Citation Nr: 21074238 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-15 434 DATE: December 14, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity (sciatic nerve) is denied. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity (sciatic nerve) is denied. Entitlement to a separate and compensable disability rating of 10 percent for peripheral neuropathy of the right lower extremity (femoral nerve) from May 27, 2021, is granted. Entitlement to a separate and compensable disability rating of 10 percent for peripheral neuropathy of the left lower extremity (femoral nerve) from May 27, 2021, is granted. Entitlement to an initial compensable disability rating for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus prior to February 9, 2021, is denied. Entitlement to a disability rating of 30 percent for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus on February 9, 2021, is granted. Entitlement to a disability rating in excess of 30 percent for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus since February 10, 2021, is denied. Entitlement to a disability rating in excess of 30 percent for atherosclerotic cardiovascular disease status post coronary artery bypass graft is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the right lower extremity (sciatic nerve) is manifest by no more than mild incomplete paralysis. 2. The Veteran's peripheral neuropathy of the left lower extremity (sciatic nerve) is manifest by no more than mild incomplete paralysis. 3. From May 27, 2021, the Veteran's peripheral neuropathy of the right lower extremity (femoral nerve) is manifest by no more than mild incomplete paralysis. 4. From May 27, 2021, the Veteran's peripheral neuropathy of the left lower extremity (femoral nerve) is manifest by no more than mild incomplete paralysis. 5. Prior to February 9, 2021, the Veteran's non-proliferative diabetic retinopathy with clinically significant macula edema manifests as impaired visual acuity to no worse than 20/40 bilaterally; without impaired visual fields (due to the Veteran's service-connected disabilities), diplopia, nor incapacitating episodes in a twelve-month period. 6. From February 9, 2021, the Veteran's non-proliferative diabetic retinopathy with clinically significant macula edema manifests as impaired visual acuity to no worse than 20/40 bilaterally; impaired visual fields with an average concentric contraction of no less than 31.875 degrees in the right eye and no less than 40 degrees in the left eye; without diplopia nor incapacitating episodes in a twelve-month period. 7. Metabolic equivalent (MET) testing shows the Veteran's atherosclerotic cardiovascular disease status post coronary artery bypass graft develops dyspnea and fatigue at a workload of greater than 5 but not greater than 7 METs. Furthermore, METs testing shows the Veteran did not develop these symptoms at a workload of 5 METs or less, and there was not evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or more than one episode of active congestive heart failure in the past year. 8. The Veteran's combined service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to a separate and compensable disability rating of 10 percent for peripheral neuropathy of the right lower extremity (femoral nerve) from May 27, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 4. Entitlement to a separate and compensable disability rating of 10 percent for peripheral neuropathy of the left lower extremity (femoral nerve) from May 27, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 5. The criteria for entitlement to a compensable disability rating prior to February 9, 2021 for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6030, Diagnostic Code 6066, Diagnostic Code 6080. 6. The criteria for entitlement to a disability rating of 30 percent on February 9, 2021 for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6030, Diagnostic Code 6066, Diagnostic Code 6080. 7. The criteria for entitlement to a disability rating in excess of 30 percent from February 10, 2021 for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6030, Diagnostic Code 6066, Diagnostic Code 6080. 8. The criteria entitlement to a disability rating in excess of 30 percent for atherosclerotic cardiovascular disease status post coronary artery bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 9. 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 Army from April 1965 until his honorable discharge in April 1967. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In June 2019, the Veteran and his spouse testified at a videoconference Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 30 days to allow for the submission of additional evidence. In September 2021, the Veteran was advised that the VLJ is no longer with the Board and was afforded an opportunity to obtain an additional Board hearing. In November 2021, the Veteran notified the Board that he did not wish to appear at another Board hearing and to consider his case on the evidence of record. 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. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2)...only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim." Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). 1. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity (sciatic nerve) 2. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity (sciatic nerve) 3. Entitlement to a separate and compensable disability rating of 10 percent for peripheral neuropathy of the right lower extremity (femoral nerve) from May 27, 2021 4. Entitlement to a separate and compensable disability rating of 10 percent for peripheral neuropathy of the left lower extremity (femoral nerve) from May 27, 2021 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 he is entitled to a higher disability rating. