eye and vision in the other eye is correctable to 5/200; (4) when there is no more than light perception in both eyes; or (5) when there is anatomical loss of both eyes. To determine the rating for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately rate 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. 38 C.F.R. § 4.77(c). Turning to the evidence, an October 2007 record reflected a history of blurry vision and a visual acuity of 20/100 in the right eye. A November 2007 drivers' license application shows visual acuity of 20/100 in the Veteran's right eye with normal field of vision. In his February 2008 VA examination report, the Veteran complained of blurred vision. His corrected distance visual acuity was 20/100 in the right eye. A visual field defect of constriction in both eyes was indicated, yet the examiner found no apparent ocular pathology in either eye, opining that the visual field defect does not correlate with the macular lesion in the right eye. There was a centrally located scotoma in the right eye with a size of five degrees. The Goldmann chart was unavailable. The examiner explained that the macular scar appeared stable with no decrease in visual acuity since prior examination. The examiner diagnosed dry eyes and refractive error, opining that neither were due to the macular scarring. In a September 2008 treatment record, he complained of blurry vision and dry eyes and had a right eye visual acuity of 20/125. In July 2009, he complained of blind spots when driving and intermittent itchy, watery eyes. He had a visual acuity of 20/100. He reported several months of floaters and flashes in the temporal field of the left eye. There was no overall decrease in visual acuity noted and he had full confrontation visual fields bilaterally. In August 2009, he again complained of blurry vision and endorsed peripheral vision loss since his in-service injury. His visual acuity was 20/160 in the right eye. His ophthalmologist stated that Humphries' visual field testing did show constriction in the right eye and stated, "the most likely explanation is traumatic optic neuropathy after injury described above, which is not a typical mechanism, but there are no other signs to explain the loss." In February and October 2010, it was noted that past visual field testing had been unreliable, though the Veteran endorsed loss of peripheral vision in the right eye after his head trauma in 1990. His visual acuity was 20/200 in the right eye in October 2010. During his August 2011 Board hearing, the Veteran endorsed blurry vision and a dot in the center of his eye that impaired his vision and affected his ability to read, use a computer, and drive at night. In a June 2012 VA examination report, the visual acuity was 20/80 in the right eye. A visual field defect of gross constriction of both eyes was indicated, though testing results were unavailable. The examiner opined that the decrease in visual impairment was due to maculopathy, but then stated that the Veteran's "vision has been stable since 1994. Visual field defects found on exam are nonorganic/functional in nature and not related to any ocular pathology currently service-connected." No scotoma was indicated. In an August 2012 eye consultation, it was noted that the Veteran had longstanding low vision in the right eye. The Veteran subjectively reported loss of peripheral vision in the right eye since his in-service injury. His visual acuity was 20/100, and visual field testing was stated to be unreliable, though the Veteran subjectively reported visual field constriction that had been stable since 2008. Similar findings were made in his October 2013 consultation, at which time his visual acuity was 20/160 in the right eye, and the provider attributed the visual field defect to his macular scar. In a June 2015 consultation, the Veteran reported loss of peripheral vision in his right eye. Visual field testing was noted to be of low reliability, but the ophthalmologist stated that the Veteran's visual field defect was likely secondary to his scar. The note also reflected the unreliability of past visual field testing as the Veteran was unable to fixate. In a January 2017 VA examination report, his visual acuity was 20/200 in the right eye. The Veteran reported that his condition had worsened, and he had no peripheral vision on the right side. Visual field testing showed loss of nasal half of visual field, and the examiner attributed his visual impairment to his macular scar. There was no scotoma indicated. No scarring or disfigurement were noted. Goldmann testing results showed contraction with remaining field of approximately 44 degrees in the right eye. In a January 2018 consultation, the Veteran had visual acuity of 20/100 in the right eye. It was again noted that past visual field testing had been unreliable due to fixation problems. In his most recent March 2018 VA examination report, his visual acuity was 20/100 in the right eye. He was noted to have visual field contraction and loss; however, the examiner stated that the visual field results in both eyes were invalid with low reliability in testing. The examiner elaborated that the central vision in his right eye was explained by his macular scar, but his constricted fields were not. There was no noted reason for the constricted fields in the left eye. The constricted fields in both eyes appeared to be possibly functional, meaning that the Veteran was a poor visual field test taker. Goldmann testing results showed contraction with remaining field of approximately 44 degrees in