EYE IMPAIRMENT OF

HARVEY P. ROBERTS · 2025 · Case ID: 25014505

MIXED

Summary

The veteran, who served from April 1972 to September 1976, appeals the denial of an increased rating for a right eye disability and entitlement to TDIU. The Board granted an increased 30 percent rating for the right eye disability, effective April 16, 2015, through February 16, 2023, based on disfigurement with asymmetry of a paired feature, specifically the altered iris and pupil. The Board denied a higher rating for the right eye disability as of February 16, 2023, finding the evidence did not support a rating above 30 percent for disfigurement and that visual field defects were not attributable to the service-connected condition. The Board also denied entitlement to TDIU, finding that while the veteran's service-connected disabilities impacted his ability to work, they did not prevent him from obtaining or sustaining substantially gainful employment, particularly sedentary or semi-skilled indoor work. The Board gave little weight to conclusory private and VA medical opinions that lacked adequate rationale or were not limited to service-connected disabilities.

Rationale

Disfigurement with asymmetry of one paired set of features (eyes); Visible tissue loss of the lower iris; Rating based on Diagnostic Code 7800

Special Benefit

TDIU

Diagnostic Code

7800

Docket No.

20-21 560

Full Decision Text

Citation Nr: 25014505
Decision Date: 12/03/25 Archive Date: 12/03/25

DOCKET NO. 20-21 560
DATE: December 3, 2025

ORDER

Entitlement to an increased 30 percent rating, but not higher, as of April 16, 2015, and prior to February 16, 2023, for a right eye disability is granted.

Entitlement to a rating in excess of 30 percent as of February 16, 2023, for a right eye disability is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, the weight of the evidence shows that as of April 16, 2015, and prior to February 16, 2023, the Veteran's right eye disability resulted in visible tissue loss and asymmetry of the eyes, one paired set of features, and not with four or five characteristics of disfigurement or asymmetry of two features or paired sets of features. The Veteran's right eye disability did not manifest with a visual field defect or pain.

2. As of February 16, 2023, the Veteran's right eye disability resulted in visible tissue loss and asymmetry of the eyes, one paired set of features, and not with four or five characteristics of disfigurement or asymmetry of two features or paired sets of features. The Veteran's right eye disability did not manifest with a visual field defect or pain.

3. The weight of the evidence supports a finding that the Veteran was not unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities during the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for an increased 30 percent rating, but not higher, for a right eye disability based on disfigurement as of April 16, 2015, and prior to February 16, 2023, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800.

2. The criteria for a disability rating in excess of 30 percent for a right eye disability as of February 16, 2023, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800.

3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1972 to September 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ).

In February 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript has been associated with the claims file.

In February 2024, the Board remanded the matter to attempt to obtain outstanding medical records from two medical providers. In March 2024 and April 2024, the requested private medical records were obtained. Therefore, the Board finds that there has been substantial compliance with the February 2024 Board remand requests. Stegall v. West, 11 Vet. App. 268 (1998).

1. Entitlement to a rating in excess of 10 percent prior to February 16, 2023, for a right eye disability.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

In considering the severity of the disability, it is essential to trace the medical history
, 2023, for a right eye disability.

In considering the severity of the 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 compensate the elements of 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 for which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). If two ratings are potentially applicable, the higher rating 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point while the claim was pending. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Fenderson v. West, 12 Vet. App. 199 (1999).

The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board's reasons for rejecting evidence favorable to the appellant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran should not assume the Board has overlooked evidence not explicitly discussed.

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a weight of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The rating of the same disability under different Diagnostic Codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994).

Prior to February 16, 2023, the Veteran's right eye disability, characterized as postoperative spindle cell nevus with photophobia, was rated under hyphenated Diagnostic Code 6015-6080. Diagnostic Code 6015 is for benign neoplasms of the eye, orbit, and adnexa, excluding skin, and provides information regarding the Veteran's right eye disability.

In March 1977, the Veteran underwent surgery to remove a neoplasm from the right eye. April 1977 records show that neoplasm was a benign spindle cell nevus and not melanoma, as was previously considered. Diagnostic Code 6080, for impairment of visual fields, was the source of the rating criteria applied during that period. 38 C.F.R. § 4.79.

