Citation Nr: 22048890 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 17-12 282 DATE: August 26, 2022 ORDER Entitlement to service connection for a vestibular disorder, to include vertigo, is denied. Entitlement to a disability rating in excess of 40 percent for lumbosacral strain with degenerative joint disease and degenerative disc disease (DDD) is denied. Entitlement to a disability rating in excess of 10 percent prior to October 8, 2021 and in excess of 70 percent thereafter for bilateral ocular hypertension is denied. Entitlement to total disability rating based on individual unemployability (TDIU), is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The evidence is persuasively against a finding that the Veteran's vertigo is related to his active service or was caused or worsened by his service-connected disabilities. 2. Throughout the appeal period, the Veteran has not been diagnosed with intravertebral disc syndrome (IVDS) or ankylosis in his thoracolumbar spine. 3. Prior to October 8, 2021, the Veteran's bilateral ocular hypertension resulted in corrected visual acuity of, at worst, 20/50 in the right eye and 20/40 in the left eye. 4. From October 8, 2021, the Veteran's bilateral ocular hypertension resulted in corrected visual acuity of, at worst, 20/200 in the right eye and 20/70 in the left eye. 5. The evidence is at least in approximate balance that the Veteran's service-connected disabilities alone prevented him from obtaining or maintaining a substantially gainful occupation consistent with his education and experience. CONCLUSIONS OF LAW 1. The criteria for service connection for vertigo have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 2. Throughout the appeal period, the criteria for a disability rating in excess of 40 percent for a lumbosacral strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.14, 4.71a, DC 5237-5242. 3. Prior to October 8, 2021, the criteria for entitlement to an increased 10 percent rating for bilateral ocular retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 4.1-4.16, 4.31, 4.75-4.79, Diagnostic Codes (DCs) 6006, 6066. 4. From October 8, 2021, the criteria for entitlement to a rating in excess of 70 percent for bilateral ocular retinopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 4.1-4.16, 4.31, 4.75-4.79, Diagnostic Codes (DCs) 6006, 6066. 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38C.F.R. §§4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to January 1989. The Veteran and his spouse testified before the undersigned Veterans Law Judge during an April 2021 virtual hearing; a transcript is of record. These matters were remanded by the Board in June 2021 for additional development. The case has been returned for adjudication. Service Connection - Vertigo Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has a vestibular condition, to include vertigo, related to his active service. On VA examination in March 2014, the Veteran reported that he began experiencing vertigo about a year and a half prior to the examination. VA treatment records confirm his complaints of dizziness and vertigo. At the April 2021 hearing, the Veteran reported a constant buzzing in his right ear causing swaying and balance issues. On VA examination in September 2021, the Veteran's vertigo condition was confirmed. In the accompanying VA medical opinion, the examiner found the Veteran's vertigo less likely as not the result of his active service. There was not a diagnosis of vertigo in service. The service medical records are silent on a diagnosed vertigo condition. The Veteran had a one-time episode of dizziness in service in 1988. It was self-limiting and resolved over time. There is no medical or scientific evidence linking a condition from his time in service to a current condition today. The examiner found that without further evidence, the Veteran's claim could not be supported. Additionally, the examiner determined the Veteran's vertigo was less likely than not proximately due to or the result of or aggravated beyond its natural progression by his service-connected conditions. Vertigo is caused by asymmetry in the vestibular system due to damage to or dysfunction of the labyrinth, vestibular nerve, or central vestibular structures in the brainstem. The Veteran's service-connection conditions are separate and distinct conditions. There is no credible scientific or medical evidence that could support the Veteran's claim linking any of the service-connected to conditions to vertigo. Unfortunately, without further evidence, the claim cannot be supported at this time. On VA examination in April 2022, the Veterans diagnosis was confirmed as peripheral vestibular dysfunction, which has progressed since onset. The Veteran is treated with meclizine by mouth as needed, but he experienced vertigo more than one time weekly, lasting 1 to 24 hours, and nausea 6 to 8 times per month. A Dix Hallpike test revealed mild dizziness and Caloric irrigation was performed. The examiner indicated that this condition impacts the Veteran's ability to work, in that he would have to limit activity and take breaks when he is symptomatic. On VA examination in April 2022, the examiner opined that the Veteran's vestibular disorder is less likely than not related to his active service. The examiner explained that the Veteran has a history of peripheral vestibular dysfunction and although this may be due to benign paroxysmal positional vertigo, Meniere's disease, vestibular neuritis, etc.; a definitive etiology has not been established. There was insufficient evidence found on review of available records to suggest that the Veteran's peripheral vestibular dysfunction was a result of his service-connected conditions. There is no other evidence of record demonstrating a causal relationship between the Veteran's active service and his claimed vertigo. The Board has considered the Veteran's statements that he has vertigo that is caused by or related to his active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the nature, etiology, or cause of his claimed vertigo. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board finds that the Veteran's assertions as to the nature or etiology of his claimed vertigo are not competent evidence and, consequently, are afforded no probative weight. Based on the above, the Board finds that the weight of the probative evidence is against a grant of service connection for vertigo. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for vertigo must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1Vet. App.at 53. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Lumbosacral Strain The Veteran contends that his low back condition warrants a rating in excess of 40 percent. The Board finds that throughout the appeal period, the Veteran's low back condition has not manifested in limitation of motion associated with a rating higher than 40 percent, and the appeal is denied. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for diagnostic codes 5235 to 5244, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (Diagnostic Code 5235), sacroiliac injury and weakness (Diagnostic Code 5236), lumbosacral or cervical strain (Diagnostic Code 5237), spinal stenosis (Diagnostic Code 5238), spondylolisthesis or segmental instability (Diagnostic Code 5239), ankylosing spondylitis (Diagnostic Code 5240), spinal fusion (Diagnostic Code 5241), degenerative arthritis of the spine (Diagnostic Code 5242) (for degenerative arthritis of the spine, see also Diagnostic Code 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (see either Diagnostic Code 5003 or Diagnostic Code 5010) (effective Feb. 7, 2021), intervertebral disc syndrome (Diagnostic Code 5243), and complete traumatic paralysis (Diagnostic Code 5244) (effective Feb. 7, 2021). The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board notes that, effective February 7, 2021, Diagnostic Code 5242 was amended to include degenerative disc disease other than intervertebral disc syndrome. Diagnostic Code 5244 was also added to add paraplegia and quadriplegia. Diagnostic Code 5237 was not changed. The Board notes that the spine regulations were also amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). With respect to arthritis, Diagnostic Code 5010 was clarified to rate posttraumatic arthritis according to limitation of motion, dislocation, or instability. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Formula for Rating intervertebral disc syndrome Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. With any form of arthritis or other orthopedic disorders, painful motion is an important factor of disability. Joints that are actually painful, unstable, or misaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). While pain alone does not constitute functional loss, the U.S. Court of Appeals for Veterans Claims (Court) has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. Mitchell, 25 Vet. App at 44 (noting that although "pain itself does not rise to the level of functional loss," pain which "affects some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" may constitute functional loss). Additionally, the Board must consider pain on both active and passive motion of the affected joint, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). On VA examination in March 2014, the Veteran reported experiencing sharp pain in his back. He denied flare ups. Objective evidence of painful motions was shown at 65 degrees of flexion, 15 degrees of extension, and 20 degrees of lateral flexion on each side. Rotation was normal. There was no additional limitation of motion after repetitive testing, but pain and swelling were noted as well. The examiner found evidence of paraspinal edema and tenderness to palpation at T11-S3 and mild pain with bending caused functional loss. The Veteran's reflexes were normal and there was no evidence of radiculopathy. The examiner noted the diagnostic evidence of arthritis, but found no other abnormalities on examination. At the April 2021 hearing, the Veteran testified that his lumbar condition had worsened, with pain going into his extremities. On VA examination in September 2021, the Veteran reported daily flare ups involving moderate sharp and dull pain, precipitated by normal movements and use of his back. He stated he cannot perform repetitive bending or lifting for more than 5 repetitions, cannot stand or walk for longer than 10 minutes, and he cannot lift objects greater than 20 pounds. His forward flexion endpoint was measured to 75 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, right lateral flexion was 20 degrees and lateral rotation was normal. The examiner observed pain at each measure of motion. Passive motion was not measured to avoid further injury to the Veteran. There was no observed localized tenderness, guarding, or muscle spasm. The examiner did not find signs or symptoms of radiculopathy. No ankylosis or other abnormality was indicated. On VA examination in April 2022, the Veteran reported that his back condition had worsened. His diagnoses were listed as degenerative arthritis, degenerative disc disease (DDD) other than IVDS, lumbosacral strain, spina bifida occulta, and left lower extremity radiculopathy. He reported severe flare ups 3 to 5 times per month lasting up to 5 days, involving pain and spasms. He indicated flare ups were brought on by lifting and bending or getting up from a seated position, and cause inability to getting up and standing straight. He stated he was unable to do activities that require bending forward, such as washing dishes. The examiner did not perform passive range of motion testing as it may cause the Veteran severe pain, and there was evidence of pain on active motion causing functional loss. The Veteran's forward flexion was measured to 80 degrees, extension to 25 degrees, right lateral flexion to 25 degrees, and other ranges were normal, however, after repeated use over time, the Veteran's forward flexion was limited to 70 degrees, extension was 15 degrees, right