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran was afforded a VA examination in June 2016. The June 2016 VA examination showed: Regarding impairment of motor functions, the Veteran had normal strength. Regarding trophic changes, the Veteran did not have trophic changes. Regarding sensory disturbance, the Veteran reported mild numbness in his bilateral lower extremities. Regarding loss of reflexes, the Veteran had decreased reflexes in his bilateral knees and no reflexes in his ankles. Regarding pain, the Veteran did not report pain. Regarding muscle atrophy, the Veteran did not have muscle atrophy. Regarding complete paralysis, the Veteran had mild incomplete paralysis of his bilateral sciatic nerves. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, and incomplete paralysis of the sciatic nerve. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, pain, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis of the sciatic nerve. The Veteran was afforded a second VA examination on May 27, 2021. The May 2021 VA examination showed: Regarding impairment of motor functions, the Veteran had normal strength. Regarding trophic changes, the Veteran had loss of hair, smooth/shiny skin, and flat color seen in diabetic peripheral neuropathy. Regarding sensory disturbance, the Veteran reported mild paresthesias and/or dysesthesias in his bilateral lower extremities. Regarding loss of reflexes, the Veteran had normal reflexes. Regarding pain, the Veteran reported mild constant pain (may be excruciating at times) and mild intermittent pain (usually dull) in his bilateral lower extremities. Regarding muscle atrophy, the Veteran does not have muscle atrophy. Regarding complete paralysis, the Veteran has mild incomplete paralysis of the bilateral sciatic and femoral nerves. Based on the above, the Board finds that the disability is primarily manifest by trophic changes, sensory disturbance, pain, and incomplete paralysis of Veteran's bilateral sciatic and bilateral femoral nerves. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, loss of reflexes, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis of the Veteran's bilateral sciatic and bilateral femoral nerves. The Board acknowledges the lay assertions of trophic changes, sensory disturbance, loss of reflexes, and pain. However, the Board finds the medical of evidence of record to be more probative because the symptoms have been considered in the evaluations. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is for granting the Veteran's claim for a separate and compensable disability rating of 10 percent for his peripheral neuropathy of the bilateral lower extremities (femoral nerve) from May 27, 2021. However, the Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 10 percent for his peripheral neuropathy of the bilateral lower extremities (sciatic nerve). In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 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). 5. Entitlement to an initial compensable disability rating for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus prior to February 9, 2021 6. Entitlement to a disability rating of 30 percent for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus on February 9, 2021 7. Entitlement to a disability rating in excess of 30 percent for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes associated with type II diabetes mellitus from February 9, 2021 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 he is entitled to a higher disability rating. 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 noncompensable disability rating prior to February 10, 2021 and a 30 percent disability rating from February 10, 2021 under Diagnostic Code 6080-6066 for non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes. 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. In the present case, the Veteran is rated under Diagnostic Code 6080 for ratings for impairment of visual fields on the basis of Diagnostic Code 6066 for impairment of central visual acuity for his non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes. Accordingly, the Veteran is currently being rated for visual field defects on the basis of impaired central visual acuity. However, a March 2021 VA examination demonstrated that the Veteran has proliferative diabetic retinopathy with clinically significant macular edema. Therefore, the Board finds that a rating under Diagnostic Code 6080-6066 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show the Veteran has proliferative diabetic retinopathy with clinically significant macular edema. As such, the Board finds that a rating under Diagnostic Code 6040 for diabetic retinopathy is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6040. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6080-6066 for nearly 6 years and is not afforded protection under 38 U.S.C. § 1159. However, the Board notes that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159, even if there was protection. 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. Diagnostic Code 6040 provides that the Veteran's disability is to be rated under the General Rating Formula for Diseases of the Eye. During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 10, 2018). The final rule went into effect 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 both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. Prior to the May 13, 2018 changes, the criteria under the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. 