Under Diagnostic Code 6080, a 100 percent rating is warranted for concentric
6015-6080. Diagnostic Code 6015 is for benign neoplasms of the eye, orbit, and adnexa, excluding skin, and provides information regarding the Veteran's right eye disability.

Under Diagnostic Code 6080, a 100 percent rating is warranted for concentric contraction of visual field with remaining field of 5 degrees bilaterally. A 70 percent rating is warranted for a remaining field of 6 to 15 degrees bilaterally, and 50 percent rating is warranted for a remaining field of 16 to 30 degrees bilaterally. A 30 percent rating is warranted where there is homonymous hemianopsia, bilateral loss of temporal half of visual field, bilateral loss of inferior half of visual field, unilateral concentric contraction of visual field, or with a remaining field of 31 to 45 degrees bilaterally. A 10 percent rating is warranted for unilateral loss of temporal half of visual field, bilateral or unilateral loss of nasal half of visual field, unilateral loss of inferior half of visual field, unilateral loss or bilateral loss of superior half of visual field, with remaining field of 16 to 30 degrees unilaterally, with remaining field of 31 to 35 degrees unilaterally, or with remaining field of 46 to 60 degrees bilaterally or unilaterally. 38 C.F.R. § 4.79, Diagnostic Code 6080.

Diagnostic Code 6080 also permits visual field defects to be rated as decreased visual acuity and provides visual acuity values for each particular defect. For loss of temporal half of visual field, loss of inferior half of visual field, or with remaining field of 31 to 45 degrees, each affected eye may be rated as if it were 20/70 vision. For loss of nasal half of visual field, loss of superior half of visual field, or with remaining field of 46 to 60 degrees, each affected eye may be rated as if it had 20/50 visual acuity. Remaining field of 16 to 30 degrees may be rated as 20/100, remaining field of 6 to 15 degrees may be rated as 20/200, and concentric contraction of visual field with remaining field of 5 degrees may be rated as 5/200. 38 C.F.R. § 4.79, Diagnostic Code 6080.

There are other Diagnostic Codes that are potentially relevant to the Veteran's right eye disability. Diagnostic Code 6015 for benign neoplasms of the eye indicates that visual impairment and nonvisual impairment, such as disfigurement, should be rated separately. Diagnostic Code 6036 is for status post corneal transplant and is rated under the General Rating Formula for Diseases of the Eye, with a minimum 10 percent rating where there is pain, photophobia, and glare sensitivity.

The General Rating Formula for Diseases of the Eye provides ratings of 10 percent and higher based on either visual impairment or successive criteria for eye disabilities with documented incapacitating episodes requiring one or more treatment visits during the preceding 12-month period.

Impairment of visual acuity is rated based upon the visual acuity of both eyes under Diagnostic Codes 6061 to 6066, which cover fact patterns ranging from anatomical loss of an eye to reduced visual acuity. The Board has briefly summarized some parts of the rating schedule covering the organs of special sense, to include the eyes, as they do not appear applicable to the Veteran's right eye disability but are referenced by other Diagnostic Codes or provide context.

The Veteran contends that a 20 percent rating is warranted for a right eye disability and is presumed to be seeking further increases up to the maximum available rating.

May 1996 VA medical records contain a drawing of the Veteran's eyes and nose. The right eye is drawn showing that the iris of the right eye is altered and a piece of the bottom of the iris is missing such that the Veteran's right eye pupil is shaped irregularly.

An April 2012 VA eye examination report notes that the Veteran's right eye had a larger than normal pupil. The examiner found that gross distortion or asymmetry of one feature or paired set of features was present, but not visible or palpable tissue loss. The examiner found that the Veteran did not have any visual field defect or a disability that could result in a visual field defect.

At a December
seeking further increases up to the maximum available rating.

At a December 2014 VA examination, the examiner found that the Veteran did not have any visual field defect or a disability that could result in a visual field defect.

On April 16, 2015, the Veteran filed VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, with a claim for an eye scar. In June 2025, the Veteran clarified that claim as seeking an increased rating for a service-connected right eye disability. The present matter arises from that April 2015 claim for increased rating.

