Citation Nr: 18158987 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-35 165 DATE: December 19, 2018 ISSUES 1. Entitlement to service connection for a jaw disability, to include jaw dislocation. 2. Entitlement to service connection for a neck disability, to include as secondary to a back disability. 3. Entitlement to an initial rating in excess of 20 percent for the period prior to October 14, 2016, and in excess of 40 percent from October 14, 2016, forward, for service-connected compression fractures of the thoracolumbar spine with degenerative disc disease (DDD) and strain, to include on an extraschedular basis. 4. Entitlement to an effective date earlier than August 7, 2012, for service-connected compression fractures of the thoracolumbar spine with DDD and strain, claimed as a back disability. 5. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). ORDER Entitlement to an effective date earlier than August 7, 2012, for service-connected compression fractures of the thoracolumbar spine with DDD and strain is denied. REMANDED Entitlement to service connection for a jaw disability, to include jaw dislocation, is remanded. Entitlement to service connection for a neck disability, to include as secondary to a back disability. Entitlement to an initial rating in excess of 20 percent for the period prior to October 14, 2016, and in excess of 40 percent from October 14, 2016, forward, for service-connected compression fractures of the thoracolumbar spine with DDD and strain, to include on an extraschedular basis, is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. In an unappealed January 1958 rating decision, the RO denied entitlement to service connection for a back disability. 2. In 1974 the Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for a back disability, and in an August 1974 rating decision the AOJ denied the Veteran’s claim to reopen. The August 1974 rating decision was unappealed and became final. 3. In June 1980 the Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for a back disability, and in a July 1980 notification the AOJ denied the Veteran’s claim to reopen. The July 1980 decision was unappealed and became final. 4. The Veteran filed a claim reopen his previously denied claims of entitlement to service connection for a back disability on August 7, 2012, and in a February 2014 rating decision, the AOJ reopened the Veteran’s previously denied claim. In a July 2016 decision, the Board reopened the Veteran’s claim, and the AOJ thereafter granted service connection for compression fractures of the thoracolumbar spine with DDD and strain, effective August 7, 2012. CONCLUSION OF LAW The criteria for an effective date earlier than August 7, 2012 for the award of service connection for service-connected compression fractures of the thoracolumbar spine with DDD and strain, claimed as a back disability. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to April 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Concerning the issues of entitlement to service connection for a neck disability and for a jaw disability, on the Veteran’s September 2015 VA Form 9, the Veteran requested a hearing by live videoconference at a local VA office. The Veteran was accordingly scheduled for a videoconference to be held on June 8, 2016. However, in a June 7, 2016 correspondence, the Veteran cancelled his hearing and withdrew his request for a videoconference hearing. Instead, the Veteran directed the Board to immediately issue its opinion based on the evidence of record. No further response was received by the Board, and the Board considers the Veteran’s request for a hearing withdrawn. Therefore, this case is ready for appellate review. Concerning the issues of entitlement to an increased rating and entitlement to an earlier effective date for service-connected compression fractures of the thoracolumbar spine with DDD and strain, the Veteran filed a VA Form 9 in December 2017. In the VA Form 9, the Veteran requested a videoconference hearing. However, in an August 2018 correspondence, the Veteran provided a 90 day brief in lieu of oral argument. Given the August 2018 correspondence, the Board considers the Veteran’s request for a hearing withdrawn and such issues are ready for appellate review. The issues of entitlement to service connection for a jaw disability and a neck disability were previously remanded by the Board in July 2016. However, as explained further below, the issues are remanded for further development. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. In a June 2016 and August 2018 brief in lieu of oral argument, the Veteran asserts that he lost his job as a result of his constant back pain. In light of the Court’s holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. As noted in the Board’s prior remand, the issues of entitlement to service connection for hearing loss and tinnitus have been raised by the record in an April 2013 Report of General, Information. Such issues have still not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over such issues and refers these issues to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). Earlier Effective Date Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400 (q). If new and material evidence other than service department records is received within the appeal period or prior to appellate decision, the effective date will be as though the former decision had not been rendered. VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Entitlement