the right eye. There was no scarring or disfigurement noted, no scotoma, and no incapacitating episodes. In a June 2019 eye consultation, his visual acuity was 20/400 in the right eye. It was indicated that his visual field with scotoma were from his macular scar. In an April 2021 eye consultation, no changes to vision were noted, and the Veteran's visual acuity in the right eye was 20/400. His visual field test results were noted to be unreliable, yet severely depressed temporally. Inferonasally changes were noted and deemed to be likely due to the macular scar. It was also indicated that the scotoma was likely due to the macular scar. While only the 2008 VA examiner and his VA treating provider have indicated the existence of a scotoma, the Veteran has subjectively endorsed a partial loss of vision or blind spot in the middle of his eye throughout the appeal period. Thus, despite the variation in the record, the Board resolves all reasonable doubt in favor of the Veteran and finds that a centrally located scotoma is present and due to his macular scar. Similarly, the visual acuity readings vary throughout the record. The Veteran's visual acuity is most often read as approximately 20/100 until the June 2019 treatment record showing 20/400, though his visual acuity was 20/200 in October 2010 and January 2017, and 20/160 in August 2009 and October 2013. While the unreliability of visual field testing is noted throughout the appeal period, the evidence shows a visual field defect exists to some degree. There is also variation in whether the visual field defect is related to the macular lesion. While the 2008, 2012, and 2018 VA examiners found no correlation between the visual field defects and the macular lesion, the 2017 VA examiner and additional VA treatment providers found a correlation that was noted on several occasions, putting the matter in relative equipoise. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the visual field loss in the right eye is a result of his service-connected disability. Upon careful review of the evidence, the Board finds that the assignment of staged ratings is appropriate. A centrally located scotoma warrants a 10 percent rating, and that has existed throughout the entire appeal period. While the findings of a centrally located scotoma and concentric contraction of visual field/loss of nasal half of visual field all represent visual field impairment, there are distinct complaints of loss of peripheral vision and a central blind spot. Thus, the Board finds that separate ratings for loss of visual field and the scotoma are warranted, to be combined under 38 C.F.R. § 4.25. The objective visual field findings reflect either loss of nasal half of visual field unilaterally, or concentric contraction of remaining field between 31 and 45 degrees unilaterally; both warrant a 10 percent rating. The earliest date that these findings became factually ascertainable was the VA examination dated on January 9, 2017. While there are complaints of visual field loss prior to 2017, there are no objective findings in the record corresponding to the rating criteria on which to base a compensable rating before that time. Regarding visual acuity, while the records show visual acuity reduced various degrees throughout the appeal period, most of the readings from 2007 to 2019 are 20/100. Thus, the Board finds that despite the sporadic indications of more reduced visual acuity, a corrected distance visual acuity of 20/100 most accurately reflects the Veteran's disability picture until June 10, 2019, at which point it became factually ascertainable that his visual acuity was reduced to 20/400. Altogether, from October 29, 2007, to January 8, 2017, the Veteran is entitled to a 20 percent rating for a visual acuity of 20/100 and centrally located scotoma (both 10 percent ratings combined under 38 C.F.R. § 4.25). A 20 percent rating prior to that date is not warranted because entitlement did not become factually ascertainable within the one-year look-back period to October 29, 2006. As of January 9, 2017, the Veteran is entitled to an additional 10 percent rating for visual field impairment. Combining that 10 percent rating with the 10 percent ratings for visual acuity and scotoma, a 30 percent rating is assigned. As of June 10, 2019, it became factually ascertainable that the Veteran's visual acuity had worsened to 20/400, which represents a 20 percent rating. Combining that 20 percent rating for visual acuity with the 10 percent ratings for visual field impairment and scotoma, a 40 percent rating is assigned. Based on the foregoing discussion, the Veteran is entitled to a 20 percent rating (but no higher) from October 29, 2007; a 30 percent rating (but no higher) from January 9, 2017; and a 40 percent rating (but no higher) from June 10, 2019. Evidence of record also showed no distinct periods of time during the appeal period when the Veteran's service-connected right eye disability varied to such an extent that ratings greater or less than the 20 percent, 30 percent, and 40 percent ratings currently assigned would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Entitlement to a TDIU is denied for the time period from August 1, 2012, to July 20, 2020. 