At a July 2015 VA examination, the Veteran reported experiencing glare and photophobia in the right eye since the surgical removal of a spindle cell nevus of the iris, a large sector iridectomy surgery, in 1977. The Veteran reported that there had been no change since that time. The examiner found that the Veteran's corrected distance and near visual acuity were both 20/40 or better. The examiner found the left pupil was 3 millimeters in diameter but did not record a measurement for the right pupil. The examiner found that both pupils were round and reactive to light, and no afferent pupillary defect was present. The examiner noted corneal scarring and the large sector inferior iridectomy of the right eye, which was otherwise normal. The examiner found that the Veteran did not have a visual field defect or a condition that could result in a visual field defect and therefore did not perform visual field testing. The examiner opined that the right eye disability did not impact the Veteran's ability to work, but noted that the loss of iris tissue caused photophobia and glare issues.

A March 2016 scan of a photograph labelled as scar on right eye is of poor quality such that the eye and iris are not clearly visible.

September 2020 private medical records note that the Veteran had bilateral senile cataracts and was scheduled to undergo cataract removal surgery bilaterally. The examiner noted dermatochalasis, with skin not contacting eyelashes, of both eyelids.

At a February 2021 Board hearing, the Veteran reported experiencing glare and photophobia. The Veteran also reported that cataract surgery was planned. The Veteran referenced the surgery that occurred in 1977, but referred to the removed lesion as cancer and melanoma.

September 2021 private medical records document pseudophakia bilaterally after completion of bilateral cataract removal surgery. The Veteran had the surgery performed at two different locations due to the medical history of the right eye and, apparently, increased complexity of that eye.

At a December 2022 VA examination, the examiner noted post-surgical iridectomy, corneal scarring of the right eye, and pseudophakia and dry eye syndrome bilaterally. The Veteran's corrected vision in the right eye was 20/40 both near and at distance. The Veteran's visual field was found to be 19 degrees up, 29 degrees up temporally, 60 degrees temporally, 58 degrees down temporally, 48 degrees down, 40 degrees down nasally, 40 degrees nasally, and 32 degrees up nasally. The Left eye visual field was also reduced significantly. The examiner found that the Veteran did not have a contraction of a visual field, but did have a loss of superior half of visual field bilaterally, without scotoma and not rising to the level of legal blindness based on the better eye.

The Board has considered whether a rating in excess of 10 percent was warranted for a right eye disability as of April 16, 2015, and prior to February 16, 2023. The Board concludes that an increased 30 percent rating was warranted under criteria addressing disfigurement affecting a paired feature. Under Diagnostic Code 7800, a 30 percent rating is warranted because the Veteran's right eye disability involves visible tissue loss of the lower iris, and results in asymmetry of one paired set of features. The Board notes that the iridectomy involved removal of iris tissue and the result of that surgery could be plainly seen, which supports a finding that visible tissue loss was present. The weight of the evidence of record indicates that the Veteran's right eye iris and pupil appearance was altered by removal of a benign neoplasm from the iris. The Veteran's right eye iris and pupil were and are not symmetrical to the left eye, so the disability results in asymmetry of one paired set of features and a 30 percent rating was therefore warranted. However, the right eye disability did not manifest with gross distortion or asymmetry of two features or paired set of features, or, with four or five characteristics of disfigurement. Accordingly, the Board finds that an increased 30 percent rating, but not higher, is warranted for a right eye disability resulting in disfigurement with asymmetry of one paired set of features.