lateral flexion was 15 degrees, and left lateral flexion and bilateral rotation were 20 degrees each. The examiner noted that the Veteran's limitation of motion would be the same during a flare up, and the Veteran uses a walking stick to assist him due to his lumbar spine disabilities. Finally, the examiner opined that spina bifida occulta is at least as likely as not a separate and distinct condition and the Veteran did not have definitive symptoms related to spina bifida occulta. The examiner noted that there can be impingement of the nerves at the level of the spine due to degenerative changes resulting in radiculopathy indicating that the Veteran's left lower extremity radiculopathy was related to his service-connected back condition. Veteran was noted to have DDD on imaging from 1997 and the diagnosis section has been updated to include this diagnosis. The Board finds that throughout the appeal period, the Veteran's lumbar spine condition did not warrant a rating in excess of 40 percent. In order to warrant a higher rating, the Veteran's disability must show unfavorable ankylosis of the thoracolumbar spine, or he must have experienced 6 weeks of incapacitating episodes due to IVDS during a 12-month period. Throughout the appeal period, the Veteran has not been diagnosed with IVDS and has not experienced incapacitating episodes. Moreover, given the specific definition of unfavorable ankylosis in note 5 to the general rating formula, the Veteran's lay statements regarding severe pain on flare-up, do not reflect that his lumbar spine disability symptoms have more nearly approximated unfavorable ankylosis to warrant greater than a 40 percent rating. Accordingly, a higher rating is not warranted, and the appeal is denied. Bilateral Ocular Hypertension The Veteran's central serous chorioretinopathy in the right eye has been rated under DC 6006-6066 at 10 percent from April 4, 2013 (effective date of service connection) and a May 2022 rating decision expanded the Veteran's eye disability to bilateral ocular hypertension with central serous chorioretinopathy in the right eye, with a rating of 70 percent effective October 8, 2021. See 38 C.F.R. § 4.79, Diagnostic Code (DC) 6006, for retinopathy or maculopathy. 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 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. The Board notes that the Veteran's rating under DC 6006 considers retinopathy or maculopathy not otherwise specified, and DC 6066 refers to impairment of central visual acuity. Disabilities resulting in impairment of visual acuity are rated together as the various conditions combine to create visual impairment. As such, the Veteran's bilateral ocular retinopathy will be provided as a staged rating along with his right eye chorioretinopathy, as the impairment for both conditions are related to visual acuity. Under the former criteria, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009 which 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. The definition of "incapacitating episodes" for this period was prescribed bedrest by a physician. Under the revised criteria, DC 6006 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye which 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. The description of "incapacitating episodes" was an episode severe enough to require a clinic visit to a provider specifically for treatment purposes. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. 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). 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. On VA examination in March 2014, the Veteran's diagnosis was listed as right eye central serous chorioretinopathy with a scar. He reported that he no longer experienced a black spot on his right eye vision. His correction vision was 20/50 in the right eye, and 20/40 or better in the left eye. The examiner noted .5mm pterygium nasal with abnormal fundus in the right eye. A visual field defect was found using Goldmann's equivalent III/4e target, showing + amsler metamorphopsia in the right eye only. The examiner determined the Veteran's service-connected right eye condition was the cause of his visual impairment. In October 2016, the Veteran's vision was recorded as corrected to 20/50 in the right eye and 20/20 in the left eye. VA treatment records indicate the Veteran's vision was improving as of December 2016. Further VA treatment notes show the Veteran reported a worsening in visual acuity, redness in his right eye, temporary loss of color in the right eye and a darkening of his left eye as early as May 2020. At the April 2021 hearing, the Veteran reported experiencing a black spot in his vision and a worsening of his eye condition. VA records from September 29, 2021 indicate the Veteran injured his eyes with chemical fertilizer and sought treatment. On VA examination in October 2021, the Veteran's right eye visual acuity was corrected to 20/200 and his left eye acuity was corrected to 20/70. The examiner noted bilateral nasal pterygium that was not visually significant, but also bilateral cataracts that were significant and impact the Veteran's best corrected visual acuity. The examiner observed right eye pigment changes with a temporal macular scar. The Veteran's visual field was not contracted, but he had a loss of the superior half of the right visual field. The examiner found that the Veteran's ocular hypertension was not causing any optic nerve damage at this time. In a March 2022 VA medical opinion, the examiner stated that the Veteran's right eye chorioretinopathy is due to damage or disease of the choroid and the retina of the eye, and is not related to the service-connected systemic conditions such as left kidney condition, lumbosacral strain, or chronic allergic rhinitis. The examiner opined that the Veteran's current right eye acuity is a result, at least in part, of the Veteran's service-connected condition of central serous chorioretinopathy of the right eye. On VA medical opinion in May 2022, the examiner