2. Entitlement to a TDIU is granted for the time periods from January 29, 2008, to July 31, 2012, and from July 21, 2020. The Veteran contends that several of his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The issue of entitlement to a TDIU was initially raised by the record in the February 2012 Board decision that remanded the increased rating claim for the Veteran's right eye macular lesion. Thus, the issue became part and parcel of that increased rating claim and the appeal period for entitlement to a TDIU begins on October 29, 2007, the date the increased rating claim was received. Rice v. Shinseki, 22 Vet. App. 447 (2009). Generally, VA will award entitlement to a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of substantially gainful employment. 38 C.F.R. § 4.16 (a). The relevant issue is not whether the veteran was unemployed or had difficulty obtaining employment, but whether the veteran could perform the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran currently is unemployable. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A TDIU rating may be assigned, where the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran has had a combined rating of 70 percent or more since January 29, 2008. The record also reflects periods of temporary total ratings from May 16, 2008, to June 30, 2008, and from January 30, 2009, to February 28, 2009. The Veteran became 100 percent disabled due to his service-connected major depressive disorder (MDD) as of January 7, 2021. Therefore, the Board must consider whether entitlement to a TDIU became moot during those timeframes. The Veteran is service-connected for the following disabilities: MDD associated with fibromyalgia (rated 30 percent from October 13, 2010, and 100 percent from January 7, 2021); fibromyalgia (rated 40 percent from October 13, 2010); left shoulder rotator cuff tear status post rotator cuff repair (rated 20 percent from June 7, 1995); lumbosacral strain (rated 20 percent from June 7, 1995); radiculopathy of the right and left upper extremity with carpal tunnel syndrome (each side rated 20 percent from April 26, 2014); right and left carpal tunnel syndrome (each side rated 10 percent from January 29, 2008 to April 26, 2014); macular lesion of the right eye (rated zero (0) percent from September 30, 1998, 20 percent from October 29, 2007, 30 percent from January 9, 2017, and 40 percent from June 10, 2019); right shoulder rotator cuff tear status post rotator cuff repair (rated 10 percent from July 25, 2003, 100 percent from December 16, 2003, 10 percent from February 1, 2004, and 20 percent from June 23, 2012); pseudofolliculitis barbae (rated 10 percent from September 30, 1998); right lateral epicondylitis (rated 10 percent from January 29, 2008, 100 percent from May 16, 2008, and 10 percent from July 1, 2008); surgical scar of the right elbow (rated 0 percent from May 16, 2008); limitation of right forearm (rated 0 percent from July 1, 2008); surgical scar of the left elbow (rated 0 percent from January 30, 2009); limitation of supination of left forearm (rate 0 percent from March 1, 2009); cervical strain with degenerative arthritis of the spine (rated 20 percent from January 29, 2008, and rated 0 percent from April 26, 2014); and bilateral shoulder rotator cuff surgery scars (rated 0 percent from May 29, 2015). As noted above, throughout the appeal, the Veteran has received various 100 percent ratings for his service-connected disabilities. The presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). That is especially true if the veteran is in receipt of a 100 percent disability rating, but his or her unemployability is alleged based on other service-connected disabilities. See id. The Veteran's temporary total ratings assigned from May 16, 2008, to June 30, 2008, and from January 30, 2009, to February 28, 2009, were for a right lateral condylar release (associated with his service-connected right lateral epicondylitis) and a left tennis elbow release (associated with his service-connected left lateral epicondylitis), respectively. As the Veteran is contending unemployment based on other service-connected disabilities as well as his elbow and forearm disabilities, these temporary total ratings do not render the issue of entitlement to a TDIU moot. On January 7, 2021, the Veteran became 100 percent disabled for MDD. While the evidence does show that the Veteran's MDD renders him unemployable, as will be explained in detail below, the evidence also indicates that his other service-connected disabilities (particularly fibromyalgia and carpal tunnel syndrome) played a significant role in his unemployability as well. Thus, the Board finds that the total schedular rating assigned from January 7, 2021, does not render the issue of entitlement to a TDIU moot. Marginal employment is not considered substantially gainful employment and is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (including, but is not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. 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. The noneconomic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. 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. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Veteran has had a complicated employment history throughout the appeal period. In a February 2008 VA examination for his eye disability, he stated he had been unemployed for less than a year and withdrew as a student because he was unable to continue. In an April 2008 VA examination, he reported that he worked as a substitute teacher but had to take time off as a full-time teacher because he could not raise his hand without spasms. The Veteran also reported being a current student working on his master's degree in special education. He further stated that he could not work as a substitute teacher in a high school but could only work in the middle school because it was less strenuous and more structured. In an October 2008 VA examination, he explained that he was going to school as a student, working as a teacher, and having difficulty with writing and typing. However, the examination report later reflects that he was no longer working and had not worked for over a year because his bilateral carpal tunnel syndrome affected his ability to write and type. In the Veteran's Vocational Rehabilitation and Education (VRE) records from November 2008, a VRE counselor relayed the Veteran's reports that he had been working as a substitute teacher for several weeks and that the position would last at least through December 2008. There are multiple, additional records detailing his continued searches for full-time teaching positions during that time period. In a July 2011 VRE services application, the Veteran reported that he worked full time as a special education teacher until July 2007, at which time he stated his reason for leaving was a fresh start and medical, and he noted his recent hand surgeries that caused trouble writing and gripping. He further reported working as a substitute teacher from August 2007 to the present and had an average monthly salary of approximately $1,000. He wrote under reason for leaving "no position available/medical." He listed that his service-connected eye injury, bilateral shoulder, bilateral hand, and back strain disabilities affected his employment. In his August 2011 Board hearing, the Veteran reported he was currently unemployed. He was released from his full-time teaching position in 2007 after missing a substantial amount of work due to surgeries. He continued to work in the school system part-time substituting, though the work depended on need and was not consistent or reliable. In a July 2012 VA examination for his carpal tunnel syndrome, the examiner opined that the Veteran should be considered a candidate for unemployability because he had ongoing bilateral hand weakness and numbness. He continually dropped items and had difficulty grasping items. Fine manipulation with hands was lost due to numbness and tingling. He had ongoing bilateral hand numbness, which limited his ability to operate a motor vehicle. It was noted that both physical demand and sedentary work would be equally affected. In a June 2013 letter, the Veteran's former employer (Shelby County Board of Education) informed him that his position was being terminated due to a budget crisis/funding elimination. In an August 2014 letter, the Veteran stated that he worked in the education field until he lost his job due to his health and downsizing. In April 2014 VA examinations, the examiner opined that the Veteran's lumbosacral strain, cervical spine disability, and bilateral carpal tunnel syndrome did not impact his ability to work. In a January 2015 VA treatment record, the Veteran reported he was looking for work but had been unsuccessful and was often over-qualified for jobs. In a March 2015 letter from the Veteran's ex-wife, she stated that he lost his job in the education field in 2012. She recalled his tremendous mood swings and depression, as well as limited mobility throughout their marriage from 2009 to 2013. In a May 2015 VA Form 21-8490 (Application for Increased Compensation Based on Unemployability), the Veteran indicated he was unable to work because of his low back pain, left and right shoulder, radiculopathy of the bilateral upper extremities, degenerative arthritis of the cervical spine, and right eye macular lesion. He completed his bachelor's degree in business administration in 2001. He reported that his disabilities affected full time work as of May 2007, and he last worked full time in May 2013. He listed Rocket Learning as previous employment where he tutored from January 2012 to April 2012. He worked as a teacher 40 hours a week in Memphis City schools until May 2013 and indicated he did not leave his last job due to his disability. The initial date of this employment is not legible on the form. While it appears to be written as August 2010, that date is inconsistent with the other evidence of record. The Board finds that August 1, 2012, is the most likely date of full-time employment, as it is consistent with the other evidence of record. In August 2015 VA examinations, the examiner indicated that the Veteran's lumbosacral strain, bilateral carpal tunnel syndrome and upper extremity radiculopathy, and degenerative arthritis of the cervical spine did not impact his ability to work. For his bilateral rotator cuff tear, the examiner opined that work would be impacted because the Veteran would be unable to do work that involves overhead activities, but the disability would not affect work in front or below the body or work involving standing or walking. In a January 2017 VA examination for bilateral lateral epicondylitis, the examiner opined that the Veteran's elbow and forearm condition would impact his ability to perform occupational tasks because he had significant difficulty with lifting, grasping, holding onto objects, using objects such as tools, or holding plates, glasses, etc. In the January 2017 VA examination for his right eye macular lesion, the examiner opined that the disability did not affect the Veteran's ability to work. In a June 2017 VA examination for his shoulder and arm conditions, the examiner explained that tasks requiring prolonged typing, writing, gripping, heavy lifting, overhead reaching, pushing, and pulling aggravated his conditions. In a June 2017 VA examination for the