Citation Nr: 21074388 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 13-04 663 DATE: December 15, 2021 ORDER A 60 percent rating from April 22, 2011 to February 4, 2015 for diabetic retinopathy is granted. A total disability rating based on individual unemployability (TDIU) from April 22, 2011 to May 7, 2013 also is granted. FINDINGS OF FACT 1. From April 22, 2011 to February 4, 2015, the Veteran's worst corrected visual acuity was 20/70 in his right eye and 20/50 in his left eye; his worst average concentric contraction was 23 degrees of visual field preserved in the right eye, and 19 degrees of visual field preserved in the left eye. He did not, however, experience incapacitating episodes or muscle dysfunction. 2. From April 22, 2011 to May 7, 2013, the Veteran's service-connected disabilities, most notably his diabetic retinopathy and peripheral neuropathy of his lower extremities, rendered him unable to obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSIONS OF LAW 1. From April 22, 2011 to February 4, 2015, the criteria are met for entitlement to a 60 percent rating for the diabetic retinopathy. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.79, Diagnostic Code 6080-6066. 2. The criteria also are met for entitlement to a TDIU from April 22, 2011 to May 7, 2013. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September to December 1968. These claims were last remanded in July 2019. By way of history, the Board earlier had issued a decision in September 2016 that: granted a 10 percent rating (but no higher) for diabetic retinopathy prior to April 22, 2011; granted a 30 percent rating (but no higher) for diabetic retinopathy from April 22, 2011 through February 4, 2015; granted an 80 percent rating (but no higher) for diabetic retinopathy from February 5, 2015; and determined that a TDIU was not warranted either prior to or since May 8, 2013. The Veteran appealed nearly all portions of that decision, except for the denial of a rating higher than 80 percent for the diabetic retinopathy since February 5, 2015, to the United States Court of Appeals for Veterans Claims (Veterans Court/CAVC). In April 2018, the Court issued a Mandate that: affirmed the September 2016 Board decision with regard to the denial of a rating higher than 10 percent for the diabetic retinopathy prior to April 22, 2011; but vacated the September 2016 Board decision with regard to the denial of a rating higher than 30 percent for the diabetic retinopathy from April 22, 2011 through February 4, 2015, and remanded that matter for readjudication consistent with instructions outlined in its April 2018 Memorandum Decision. The Court also noted and did not disturb the Board's determination that a TDIU was not warranted after May 8, 2013 but requested that the Board more thoroughly address on remand the issue of whether a TDIU was warranted prior to May 8, 2013. 1. A 60 percent rating from April 22, 2011 to February 4, 2015 for the diabetic retinopathy is granted. In July 2019, the Board remanded the claim of entitlement to a rating higher than 30 percent for diabetic retinopathy from April 22, 2011 through February 4, 2015. As previously mentioned, because the Court affirmed the September 2016 Board decision regarding a rating higher than 10 percent prior to April 22, 2011 and because the Veteran did not appeal the portion of the September 2016 Board decision denying a rating higher than 80 percent since February 5, 2015, only the intervening period from April 2011 through February 2015 is still at issue. Also, in the previous July 2019 remand, the Board directed that reports of VA optometry consultations in April 2011, August 2012, and February 2014, which each note the results of visual acuity testing and visual field testing for the Veteran, be obtained. In February 2020, records were requested for these specific dates; however, a negative response was received meaning no records were found. The Board will therefore proceed with adjudication. The Veteran's disability is rated at 30 percent during this intervening period under 38 C.F.R. § 4.79, Diagnostic Code (DC) 6006, for retinopathy or maculopathy. During the pendency of this appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 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. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). That said, because the review period does not extend through May 2018, in this situation, the Board will only apply the former criteria. Under the former criteria, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructs to evaluate based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Prior to May 13, 2018, 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 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. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id., § 4.75(b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). The Board notes that, effective May 13, 2018, there were no substantive changes to §§ 4.75, 4.76, or the table of Impairment of Central Visual Acuity. TABLE FOR VISUAL ACUITY The table of Impairment of Central Visual Acuity encompasses DCs 6061-66. Under DC 6061, a 100 percent rating is warranted for anatomical loss of both eyes. Under DC 6062, a 100 percent rating is warranted for no more than light perception in both eyes. DC 6063 provides ratings where there is anatomical loss of one eye (the poorer eye). A 40 percent rating is warranted where visual acuity of the other eye is 20/40. A 50 percent rating is warranted where visual acuity of the other eye is 20/50. A 60 percent rating is warranted where visual acuity of the other eye is 20/100 or 20/70. A 70 percent rating is warranted where visual acuity of the other eye is 20/200. An 80 percent rating is warranted where visual acuity of the other eye is 15/200. A 90 percent rating is warranted where visual acuity of the other eye is 10/200. A 100 percent rating is warranted where visual acuity of the other eye is 5/200. DC 6064 provides ratings where there is no more than light perception in one eye (the poorer eye). A 30 percent rating is warranted where visual acuity in the other eye is 20/40. A 40 percent rating is warranted where visual acuity in the other eye is 20/50. A 50 percent rating is warranted where visual acuity in the other eye is 20/70. A 60 percent rating is warranted where visual acuity in the other eye is 20/100. A 70 percent rating is warranted where visual acuity in the other eye is 20/200. An 80 percent rating is warranted where visual acuity in the other eye is 15/200. A 90 percent rating is warranted where visual acuity in the other eye is 10/200. A 100 percent rating is warranted where visual acuity in the other eye is 5/200. DC 6065 provides ratings where vision in one eye (the poorer eye) is 5/200. A 30 percent rating is warranted where vision in the other eye is 20/40. A 40 percent rating is warranted where vision in the other eye is 20/50. A 50 percent rating is warranted where vision in the other eye is20/70. A 60 percent rating is warranted where vision in the other eye is 20/100. A 70 percent rating is warranted where vision in the other eye is 20/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 90 percent rating is warranted where vision in the other eye is 10/200. A 100 percent rating is warranted where vision in the other eye is also 5/200. DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Where the visual acuity in one eye (the poorer eye) is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in one eye (the poorer eye) is 20/100, the following ratings apply. A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 15/200, the following ratings apply. An 80 percent rating is warranted where vision in the other eye is also 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 10/200, the following ratings apply. A 90 percent rating is warranted where vision in the other eye is also 10/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 50 percent rating is warranted where vision in the other eye is 20/70. A 40 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/40. IMPAIRMENT OF VISUAL FIELD Evaluation of visual field is based on the remaining field of vision in each eye. The examiner must record the remaining visual field of at least 16 meridians 2212 degrees apart for each eye, even though only the visual field at eight principal meridians 45 degrees apart will be used for rating purposes. Id. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. To calculate average concentric contraction, the rater should add the remaining visual field (in degrees) at each of eight principal meridians 45 degrees apart and divide 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 § 4.25. 38 C.F.R. § 4.77(c). TABLE FOR VISUAL FIELD The table of Ratings for Impairment of Visual Fields encompasses DCs 6080 6081. Homonymous hemianopsia is rated 30 percent. Loss of temporal half of visual field warrants a 30 percent rating is it is bilateral and a 10 percent rating if it is unilateral. Alternatively, this equates to 20/70 vision in each affected eye. Loss of nasal half of visual field warrants a 10 percent rating, whether or not the effect is bilateral or unilateral. Alternatively, this equates to 20/50 vision in each affected eye. Loss of inferior half of visual field warrants a 30 percent rating is it is bilateral and a 10 percent rating if it is unilateral. Alternatively, this equates to 20/70 vision in each affected eye. Loss of superior half of visual field warrants a 10 percent rating, whether or not the effect is bilateral or unilateral. Alternatively, this equates to 20/50 vision in each affected eye. Ratings are also provided for concentric contraction of visual field. Where there is a remaining field of 46 to 60 degrees, a 10 percent rating is warranted for either bilateral or unilateral involvement. Alternatively, this equates to 20/50 vision in each affected eye. Where there is a remaining field of 31 to 45 degrees, a 30 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/70 vision in each eye. Where there is a remaining field of 16 to 30 degrees, a 50 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/100 vision in each affected eye. Where there is a remaining field of 6 to 15 degrees, a 70 percent rating is warranted for bilateral involvement and a 20 percent rating is warranted for unilateral involvement. Alternatively, this equates to 20/200 vision in each affected eye. Where there is a remaining field of 5 degrees, a 100 percent rating is warranted for bilateral involvement and a 30 percent rating