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 disability 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 disability 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 disability rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Id. From May 13, 2018; the criteria under the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Where documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition in the past 12 months, a 10 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 20 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 40 percent disability rating is warranted. Where documented incapacitating episodes requiring 7 or more treatment visits for an eye condition in the past 12 months, during the past 12 months, a 60 percent disability rating is warranted. The Board also notes that the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009. Specifically, prior to the May 2018 changes, the Note provided "For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider." However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note: (1) provides "For the purposes of evaluation 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) provides "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) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. The Veteran does not assert, nor does the evidence demonstrate that the Veteran has had any incapacitating episodes under either the prior nor current criteria. However, the Board notes that during the June 2019 Board hearing, the Veteran asserted over 7 days of incapacity, but described the incapacity as a flare-up of increased symptoms within the past year (June 19, 2018 through June 18, 2019), which would require an incapacitating episode to require at least 1 but less than 3 treatment visits (severe enough to require a clinic visit to a provider specifically for treatment purposes) for an eye condition in the past 12 months for a compensable disability rating due to incapacitating episodes. In contrast, the Veteran described his "incapacitating episodes" as a period of 7 days in which he had "problems seeing, a little blurry and stuff like that; little black dots poking around your eyes, like you're trying to catch it...something is floating there...(and) was able to read the newspaper." See June 2019 Board Hearing, pp. 15-16. However, as noted above, there are no reports of requiring a clinic visit for treatment purposes. 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. Prior to February 9, 2021 A May 2016 private treatment record reveals that the Veteran had severe non-proliferative diabetic retinopathy (service connected), hypertension retinopathy (not service connected), and bilateral preoperative cataracts (not service-connected). 05.01.2016 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT BLANK 20/40 or greater BLANK BLANK LEFT BLANK 20/40 or greater BLANK BLANK The private provider evaluation examination also revealed that the Veteran has a documented visual field defect. Specifically, that the Veteran had a loss of the inferior half of the visual field in the right eye, loss of the superior half of visual field in the left eye, and a scotoma affecting at least 14 of the visual field in the left eye. However, the Board notes that the private provider did not opine on the causes of the defects nor differentiate what visual impairments were due to which diagnosis. Finally, the private provider did not provide a nexus opinion (nor rationale) to link any of the Veteran's visual defects to his active military service. Without evidence supporting that the Veteran's visual field defects (that were found to be not present the following month) are associated with the Veteran's service-connected disabilities, with a detailed rationale, the Veteran's private provider evaluation is not probative. For the above reasons, the Board finds that the May 2016 private provider evaluation is inadequate and the June 2016 VA examination is more probative. A June 2016 VA examination reveals that the Veteran had non-proliferative diabetic retinopathy with clinically significant macula edema (service connected) and bilateral pre-operative cataracts (not service-connected). 06.13.2016 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/100 20/40 or better BLANK 20/40 or better LEFT 20/70 20/40 or better BLANK 20/40 or better Unlike the private provider evaluation, the June 2016 VA examination did not reveal a visual field defect. Based on the evidence above, a compensable disability rating for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/40 corrected distance bilaterally warrants a noncompensable disability rating. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable disability rating prior to February 10, 2021. 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). From February 9, 2021 A February 9, 2021 VA examination reveals that the Veteran had proliferative diabetic retinopathy with clinically significant macula edema (service-connected) and pseudophakia (non-service connected). 02.09.2021 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/40 20/40 20/200 20/40 LEFT 20/50 20/40 20/200 20/40 The February 2021 VA examination also revealed that the Veteran has a documented visual field defect. Normal Right Left Up 45 0 5 Up Temporally 55 0 0 Temporally 85 10 50 Down Temporally 85 85 85 Down 65 50 65 Down Nasally 50 35 50 Nasally 60 55 50 Up Nasally 55 20 10 The Veteran's average concentric contraction of the visual field of each eye results in a right eye contraction of 31.875 degrees and left eye contraction of 40.000 degrees. Based on the evidence above, a disability rating of 30 percent for the Veteran's loss of visual acuity and visual field is warranted effective February 9, 2021, one day prior to the current grant of the increase in his disability rating. However, based on the evidence above, a disability rating in excess of 30 percent for the Veteran's loss of visual acuity and visual field from February 9, 2021 is not warranted. The Veteran's visual acuity of 20/40 corrected distance bilaterally warrants a noncompensable disability rating. Additionally, the Veteran's average contraction of the visual field of 31-45 degrees bilaterally warrants a 30 percent disability rating. Combining the Veteran's results for visual acuity disability rating of a noncompensable disabling and contraction of visual field disability rating of 30 percent results in a combined disability rating of 30 percent disabling. Because the Veteran's increased disability occurred after the claim was filed, the date that the increase is shown to have occurred (date entitlement arose) is the effective date of the increase. 