Veteran's lower back disability, the examiner opined that the condition was aggravated by prolonged sitting, standing, and walking, heavy lifting, kneeling, squatting, climbing, and forward bending. In a June 2017 VA examination for carpal tunnel syndrome and upper extremity radiculopathy, the examiner explained Veteran's condition was aggravated by tasks requiring repetitive typing, gripping/handling, and pushing/pulling. In a June 2017 VA examination for fibromyalgia, the examiner explained that it caused general muscle pain and weakness as well as fatigue, which limited his ability to perform tasks requiring repetitive pushing, pulling, kneeling, squatting, and heavy lifting. In a June 2017 VA examination for the Veteran's cervical spine disability, the examiner stated that tasks requiring repetitive flexion, extension, and rotation of the neck aggravated his condition. In a June 2017 VA psychiatric examination, the Veteran reported that he stopped working in 2007 after being in a motor vehicle accident because his medical condition prevented him from being able to write or stand at his job. He stated he did not work for two years and then taught part-time as a substitute teacher until 2014, at which point he was hired at a VA hospital. He denied any history of mental impairment in his capacity to perform occupational tasks. He denied any history of negative performance reviews or attendance problems. At the time, he was working full-time. In an April 2018 VA examination for the right eye macular lesion, the examiner opined that the condition did not affect the Veteran's ability to work. However, in an April 2018 VA treatment record, the Veteran reported having trouble at work. He worked at a VA hospital in social work and had an incident when he was trapped in an elevator, which induced a panic attack, necessitating an ER visit. He requested completion of reasonable accommodation paperwork due to this. In a May 2018 letter, the Veteran's treating psychiatrist, Dr. A., explained that the Veteran was transferred to another position at his employment wherein he must take either an elevator or walk six flights of stairs. He recalled the recent incident of the panic attack in the elevator, which exacerbated his PTSD symptoms. According to Dr. A., the Veteran also could not use the stairs, as his back injury impeded his ability to use many stairs and the stairwell was also in a confined space. Dr. A. opined that the extent to which the Veteran's PTSD affected his ability to work was moderate to severe, depending on the means of which he arrived at his appointed position (i.e., elevator or stairs). It was noted that the Veteran required a location of employment that he could reach without using elevators or walking several flights of stairs in a confined stairwell. In a May 2018 VA treatment record, he reported that he must walk up five flights of stairs two times daily and has had to take off work due to back and hip pain. In an August 2018 treatment record, the Veteran reported that he had been reassigned to his less rigorous job for over a month but was still struggling with the physical exertion required. In another August 2018 treatment record, he requested a functional assessment for his job because of the impact of his arm and hand disabilities. In October 2018, he requested that his physician inform his employer that he can use his heating pad at work for fibromyalgia and back pain to continue performing his duties. In a June 2019 VA examination for his carpal tunnel and upper extremity radiculopathy, the examiner reported that the Veteran was currently working as a program support administrator and had lost 2 to 4 weeks of time in the past 12 months. The examiner stated the Veteran was unable to perform repetitive motion of the hands such as typing, writing, gripping, or twisting. In a March 2020 treatment record, the Veteran endorsed anxiety and nightmares, which he attributed to problems at work. He felt he was being targeted by his supervisor, who exacerbated his PTSD and anxiety, causing panic attacks at least once weekly. In April 2020, he reported he had taken time off work due to stress and anxiety. In May 2020, he stated he had recently filed an EEOC complaint due to problems at work which caused anxiety, depression, and poor sleep. In a July 2020 Board hearing for his increased rating claim for MDD, the Veteran reported that he left his full-time job as a program support assistant on June 20, 2020 (other evidence indicates it was on July 20, 2020). He reported that he was released medically. He stated that he had had several work accommodations, including the need to take significant lengths of time off work due to his depression. Due to his PTSD, he could not go above the second floor. He had to take several breaks due to his other service-connected disabilities. He used a special keyboard, mouse, and chair for his back. He used a blackened screen for his work computer due to his light sensitivity, though sometimes his eyes would still be so bothered he would need to leave work early. He reported that his hands would swell, and he would become unable to type or perform his job duties. In a January 2021 VA psychiatric examination, he reported being forced to medically retire because of his chronic health issues. He stated he was unable to do his job anymore because of his fibromyalgia complications. He described reasonable accommodations such as the ability to take frequent breaks and sit as needed, yet still reported having difficulty performing work-related tasks. His