opined that the Veteran's diagnosis of macular degeneration was an incorrect diagnosis, and it should have been diagnosed as service-connected central serous chorioretinopathy which is also treated with Avastin injections. The examiner did find that the Veteran's ocular hypertension is at least as likely as not aggravated beyond its natural progression by the use of steroids to treat his allergic rhinitis, as use of steroid use is known to increase IOP. Prior to October 8, 2021, the Veteran's eye condition was rated at 10 percent. In order to warrant a rating in excess of 10 percent under the rating formula, the Veteran's worse eye must be limited to 20/70 or less acuity. Here, there is no evidence that either eye was limited to 20/70 or less prior to October 2021. While the Veteran reported a worsening in May 2020, there is no factual evidence of the Veteran's worsened visual acuity worse than 20/50 in the right eye and 20/40 in the left prior to October 8, 2021. Additionally, a right rating of 20 percent is not warranted unless there were documented incapacitating episodes requiring at least 3 treatment visits in a 12-month period. While records show the Veteran attended regular treatment and that he experienced a chemical injury in 2021, there is no evidence that the Veteran's eye condition caused documented incapacitating episodes requiring at least 3 treatment visits in a 12-month period during the appeal period, nor has the Veteran argued otherwise. From October 8, 2021, the Veteran's eye condition is rated at 70 percent. In order to warrant a rating in excess of 70 percent, the Veteran's visual acuity must be limited to at least 15/200 in one eye. Throughout the appeal period, the Veteran's worst recorded visual acuity was at the October 2021 examination, where his right eye acuity was limited to 20/200 and his left eye was limited to 20/70. As such, a rating in excess of 70 percent is not warranted, and the appeal is denied. The Board acknowledges the Veteran's statements in November 2021 that he has had blindness in both eyes due to his use of Lisinopril and/or they coincided with headaches. The Board notes that the Veteran's VA treatment records note the Veteran providing a history of short periods (hours) of blindness due to headaches, particularly after a TBI at Lowe's when a pole hit him in the head. The blindness has not been medically documented and apparently coincided with headaches, for which the Veteran is not currently service-connected. Thus, the Board finds that the VA medical examinations as discussed above are the most probative evidence of record and are sufficiently indicative of the Veteran's level of disability in his right eye during the relevant period. TDIU An award of TDIU requires that the claimant show an inability to undertake substantially gainful employment as a result of a service-connected disability or disabilities.38C.F.R. §4.16(b) ("[A]ll veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled."). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, the central inquiry is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. See 38C.F.R. §§3.341, 4.16, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, at 452 (2009). A total disability rating may be assigned when 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). The Veteran met the schedular criteria for TDIU throughout the appeal period, and has been earning a combined rating of 100 percent from October 8, 2021, therefore, a TDIU is moot from that date. In the Veteran's April 2013 application for TDIU, he indicated he had not worked full time since March 2010. Documents received from his previous employer show he was an independent contractor earning commissions until the end of March 2010. Records furnished by the Social Security Administration (SSA) which indicate the Veteran was not found to be disabled through December 31, 2013. While VA is not bound by the findings of SSA reports, records from SSA can be probative and persuasive in helping VA determine whether a TDIU is warranted. VA treatment records show the Veteran earned a bachelor's degree in health care and a master's degree in business, and did not think that his depression was a barrier to employment. At the April 2021 hearing, the Veteran testified that he last worked full-time about 2010 or 2011 with the exception of a period of three months in 2019. He worked at a car dealership during 2019 until he needed an injection in his eye and his vision and medications precluded his continued employment. (Continued on the next page) In July 2021, the Veteran provided a statement that he completed a claims adjuster program in 2018 but was having difficulty obtaining employment due to his age and his ongoing health issues of vertigo, hypertension, and back pain. The evidence of record reflects the Veteran experiences back pain, affecting his ability to bend or stand for long periods of time or perform even simple activities. His left lower extremity radiculopathy also affects his ability to stand or walk for long periods of time. The Veteran's kidney condition causes symptoms of impaired kidney function, transient edema and upper limit of creatinine testing protocol. His bilateral ocular hypertension affects his ability to see effectively. Additionally, the Veteran experiences depressive disorder due to his back pain. Accordingly, considering the collective impact of his service-connected disabilities, the Board finds the evidence is at least in approximate balance that the Veteran's service-connected disabilities alone preclude him from obtaining a substantially gainful occupation consistent with his education, training, and experience. Therefore, entitlement to TDIU is granted. The AOJ will set the effective date of the grant of TDIU in an implementing rating decision, which preserves the Veteran's right to appeal in the first instance if he wishes to do so. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. E. Lee 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.