The Board has also considered whether a separate rating higher than 0 percent was warranted under Diagnostic Code 6080 for visual field defects. However, the Board finds that the weight of the evidence is against a finding that the Veteran's right eye disability manifested with a visual field defect. VA Examiners in April 2012, December 2014, and July 2015 found that the Veteran did not have a visual field defect or a disability that would result in a visual field defect. In December 2022, a VA examiner found that the Veteran had a bilateral defect resulting in the loss of the superior half of the visual field in both eyes. Assigning equal weight to each VA examiner's findings, the Board finds that the weight of the evidence is against a finding that the Veteran had a compensable visual field defect. Additionally, in December 2022, although the VA examiner found a visual field defect, that defect was present in both eyes, following cataract surgery, while the Veteran's service-connected disability is present only in the right eye. The December 2022 VA examiner did not explain how the right eye disability caused a visual field defect bilaterally, or, alternately, how the visual field defect present in both eyes could be attributed to the right eye disability in the right eye. The Board finds that even if a visual field defect were present, the weight of the evidence would be against a finding that any visual field defect was due to the service-connected right eye disability. Accordingly, the Board finds that the weight of the evidence is against the assignment of a separate rating for visual field defects resulting from the right eye disability.

The Board acknowledges that the Veteran has reported photophobia and glare. Those symptoms are contemplated by Diagnostic Code 6036, which is for status post corneal transplant. Diagnostic Code 6036 references the General Rating Formula for Diseases of the Eye, but also provides for a minimum 10 percent rating where there is pain, photophobia, and glare sensitivity. The evidence of record shows that the Veteran has a corneal scar from the iridectomy procedure. The Veteran had a portion of the iris removed which would require surgery through the cornea. A corneal transplant would also involve incision and removal of the cornea or part of the cornea for replacement, while the Veteran's surgery involved an incision in the cornea for access to the iris. The Board cannot say that the Veteran's disability is analogous to the corneal transplant, as it is effectively the same or at least the same first step as the corneal transplant. The two disabilities do not involve just similar structures and surgical techniques but the same exact structure, the cornea, and the same surgical technique, cutting or incision. The Veteran's corneal scar is homologous rather than analogous to scarring in a corneal transplant. Therefore, the Board finds that it is appropriate to apply the rating criteria as written and concludes that a separate 10 percent rating under Diagnostic Code 6036 is not warranted, as the weight of the evidence does not show that the service-connected right eye disability manifested with pain.

Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for entitlement to an increased
same first step as the corneal transplant. The two disabilities do not involve just similar structures and surgical techniques but the same exact structure, the cornea, and the same surgical technique, cutting or incision. The Veteran's corneal scar is homologous rather than analogous to scarring in a corneal transplant. Therefore, the Board finds that it is appropriate to apply the rating criteria as written and concludes that a separate 10 percent rating under Diagnostic Code 6036 is not warranted, as the weight of the evidence does not show that the service-connected right eye disability manifested with pain.

Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for entitlement to an increased 30 percent rating for a right eye disability, but not higher, under Diagnostic Code 7800 for disfigurement of a paired feature, is warranted. The Board finds that the weight of the evidence is against the assignment of any higher rating. The Board is appreciative of the Veteran's faithful and honorable service. However, as the weight of the evidence is against the claim for increased ratings for a right eye disability during the period as of April 16, 2015, and prior to February 16, 2023, the claim for any higher rating must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to a rating in excess of 30 percent as of February 16, 2023, for a right eye disability.

As of February 16, 2023, the Veteran's right eye disability has been rated 30 percent under Diagnostic Code 7800 for disfigurement resulting in asymmetry of a paired feature. The Veteran contends that an increased rating is warranted.

At a March 2023 VA eye examination, the examiner found visual field defects bilaterally. However, the right eye visual field defect was more severe and a different shape than the left eye visual field defect, and a note on the visual field chart attributes the left eye to superior eyelid interference and the right eye as "likely secondary to glare and pupil."

At a March 2023 VA scar examination, the VA examiner found that the Veteran's right eye pupil scarring involved tissue loss and distortion of the eye.

At an April 2023 VA eye examination, the examiner noted that the Veteran had glare from large iridectomy performed for melanoma removal and conflictingly noted that the Veteran had no current symptoms from melanoma removal.

At a December 2023 VA eye examination, the Veteran reported that the right eye disability symptom was a scar on the right eye and did not report the functional impact. The examiner found that the right eye pupil was much larger in diameter and not round, and that the Veteran had a coloboma of the iris. The examiner found that the Veteran had a visual field defect bilaterally, but no field defect on confrontation visual field testing and normal optic nerve appearance in both eyes and opined that the contracted visual fields bilaterally were mostly likely due to ptosis, drooping eyelids, rather than the service-connected right eye disability.