hands would swell and become numb if he overextended himself. He often missed work because of his physical condition, which negatively impacted his mental health. He began having intermittent attendance at work in 2019 and he missed four months of work in one year. The January 2021 VA examiner opined the following: With respect to his ability to function in an occupational environment, the Veteran exhibits a number of symptoms of depression that could impair his ability to work in both sedentary and more active occupational environments (if he were otherwise physically able to do so). Irritability, difficulty with anger management, episodic emotional lability, alienation, poor coping strategies, and problems with attending and following conversations would interfere with his ability to interact and relate effectively with others (even in a one-on-one setting). Difficulty with concentration, problems with focus, low frustration tolerance, and difficulty making decisions would further interfere with his ability to effectively manage workplace tasks and demands in a consistent and productive manner. Poor sleep and associated daytime fatigue, avoidance, low mood and motivation, and poor adaptability would further reduce workplace reliability and efficiency. Thus, it appears it would be difficult for the Veteran to secure or maintain occupational engagement across all occupational environments and settings due to the impact of his depression and associated symptoms. In his April 2021 VA Form 21-8940, the Veteran listed fibromyalgia, carpal tunnel syndrome, and MDD as the disabilities preventing him from working. He reported he last worked full-time as a program support assistant on July 20, 2020. In a May 2021 VA examination for his carpal tunnel and upper extremity radiculopathy, the Veteran reported that his symptoms of numbness and tingling in the hands began in 2008 and continued to worsen over time. He had release surgeries in 2008 but continued to have symptoms, leading to decreased use of the hands and requiring the use of braces. The examiner stated that due to the worsening carpal tunnel, the Veteran was not able to use his hands and reported decreased range of motion and strength. He had loss of grip strength and was not able to lift, type, or care for himself and was now permanently disabled. The examiner opined that the Veteran was unable to perform any type of work, as he was permanently disabled. He reported lack of ability to use his hands, therefore anything requiring exertion to the wrist area would likely exacerbate the Veteran's symptoms. In a fibromyalgia examination by the same examiner, she stated that lifting was very difficult due to the Veteran's fibromyalgia. He reported being unable to walk or jog, and that his physical activity was very limited, rendering him home bound. He was not able to lift heavy objects due to his daily pain. His medications fatigued him, and he was unable to drive. He reported that climbing stairs was difficult. The examiner opined that the Veteran's fibromyalgia allowed for sedentary work only. In a June 2021 VA psychiatric examination, the Veteran reported that he medically retired in July 2020 for his carpal tunnel and fibromyalgia. In an unemployability statement, the examiner indicated that the Veteran became easily distracted, had difficulty maintaining concentration and focus on work over a period of time, had intrusive thoughts that interfere with ability to stay focused, had significant difficulty functioning around other people and felt uncomfortable around others, had disrupted sleep causing fatigue during the day, and was so depressed that he had difficulty sustaining energy and motivation to complete assignments at work. For the time period from January 29, 2008, to July 31, 2012, the Board finds that entitlement to a TDIU is granted. Regarding the substitute teaching and tutoring during this time period, the Board finds that this was not substantially gainful employment; rather, it was marginal work due to the inconsistent and unreliable nature of his schedule. Substitute teaching depends on when the need arises, which often comes at short notice with little opportunity to plan. The Veteran's tutoring position was part-time and was only maintained for a short period of four months. Moreover, evidence shows that the Veteran's earnings remained below the poverty threshold levels for one person. During this time period, evidence of record detailed that the Veteran's service-connected disabilities, namely his carpal tunnel syndrome, presented significant challenges in the workplace. He had difficulty with gripping, writing, and typing. Evidence of record also showed limitations due to other physical disabilities (i.e., service-connected shoulders and back disabilities). The Board notes that evidence of record is conflicting on whether these difficulties caused him to leave the education field full-time. The Veteran has stated on multiple occasions that his medical conditions required him to leave full-time and move to part-time substituting. However, the evidence also showed he continued to seek full-time teaching jobs, and in fact did eventually obtain such a position in August 2012. When reasonable doubt is resolved in the Veteran's favor, the Board finds that, from January 29, 2008, to July 31, 2012, his service-connected disabilities precluded securing or following a substantially gainful occupation during this time period and any employment was marginal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU is warranted for the