is warranted for unilateral involvement. Alternatively, this equates to 5/200 vision in each affected eye Turning to the current matter, April 2011 VA optometry clinic notes show corrected distance visual acuity of 20/400 bilaterally. It was additionally noted that the Veteran had, with regard to central visual field, a "small island of vision remaining," bilaterally. Similarly, findings were also noted in April 2012. As noted in the July 2019 Board remand, however, these treatment notes are not valid for rating purposes because they do not contain uncorrected visual acuity values for distance or near vision (required under the applicable version of 38C.F.R. §4.76(a)), and because the visual field test results were not accompanied by the graphical charts showing the exact degrees of visual field loss (required under the applicable version of 38 C.F.R. § 4.77(a)). During the rating period on appeal, from April 22, 2011 to February 4, 2015, the Veteran was afforded VA examinations in August 2012 and July 2014. With regards to these VA examinations, both examiners reported that objective testing indicated malingering to various degrees. Specifically, the Veteran was noted to have presented such a restricted field of vision on testing that he would be unable to orient and mobilize in an unfamiliar environment without bumping into objects. However, in each examination, the Veteran appeared to be able to navigate the examination room unassisted. As mentioned, Goldmann's charts from April 2011, August 2012, and February 2014, which measure evidence of visual field defects, had not been initially associated with the claims file, but were requested on remand and were ultimately unable to be located. Instead, an examiner in April 2021 provided an addendum opinion noting that on the day of the Veteran's examination (so, in April 2021), he did not show obvious signs of malingering. Specifically, the April 2021 examiner opined that with the extent of the laser scars on the retina, a mild to moderate visual field defect would be expected. The same examiner then concluded that the previous testing results from August 2012 and July 2014 would support the unaided mobility of the Veteran that the previous examiners had pointed to as a sign of malingering. In other words, she agreed that the previous examinations and the measurements taken showed signs of malingering. In other words, the April 2021 examiner agreed that the Veteran likely had mild to moderate visual field deficits from April 22, 2011 to February 4, 2015, but that these deficits would not have prevented him from navigating in an unfamiliar environment, thus, supporting the prior August 2012 and July 2014 examiners' contentions that the Veteran was malingering with regards to his visual field test. Further, the examiner opined that during the previous evaluations, the actual visual field deficits present would have been similar to the current findings recorded in April 2021. Consequently, the Board will rely on the visual field defect measurements recorded in April 2021 to assist in "filling in the gaps" of the rating period on appeal and will assign little probative value to the visual field measurements obtained in August 2012 and July 2014, as three VA examiners have now indicated these measurements are unreliable. In April 2021, visual field testing revealed contraction of the right visual field to 50 degrees down (65 normal, for a loss of 15), 35 degrees down nasally (50 normal, for a loss of 15), 50 degrees nasally (60 normal, for a loss of 10), 40 degrees up nasally (55 normal, for a loss of 15), 45 degrees up (45 normal, for a loss of 0), 35 degrees up temporally (55 normal, for a loss of 20), 30 degrees temporally (85 normal, for a loss of 55), and 30 degrees down temporally (85 normal, for a loss of 55). The total loss of degrees of visual fields of the right eye was 315 degrees. 500 minus 315 total degrees lost equals 185 total remaining degrees of visual field divided by 8 that resulted in an average concentric contraction of 23 degrees of visual field preserved in the right eye. Visual field testing revealed contraction of the left visual field to 50 degrees down (65 normal, for a loss of 15), 40 degrees down nasally (50 normal, for a loss of 10), 60 degrees nasally (60 normal, for a loss of 0), 50 degrees up nasally (55 normal, for a loss of 5), 40 degrees up (45 normal, for a loss of 5), 35 degrees up temporally (55 normal, for a loss of 20), 40 degrees temporally (85 normal, for a loss of 45), and 30 degrees down temporally (85 normal, for a loss of 55). The total loss of degrees of visual fields of the left eye was 345 degrees. 