The Board has considered whether the Veteran's right eye disability warranted a rating in excess of 30 percent as of February 16, 2023. The weight of the evidence is against a finding that the Veteran's right eye disability manifested with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears, cheeks, lips), or; with four or five characteristics of disfigurement. The evidence does not show that any other paired set of features aside from the eyes were disfigured or made asymmetric by the right eye disability. Accordingly, the Board finds that a 50 percent or higher rating is not warranted for a right eye disability based upon disfigurement as the criteria for any higher rating are not met or more nearly approximated.

The Board has also considered whether a separate compensable rating was warranted under another Diagnostic Code. The evidence of record does not show decreased visual acuity to 20/50 or less. The weight of the evidence is against a finding that the Veteran's right eye disability manifested with a visual field defect. The Board acknowledges a March 2023 VA examiner attributed a right eye field defect to the service-connected right eye disability. However, that examiner did not explain or provide rationale supporting that conclusion. In December 2023, a VA examiner conducted additional tests which supported a conclusion that the Veteran's visual field defects bilaterally were attributable to ptosis rather than the service-connected right eye disability. The Board assigns more weight to the December 2023 findings than the March 202
was warranted under another Diagnostic Code. The evidence of record does not show decreased visual acuity to 20/50 or less. The weight of the evidence is against a finding that the Veteran's right eye disability manifested with a visual field defect. The Board acknowledges a March 2023 VA examiner attributed a right eye field defect to the service-connected right eye disability. However, that examiner did not explain or provide rationale supporting that conclusion. In December 2023, a VA examiner conducted additional tests which supported a conclusion that the Veteran's visual field defects bilaterally were attributable to ptosis rather than the service-connected right eye disability. The Board assigns more weight to the December 2023 findings than the March 2023 findings, because the December 2023 VA examiner conducted tests to determine the etiology of the visual field defect and provided rationale supporting the provided opinion, while the March 2023 VA examiner did not.

In April 2023, a VA examiner found that the Veteran had a right eye visual field defect, but did not test the left eye. The April 2023 VA examination report is internally inconsistent, as the examiner noted the right eye surgery had no current symptoms immediately next to a notation that glare was a current symptom. The examiner indicated that the Veteran had a loss of the superior half of the visual field, but recorded a visual field of 0 degrees for down, down temporally, and temporally, with full/normal visual fields recorded for up, up temporally, and up nasally. The finding conflicts directly with the visual field data, and that inconsistency is not explained on the examination report. Additionally, the April 2023 VA examiner noted that the origin of the right eye disability was surgical removal of melanoma, which is factually incorrect, as the removed tissue was determined to be benign. That basic factual error demonstrates that the April 2023 VA examiner did not adequately review records and consider the history of the Veteran's right eye disability. The April 2023 VA examiner also did not measure the left eye visual field for comparison, despite other examiners finding similar visual field defects bilaterally attributable to a bilateral eyelid disability. The Board assigns the April 2023 VA examination report little probative weight, and concludes that the weight of the evidence supports a finding that the Veteran's right eye disability did not manifest with a field defect. For Diagnostic Codes such as 6009, for unhealed eye injury, the Veteran's right eye disability has not resulted in documented incapacitating episodes requiring at least one but less than three treatment visits for an eye disability during a 12-month period. Accordingly, a separate rating higher than 0 percent is not warranted for any disability rated under the General Rating Formula for Diseases of the Eye.

The Board finds that the weight of the evidence is against a finding that the Veteran's right eye disability manifested with symptoms warranting a rating in excess of 30 percent or a separate compensable rating. The Board finds that the evidence is not in approximate balance, the criteria for a higher rating are not met or more nearly approximated, and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for a rating in excess of 30 percent, or any separate rating, as of February 16, 2023, must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).

It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.

Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991); Ray v. Wilkie, 31 Vet. App. 58 (2019). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a).

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.
15.

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 (1991). Marginal employment, where the earned annual income does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a).

Employment in a protected environment means a lower-income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market. 38 C.F.R. § 4.16(a); LaBruzza v. McDonough, 37 Vet. App. 111 (2024).

Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (which includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 U.S.C. § 4.16.

TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is rated 60 percent or more; or if there are two or more service-connected disabilities at least one is rated 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a).

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: disabilities of one or both upper extremities; or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system (e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); multiple injuries incurred in action; or multiple disabilities incurred as prisoner of war.

A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

During the period on appeal, the service-connected disabilities include a heart disability rated 60 percent as of March 27, 2023; a right eye disability rated 30 percent for the entire appeal period; bilateral hearing loss rated 20 percent; tinnitus rated 10 percent; facial scars rated 0 percent; anterior trunk scars rated 0 percent; posterior trunk scars rated 0 percent; left upper extremity scars rated 0 percent; right upper extremity scars rated 0
employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

During the period on appeal, the service-connected disabilities include a heart disability rated 60 percent as of March 27, 2023; a right eye disability rated 30 percent for the entire appeal period; bilateral hearing loss rated 20 percent; tinnitus rated 10 percent; facial scars rated 0 percent; anterior trunk scars rated 0 percent; posterior trunk scars rated 0 percent; left upper extremity scars rated 0 percent; right upper extremity scars rated 0 percent; and asbestosis rated 0 percent. The combined disability rating was 50 percent during the appeal period prior to March 27, 2023, and 80 percent as of March 27, 2023.

The Veteran contends that entitlement to TDIU is warranted on the basis that a service-connected right eye disability required the Veteran to accept a job with lower pay, or that service-connected disabilities caused the Veteran to be unable to secure and maintain gainful employment.

In an August 1978 physician letter, an ophthalmologist noted that the Veteran had done well after the March 1977 iridectomy, except for considerable photophobia as a residual of that surgery. The ophthalmologist reported that the Veteran had to accept a lesser paying job outside of the field in which the Veteran had trained.

In an April 2021 medical opinion, a private examiner opined that the Veteran's skin cancer is rated 40 percent disabling and the Veteran's right eye disability is rated 60 percent disabling. The Board has interpreted those statements to mean the physician believes or argues that those ratings are warranted, as opposed to misunderstanding the assigned ratings. The examiner opined that the Veteran was unable to seek and maintain employment, but did not provide rationale or explanation supporting the opinions that particular ratings or TDIU were warranted.

On a September 2023 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported being unable to secure and maintain gainful employment due to service-connected heart disease, eye cancer, and skin cancer. The Board notes that "eye cancer" refers to the service-connected right eye disability, although the removed neoplasm was found to be benign and not cancerous. The Veteran reported last working full-time and becoming too disabled to work in January 2018. In the section for listing all employment for the last five years of work, the Veteran reported retiring in 1977. In the remarks section, the Veteran reported losing a welding job in 1977 due to the service-connected right eye disability.

At an October 2023 VA heart examination, the Veteran was found to have an interview-based metabolic equivalents (METs) test result of greater than three to five METs. That means that the Veteran experienced breathlessness, fatigue, and/or dizziness at an activity level consistent with activities such as light yard work (weeding), mowing law (power mower), or brisk walking (4 miles per hour). The examiner opined that the Veteran became short of breath with minimal to moderate exertion, with associated weakness, light-headedness, and occasional chest pain.

At an October 2023 VA scar examination, an examiner found that the Veteran's service-connected scars did not result in functional impairment.

At a November 2023 VA skin examination, an examiner found that the Veteran was unable to work outdoors because of a need to avoid exposure to sun, presumably due to a history of skin cancer and/or skin neoplasms of uncertain behavior.

On a November 2024 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported last working full-time in January 2012 and becoming too disabled to work in January 2012. The Veteran reported working full-time as a line operator for a manufacturing company in January 2012. The Veteran reported being forced to quit working due to a heart disability and recurrent cancer, despite wanting to continue working.

At a February 2025 VA examination, the Veteran reported having to stay out of sun or bright lights due to previous eye surgeries. The VA examiner found that there was no facial scaring aside from the eye scar, noting that the skin cancer scar to the left ear was no longer visible and would not result in functional limitation. The examiner also opined that the posterior and anterior trunk scars and upper extremity scars would not result in functional limitations to any employment activities.