time period from January 29, 2008, to July 31, 2012. The Board has determined that entitlement to a TDIU is not warranted for the time period from August 1, 2012, to July 20, 2020. Evidence of record showed that the Veteran's full-time teaching position from approximately August 2012 to May 2013 was substantially gainful employment. It was full-time for presumably the entirety of the school year, and there was no indication of accommodations that would amount to a protected work environment. Following the end of his full-time employment in May 2013, the June 2013 letter from his former employer clearly indicates that budget cuts led to his termination. This appears to be confirmed by lay statements from the Veteran and his ex-wife that he lost his job, and by the Veteran's indication in his VA Form 21-8940 that he did not leave the position due to his disability. Moreover, the Veteran subsequently obtained employment with a VA hospital which he maintained for approximately five years. Thus, the preponderance of the evidence does not establish that the Veteran was unemployable by reason of his service-connected disabilities from May 2013 to September 2015. Regarding the Veteran's position as a program support assistant at a VA hospital from September 2015 to July 2020, the Board finds that this was substantially gainful employment as it was a full-time position and the Veteran's income was above the poverty threshold. The Board has considered whether the employment was marginal by means of a protected work environment. While evidence does reflect that accommodations were made, the accommodations were not of such a nature that they would not be reasonably expected in other work environments. The Veteran received a workspace on the bottom two floors after it became untenable for him to climb several flights of stairs or use the elevator. He used a light-blocking computer screen as well as an ergonomic keyboard, mouse, and chair. He reported taking significant amounts of time off work. During his Board hearing, he explained that he used his own leave, Family Medical Leave Act time, and leave transfers to allow for the time off. While every employer may not have made all these accommodations, it would be reasonable to assume that these accommodations would have been made elsewhere, such as at a different hospital. Thus, as the Veteran was gainfully employed from September 2015 to July 20, 2020, the Board finds that a TDIU is not warranted during this time period. From July 21, 2020, entitlement to a TDIU is granted. Evidence of record detailed that the Veteran's service-connected disabilities progressively worsened to the point that he was medically released from his full-time position at a VA hospital on July 20, 2020. The Veteran reported in his May 2021 VA examination that his carpal tunnel syndrome had worsened over time. The examiner found that the Veteran was unable to use his hands and was unable to lift, type, or care for himself, rendering him permanently disabled. Coupled with his fibromyalgia, the examiner stated he was essentially home bound due to his severely limited physical activity. Treatment records showed that the Veteran also had significant difficulty in the workplace due to his psychiatric disabilities. Both the January and June 2021 VA examiners detailed the significant difficulty the Veteran would have in an occupational setting due to his psychiatric symptoms, which was evidenced by the record. Thus, the evidence of record is clear that the Veteran is unemployable due to his multiple service-connected disabilities for the time period from July 21, 2020. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis for the time period from October 29, 2007, to January 28, 2008, is remanded. During the time period from October 29, 2007, to January 28, 2008, the Veteran has a combined rating of 60 percent under 38 C.F.R. § 4.25. As the Veteran's combined evaluation was less than 70 percent, he does not meet the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during this time period. When the percentage requirements set forth in 38 C.F.R. § 4.16(a) are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability, and consideration is given to the veteran's background including his employment and educational history. Such cases should be referred to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). In this instance, evidence of record, including the Veteran's contentions and his employment history during the appeal period, suggests that he was unemployable due to his service-connected disabilities. Thus, entitlement to an extraschedular rating under 38 C.F.R. § 4.16(b) must be addressed in the first instance by the Director, Compensation Service. The matter is REMANDED for the following actions: 1. Refer the Veteran's electronic claims file to the Director, Compensation Service, for consideration of entitlement to an extraschedular rating under 38 C.F.R. § 4.16(b) for the time period from October 29, 2007, to January 28, 2008. In connection with the referral, the AOJ should include a full statement outlining the Veteran's service-connected disabilities, employment history, educational attainment, and all other factors bearing on the issue for the time period from October 29, 2007, to January 28, 2008. 2. After completing the above action and any other necessary development, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the June 2018 SSOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. J.D. Deane Acting 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.