500 minus 345 total degrees lost equals 155 total remaining degrees of visual field divided by 8 that resulted in an average concentric contraction of 19 degrees of visual field preserved in the left eye. As to corrected vision, the August 2012 VA examination revealed corrected distance vision of 5/200, however, as will be discussed, the Board affords this finding little probative value. Specifically, the examiner noted the Veteran had initially reported 20/400 vision in each eye. The Board notes that the August 2012 VA examiner had concerns that the Veteran was malingering regarding his visual acuity testing. For example, this examiner noted that "at the end of the examination, the [V]eteran took out a piece of paper to write down the provider's name and was able to write the name in a clear manner without difficulty at a normal working distance using handwriting size that could not be read by a person with 20/400 visual acuity." The Board therefore affords this examination and these measurements less probative value. It is noteworthy to mention that in a November 2013 remand, the Board previously found the August 2012 VA examiner's suggestion that the Veteran was malingering was partially based on an inaccurate factual premise because, in addition to noting the Veteran's conduct at the time of the examination, the examiner cited only one previous visual acuity measurement showing better vision while failing to address other measurements that were more consistent with examination findings on that day. The Board therefore acknowledges this finding, however, emphasizes the extent to which the August 2012 examiner also based their opinion on observable behaviors conducted at the time of the August 2012 examination. Specifically, the Board places particular probative value in the examiner's observation regarding the Veteran's handwriting and the likelihood that his vision was, in fact, better than reported on his VA examination. In addition, as previously mentioned, the Board notes treatment records indicating corrected distance visual acuity of 20/400 bilaterally. These treatment notes, however, are not valid for rating purposes because they do not contain uncorrected visual acuity values for distance or near vision (required under the applicable version of 38C.F.R. §4.76(a)), and because the visual field test results noted are not accompanied by the graphical charts showing the exact degrees of visual field loss (required under the applicable version of 38 C.F.R. § 4.77(a)). In addition, a July 2014 examiner, too, reported that the Veteran was malingering with regard to visual field, but did not mention visual acuity. In this regard, the Board will therefore afford probative value to this examination to the extent it notes visual acuity. To this end, the Veteran reported corrected distance of 20/70 in his right eye and 20/50 in his left eye. Thus, at this juncture, the Veteran's worst corrected visual acuity was 20/70 in his right eye and 20/50 in his left eye, warranting a 20 percent rating. 38 C.F.R. § 4.84a. His worst average concentric contraction was 23 degrees of visual field preserved in the right eye, and 19 degrees of visual field preserved in the left eye. Bilateral concentric contraction with remaining field of 16 to 30 degrees warrants a 50 percent evaluation. As the Veteran's visual acuity warranted a 20 percent evaluation and his visual field defect warrants a 50 percent evaluation, an overall 60 percent evaluation is warranted for his diabetic retinopathy during this period from April 22, 2011 to February 4, 2015, when combined under the 38 C.F.R. § 4.25 Combined Ratings Table. Consequently, the Board finds a rating of 60 percent for the rating period from April 22, 2011 to February 4, 2015 for diabetic retinopathy is warranted. 2. A TDIU is granted from April 22, 2011 to May 7, 2013. The Veteran has had a combined 100 percent schedular rating for his service-connected disabilities effectively since May 8, 2013, even before the assignment of the additional 60 percent rating in this decision for his diabetic retinopathy from April 22, 2011 to February 4, 2015. He already has had an 80 percent rating for this retinopathy effectively since February 5, 2015. There are times when a 100 percent schedular rating renders moot the additional issue of entitlement to a TDIU, but there equally are times when it does not. See Bradley v. Peake, 22 Vet. App. 280 (2008). This is one such occasion since the Veteran's 100 percent combined schedular rating only dates from May 8, 2013. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation because of a service-connected disability or disabilities. For schedular consideration, a Veteran must meet one of the following conditions: 1) if he has just one service-connected disability, it must be rated at 60 percent or more, or 2) if he has more than one service-connected disability, at least one must be rated at 40 percent or more with additional service-connected disability sufficient to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, however, disabilities resulting from common etiology or single accident or affecting one or both upper or lower extremities or a single bodily system will be considered as one, collective, disability. Id. During the applicable review period from April 22, 2011 to May 7, 2013, the Veteran had the following service-connected disabilities and corresponding ratings for them: Diabetes Mellitus (20 percent from October 2006); Peripheral Neuropathy of the lower extremities (10 percent each, from October 2006); and, as of this decision, Diabetic Retinopathy (60 percent from April 22, 2011). Consequently, the ratings for the Veteran's service-connected disabilities meet the criteria for schedular consideration of entitlement to a TDIU. Moreover, as will be discussed, the evidence indicates his service-connected disabilities, when also considering his