38 C.F.R. § 3.400 (o)(1)). Here, the Veteran was afforded a VA examination on February 9, 2021 that showed that the Veteran's disability increased in severity. However, the RO granted the Veteran's increase effective February 10, 2021. Therefore, the correct date for the increase to the Veteran's 30 percent disability rating is February 9, 2021 and not February 10, 2021. However, 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 February 9, 2021. 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). 8. Entitlement to a disability rating in excess of 30 percent for atherosclerotic cardiovascular disease status post coronary artery bypass graft The Veteran asserts that he is entitled to a higher rating. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005, for arteriosclerotic heart disease (coronary artery disease). Under Diagnostic Code 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As a preliminary matter, the evidence shows that the Veteran does not have a history of congestive heart failure. One metabolic equivalent (MET) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380. The Veteran submitted a Ischemic Heart Disease (IHD) Disability Benefits Questionnaire (VA Form 21-0960A-1) that was completed in April 2016 by his private provider. The Private provider noted that the Veteran underwent a pharmacologic stress test in 2013 (3 years prior to the evaluation) that resulted in a METs of greater than 3 to 5, an EKG in 2015, and noted the February 2016 stress test produced normal (METs) results and a left ventricular ejection fraction of 55 percent. The Veteran was afforded a VA examination in June 2013. The June 2013 VA examiner found that the Veteran's METs were greater than 5 to 7, to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging) with a left ventricular ejection fraction of 59 percent with normal wall motion and wall thickness. The Veteran was afforded a second VA examination in December 2020 and January 2021. The December 2020 VA examiner found that the Veteran's METs were greater than 5 to 7, to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). The Veteran underwent a left ventricular ejection fraction evaluation in January 2021 which demonstrated a left ventricular ejection fraction of 60 percent with normal wall motion and wall thickness. Furthermore, the December 2020 VA examiner noted that the Veteran also had a left ventricular ejection fraction evaluation in October 2015, which demonstrated a left ventricular ejection fraction of 59%. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Considering all relevant evidence of record, the Board finds the Veteran's report that he cannot get up and run like he used to consistent with the evidence of record. Accordingly, the Board concludes that the Veteran's arteriosclerotic heart disease symptoms appear at the requisite METs level throughout the appeal period. These findings correspond to the criteria for no higher than a 30 percent disability rating under Diagnostic Code 7005. A higher 60 percent rating is not warranted unless there is more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Thus, the Board concludes that the Veteran's arteriosclerotic heart disease did not meet the criteria corresponding to a higher 60 percent rating. 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). 9. Entitlement to TDIU 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: type II diabetes mellitus (rated at 20 percent disabling prior to April 22, 2018 and rated at 40 percent disabling from April 22, 2018), atherosclerotic cardiovascular disease status post coronary artery bypass graft (rated at 30 percent disabling), non-proliferative diabetic retinopathy with clinically significant macula edema of the eyes (rated at a noncompensable disability rating prior to February 9, 2021 and rated at 30 percent disabling from February 9, 2021), right upper extremity (dominant) diabetic peripheral neuropathy (rated at 20 percent disabling from May 27, 2021), left upper extremity (dominant) diabetic peripheral neuropathy (rated at 20 percent disabling from May 27, 2021), tinnitus (rated at 10 percent disabling), peripheral neuropathy of the right lower extremity (sciatic) (rated at 10 percent disabling), peripheral neuropathy of the left lower extremity (sciatic) (rated at 10 percent disabling), peripheral neuropathy of the right lower extremity (femoral) from May 21, 2021 (rated at 10 percent disabling), peripheral neuropathy of the left lower extremity (femoral) from May 21, 2021 (rated at 10 percent disabling), and bilateral hearing loss (rated at a noncompensable disability rating). For the time period on appeal, the Veteran's combined disability evaluation is 60 percent prior to April 22, 2018; 70 percent from April 22, 2018 to February 9, 2021; 80 percent from February 9, 2021 to May 26, 2021; and 90 percent from May 27, 2021. Thus, the percentage requirements for a TDIU are not met prior to April 22, 2018 because the Veteran did not have at least one disability ratable at 40 percent or more, nor sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, the percentage requirements for a TDIU are met from April 22, 2018 because the Veteran has 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). The Veteran has stated that he is unable to obtain or maintain substantially gainful employment due to his overall physical disabilities, not just his service-connected disabilities. The Veteran also suffers from several non-service connected conditions, including but not limited to the residuals of a stroke, bladder cancer, hypertension, hypercholesterolemia, and peripheral vascular disease. The Veteran was afforded a VA examination in March 2021. The March 2021 VA examiner found that the Veteran did not have any restrictions for job activities required on a normal workday. The evidence of record does not demonstrate that the Veteran's service-connected disabilities alone resulted in unemployability. 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 evaluations of the Veteran's disabilities reflect that the Veteran has no impairment in his employability due to his service-connected disabilities. 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. 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.