In a March 2025 opinion, a private physician opined that the Veteran was unable to seek and maintain employment due to various health issues. The physician did not provide the opinion
quit working due to a heart disability and recurrent cancer, despite wanting to continue working.

In a March 2025 opinion, a private physician opined that the Veteran was unable to seek and maintain employment due to various health issues. The physician did not provide the opinion based on only service-connected disabilities and no rationale was included.

In another March 2025 opinion, a VA physician opined that the Veteran had several medical conditions preventing seeking and maintaining employment at that time. The physician did not provide the opinion based on only service-connected disabilities and no rationale was included.

The Board defines sedentary work in the context of this particular case as work involving relatively little exercise or physical activity. The Veteran has reported working as a welder and accepting an unknown lower-paying job due to a right eye disability and has reported working as a line operator in a manufacturing environment for several years ending in 2012. The Veteran reported completing high school, but denied any other education or training. Welding and working as a line operator in a manufacturing environment might be extremely physical or might be sedentary, depending on the specific job, including weight and size of products being assembled or welded, degree of automation, and degree of separation of labor. Sedentary welding and manufacturing jobs exist, and would involve either smaller materials or large materials moved either by other employees or mechanically, such as on an assembly line. The Veteran's service-connected heart disability would likely prevent non-sedentary employment, especially physically demanding jobs such as unskilled laborer. The Veteran's right eye disability manifesting with glare and photophobia might prevent welding or certain types of welding, as reported, but the Veteran has reported no change in that disability since the 1977 surgery and has successfully held at least two jobs for some length of time. Most recently, the Veteran was able to work as a line operator for several years, indicating that the right eye disability would not prevent that type of work given the Veteran's reports of no worsening. While the Veteran has stated that he cannot work outside due to service-connected skin cancer and glare due to a service-connected eye disability, the Board notes that not all work is outside, and that the evidence does not show those limitation for indoor, sedentary work.

The Board assigns little probative weight to the April 2021 and March 2025 private medical opinions and the March 2025 VA physician medical opinion, because those opinions are conclusory, without adequate supporting rationale, and are not clearly limited to consideration of service-connected disabilities.

The Board acknowledges that the service-connected disabilities caused functional impairment. However, even considering the Veteran's limitations, the Board finds that the service-connected disabilities did not prevent sedentary work of an unskilled or semi-skilled nature such as inspection, light assembly work, and retail work not involving lifting or stocking large and heavy items, such as operating a cash register. The Veteran's service-connected disabilities were not found to result in interpersonal functional impairment, so the Veteran would remain able to perform jobs working with others, interacting with the public, interacting with a supervisor, or interacting with underlings. The weight of the evidence is against a finding that the Veteran's scars prevented gainful employment. The Veteran's skin cancer or other skin disabilities may require that the Veteran work indoors, but jobs that are predominantly or entirely indoors are widely available.

The Board acknowledges that the Veteran's disability may have caused the Veteran to accept a lower paying job after leaving welding. However, the evidence of record does not demonstrate that job was sheltered in any way, or the pay was low enough that it would be considered marginal employment.

Although the Veteran's service-connected disabilities may have had some impact on the ability to fully function occupationally, the medical evidence does not show that they were so severe that they would have prevented him from obtaining or sustaining substantially gainful employment during the period on appeal. The Board finds that the evidence does not support a finding that such exceptional or unusual circumstances existed or that the service-connected disabilities played a role upon employment, so as to prevent the Veteran from securing and maintaining substantially gainful employment.

The Board is appreciative of the Veteran's honorable service to our country. However, the Board finds that the weight of the evidence is against the claim of entitlement to TDIU. The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve
disabilities may have had some impact on the ability to fully function occupationally, the medical evidence does not show that they were so severe that they would have prevented him from obtaining or sustaining substantially gainful employment during the period on appeal. The Board finds that the evidence does not support a finding that such exceptional or unusual circumstances existed or that the service-connected disabilities played a role upon employment, so as to prevent the Veteran from securing and maintaining substantially gainful employment.

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T. Hood, 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.

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