level of education, training, and prior work experience, rendered him incapable of obtaining or maintaining substantially gainful employment. Thus, this claim must be granted. The term "substantially gainful occupation" is not defined by VA regulation; however, the Veterans Court (CAVC) has held that the term refers to, at minimum, the ability to earn a living wage. A person is engaged in a "substantially gainful occupation" when that occupation provides annual income that exceeds the poverty threshold for one person. Bowling v. Principi, 15 Vet. App. 1, 7 (2001). A determination of whether a person is capable of engaging in a substantially gainful occupation must consider both that person's abilities and his employment history. Faust v. West, 13 Vet. App. 342, 355-56 (2000). The Court has held that, although substantially gainful employment is any occupation that provides an earned income that exceeds the Federal poverty threshold, the Board must ensure that the veteran is capable of carrying out such employment. Indeed, the phrase "unable to secure and follow a substantially gainful occupation" as two components: one economic and one noneconomic. The economic component simply 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 a consideration of the veteran's history, education, skill, and training, along with physical and psychological abilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). In Ray, the Court noted that Social Security Administration (SSA) regulations provide guidance regarding what is considered substantial. Such SSA regulations provide that work can be substantial even if it is done on a part-time basis or if claimants do less, get paid less, or have less responsibility than when they worked before. Id. at 72-73. The record indicates the Veteran is college educated and worked as a substitute teacher from approximately 2001 to 2012; however, according to his Social Security earnings, which were submitted to VA along with his TDIU application, VA Form 21-8940, he earned less than the Federal Poverty threshold during this period which, for example, was $10,890 in 2011 and $11,490 in 2013. It is worth repeating that, to receive a TDIU, the service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment. The Board sees the Veteran has been in receipt of Social Security benefits since well prior to the review period at issue, and while Social Security decisions are not binding on the Board, in this particular case they are persuasive. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Specifically, the Board observes that the Veteran was found to be unable to work in a SSA decision as a result of both his diabetes and peripheral neuropathy of his lower extremities. For example, the SSA found he had reduced sensation in his feet, which caused mobility issues. While he has completed some college course work, the nature of his work history as a teacher was found by the SSA to make it difficult for him to change to sedentary work. An affidavit from him submitted in June 2019 also attested that he experienced foot pain that prevented him from walking and standing for extended periods during the appeal period. He further indicates that his foot pain from his diabetic peripheral neuropathy and especially during flare-ups is ultimately what forced him to stop teaching. Teachers at least arguably spend the majority of their day on their feet, so this physical limitation would affect employability of the type he has had in years past. In addition to his foot issues, the Veteran is also noted to be legally blind during this period and reported during a June 2014 visual impairment services visit that he was assisted in his daily activities by family living nearby. While outside the review period, the Board affords this treatment note some probative value regarding the impact of his low vision on his daily activities. For example, during this visit, he reported difficulty using the telephone as a result of his low vision. The social worker providing the visual impairment services noted that the Veteran lived alone but had some difficulty with orientation and mobility issues. This is corroborated by the findings made by SSA and by the Veteran's affidavit. The Veteran also reported during this visit that he had difficulty drawing his own insulin due to low vision and reported that, prior to the date of his vision services appointment, he had his daughter assist him with this. The Board infers from this interaction that he likely needed assistance with this task and other similar tasks during the review period. In another June 2014 treatment note, the Veteran also reported difficulty reading mail and newspapers, difficulty using a standard phone, and difficulty with steps and curbs because of a combination of his low vision and neuropathy. Thus, all things considered, the Board finds the Veteran's service-connected disabilities were sufficiently severe as to render him unable to secure or maintain any form of substantially gainful employment for the period under review dating from April 22, 2011 to May 7, 2013. Accordingly, a TDIU is warranted for this period, subject to the statutes and regulations governing the payment of retroactive compensation. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.