to an effective date earlier than August 7, 2012, for service-connected compression fractures of the thoracolumbar spine with DDD and strain, claimed as a back disability, is denied. The Veteran appeals the effective date of the grant of his service-connected compression fractures of the thoracolumbar spine with DDD and strain. The Veteran asserts that the evidence supports three earlier effective dates: a) the date of separation from service; b) the date of his March 1974 claim to reopen; and/or c) the date of his June 1980 claim to reopen. See August 2018 90 day brief in lieu of oral argument. Regarding the date of claim, the Veteran was originally denied service connection in a January 1958 rating decision. The Veteran did not file a notice of disagreement (NOD), and the Veteran did not file any additional evidence within a year of the rating decision. Therefore, the January 1958 denial became final. In 1974, the Veteran then filed a claim to reopen the issue, and in an August 1974 rating decision, the RO denied the Veteran’s claim to reopen. Again, the Veteran did not file a NOD, and the Veteran did not file any additional evidence within a year of the rating decision. Therefore, the August 1974 denial became final. Additional medical records were filed in June 1980 in an attempt to reopen the claim. However, in a July 1980 notification, the AOJ denied the Veteran’s claim. The Veteran was informed of his appellate rights with his denial, but did not file a timely appeal, nor submit new and material evidence within one year of the denial. Furthermore, the Veteran did not assert there was clear and unmistakable error. Therefore, the decision became final. 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In August 2012, the Veteran sought to reopen his claim for entitlement to service connection for a back disability, and in a February 2014 rating decision, the AOJ reopened the Veteran’s previously denied claim. In a July 2016 decision, the Board reopened the Veteran’s claim, and the AOJ thereafter granted service connection for compression fractures of the thoracolumbar spine with DDD and strain, effective August 7, 2012. The Board finds that the date of claim was August 7, 2012, as there were no earlier statements of record that could be construed as a claim to reopen. Again, when an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400 (q). The Board acknowledges the Veteran’s argument that entitlement should be from the date of separation from service. The Board notes that the records contain complaints of a back disability as early as the Veteran’s discharge from service in 1957 and that the Veteran previously filed a claim upon discharge. However, such claim was denied in 1958 and became final, as explained above. Again, when an award is based on a claim to reopen a previously denied claim, as in this case, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q). Therefore, in this case, the proper effective date is the last date of the Veteran’s claim to reopen, August 7, 2012, as it is the later of the two dates. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Similarly, the Board acknowledges the Veteran’s argument that entitlement should be from the date of his March 1974 claim to reopen and/or the date of his June 1980 claim to reopen. However, both claims to reopen were denied by the RO and became final, as explained above. Notably in this case, when an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q). Therefore, the last claim to reopen was in August 7, 2012, and that is the proper effective date in this case. Therefore, in this case, the proper effective date is the last date of the Veteran’s claim to reopen, August 7, 2012. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. “The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” Sears v. Principi, 16 Vet. App. 244, 248 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Here, however, the Veteran has not alleged CUE in the prior decision that initially considered and denied his claim of entitlement to service connection. Even when a Veteran has a claim to reopen, “he cannot obtain an effective date earlier than the reopened claim’s application date.” Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that “no matter how [the Veteran] tries to define ‘effective date,’ the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date”). Thus, because the Veteran did not timely appeal the prior rating decisions which became final, the earliest possible effective date he can receive for the eventual grant of service connection for a back disability, absent a CUE claim, is the date of his last claim to reopen, August 7, 2012. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). For these reasons and bases, the Board finds that the preponderance of the evidence is against this claim for an effective date earlier than August 7, 2012, for the grant of service connection for compression fractures of the thoracolumbar spine with DDD and strain. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Hence, the appeal is denied as to this claim. REASONS FOR REMAND 1. Entitlement to service connection for a jaw disability is remanded. The Veteran asserts that he has a current jaw disability as a result of his service. The Veteran had a dislocated jaw in service and was treated with experimental injections. The Veteran was afforded a VA examination of his temporomandibular joint in November 2013, and was diagnosed with mandibular hypermobility with 62mm II opening greater than 5 ROM. The Veteran was afforded an additional VA examination in October 2016. The VA examiner found that the mandibular hypermobility with 62mm II opening is not a disabling condition, with excellent jaw function without negative sequale. However, the Board acknowledges that the Veteran previously noted jaw pain in 1974 upon his initial claim for service connection. However, the VA examinations of record do not indicate pain. Upon remand, the VA examiner should report as to the Veteran’s symptomatology, to include any asserted pain, and reconcile any past complaints of pain with any current findings. Additionally, the Board notes that in the Veteran’s August 2018 brief in lieu of a hearing, the Veteran, through his representative, “requests a copy of an opinion of any person the VA is putting forth as an expert, his/her resumes, CVs, lists of publications, lists of specialties, copies of all prior opinion rendered at the request of their government employers, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged.” The Veteran further objects to the VA examiner’s opinion due to lack of support in opinion with scientific, technical, or other specialized knowledge, lack of facts, tests, or data on which to base the opinion, lack of evidence, failure to reliably apply the medical, scientific principles. 2. Entitlement to service connection for a neck disability is remanded. As discussed above, in the Veteran’s August 2018 brief in lieu of a hearing, the Veteran, through his representative, “requests a copy of an opinion of any person the VA is putting forth as an expert, his/her resumes, CVs, lists of publications, lists of specialties, copies of all prior opinion rendered at the request of their government employers, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged.” The Veteran further objects to the VA examiner’s opinion due to lack of support in opinion with scientific, technical, or other specialized knowledge, lack of facts, tests, or data on which to base the opinion, lack of evidence, failure to reliably apply the medical, scientific principles. In this case, the Veteran asserts that he was in the hospital for a neck and back injury in service, that he has since had neck surgery and that he continues to be in pain. The Veteran contends that he injured his back and neck when he stood up while painting and twisted his back. The Veteran was afforded a VA examination of his neck in November 2013, and the Veteran was diagnosed with cervical spondylosis with DDD/ DJD. The examiner opined that his cervical spine condition is more likely than not the result of aging. There were no complaints regarding the cervical spine found in a review of his service treatment records. However, service treatment records do indicate ain in the lower cervical region but indicate that the Veteran’s condition improved with no pain or tenderness. See November 1956 service treatment records. Additionally, a VA addendum opinion was furnished, which opines that the Veteran’s cervical spine condition was less likely than not caused by or aggravated by the degenerative disc disease of the lumbar spine with chronic lumbosacral strain and history of compression fractures. The VA examiner noted that “while trauma to the joint or region of the spine may predispose to development of degenerative arthritic changes at that site, there is no evidence that the injury in service affected the cervical spine. However, again the Board notes the November 1956 service treatment record noting lower cervical spine pain. Therefore, the Board remands this matter for an additional VA examination and opinion as to the etiology of the Veteran’s cervical spine disability. 3. Entitlement to an initial rating in excess of 20 percent for the period prior to October 14, 2016, and in excess of 40 percent from October 14, 2016, forward, for service-connected compression fractures of the thoracolumbar spine with DDD and strain, to include on an extraschedular basis, is remanded; and entitlement to a TDIU is remanded. In the Veteran’s August 2018 brief in lieu of a hearing, the Veteran, through his representative, “requests a copy of an opinion of any person the VA is putting forth as an expert, his/her resumes, CVs, lists of publications, lists of specialties, copies of all prior opinion rendered at the request of their government employers, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged.” The Veteran further asserts that his spine disability” impacts his ability to work and identifies factors, symptoms and limitations not considered by the rating schedule.” See August 2018 brief in lieu of a hearing. The Veteran states that his symptoms are not adequately considered by the rating schedule, that the VA has failed to consider entitlement to an extraschedular rating, and that VA has failed to consider his entitlement to a TDIU. Upon remand, therefore, the Board requests an additional VA examination by a qualified physician, with the Veteran’s requested documentation of expertise complied with, and with a consideration of the Veteran’s symptoms on a schedular and extraschedular basis, and with a consideration of TDIU. Smith v. Gober, 236 F.3d 1370 (Fed. Cir. 2001) (claims for a TDIU are inextricably intertwined with the increased rating claim, and should not be decided until that issue has been resolved). In addition, the Board notes that the October 2016 VA examination indicates flare-ups. The examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Therefore, upon remand, the Board directs a new VA examination, with the VA examination report addressing the Veteran’s flare-ups in compliance with Sharp. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Provide the Veteran with appropriate notice of VA’s duties to notify and assist regarding the Veteran’s claim for entitlement to TDIU, to include notification of how to substantiate a claim for TDIU. Additionally, provide him with VA Form 21-8940 in connection with the claim for entitlement to TDIU, and request that he supply the requisite information. 3. After the above has been completed, the RO should schedule an appropriate VA examination with an appropriate physician to determine the current severity of the Veteran’s service-connected compression fractures of the thoracolumbar spine with DDD and strain. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner is to examine the Veteran’s service-connected spine disability and provide a detailed report as to the severity and symptomatology of the Veteran’s service-connected disability. The examiner is to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the joint(s) in question and any paired joint(s). See Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The examiner should detail range of motion measurements, to include the degree at which he experiences pain, any additional impact caused by motion such as weakness and fatigability, incoordination, or swelling. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is to note a full and complete history of the Veteran’s symptoms, to include symptoms associated with any flare-ups. see October 2016 VA examination noting flare-ups. Provide an opinion as to additional functional loss during flare-ups of the musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to ascertain information as to the frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, No. 16-1385 (Vet. App. September 6, 2017). To the extent possible, the examiner should identify any symptoms and functional impairments due to the back disability, alone and discuss the effect of the Veteran’s service-connected back disability on any occupational functioning and activities of daily living. 4. After completing directive (1), the RO should schedule an appropriate VA examination with an appropriate physician to determine the etiology of the Veteran’s jaw disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must elicit from the Veteran a full and complete history of his jaw disability, including symptoms and/or asserted jaw pain. Any discrepancies in reporting of jaw pain must be reconciled. See 1974 complaints of jaw pain; see also October 2016 and November 2013 VA examinations reporting no jaw pain. The examiner must provide an opinion regarding the following: (a) The examiner must comment on whether any complaints of jaw pain alone have resulted in functional impairment of earning capacity. (b) Is at least as likely as not (50 percent or greater probability) that the Veteran’s jaw disability or jaw symptoms that result in functional impairment of earning capacity, had its onset in or is otherwise related to the active military service? The examiner is directed to the Veteran’s service treatment records which note an injury to the Veteran’s jaw in service, to include dislocation, with treatment with the use of injections. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion provided must be sufficiently supported by medical knowledge and rationale, and therefore, not conclusionary in nature. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). 5. After completing directive (1), the RO should schedule an appropriate VA examination with an appropriate physician to determine the etiology of the Veteran’s neck disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must elicit from the Veteran a full and complete history of his cervical spine disability, including symptoms and/or asserted cervical spine pain. The examiner must provide an opinion regarding the following: (a) Is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability, had its onset in or is otherwise related to the Veteran’s active military service, to include the Veteran’s neck and back injury while painting tires in service? The examiner is directed to the Veteran’s November 1956 service treatment records which note an injury to the Veteran’s neck and back in service. 1956 treatment records indicate complaints of lower cervical pain with improvements. (b) Is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability was caused or aggravated by the Veteran’s service-connected spine disability? Again, the examiner is directed to the Veteran’s November 1956 service treatment records which note an injury to the Veteran’s neck and back in service. 1956 treatment records indicate complaints of lower cervical pain with improvements. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Any opinion provided must be sufficiently supported by medical knowledge and rationale, and therefore, not conclusionary in nature. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). 6. For each opinion provided above, furnish the Veteran and his representative a copy of the examination reports. Additionally, for each examiner who provides an opinion requested above, obtain all information stored in VetPort (or any other system of records) that pertains to the examiner’s credentials as a medical profressional and furnish the Veteran his represenative a copy. Such information should include but is not limited to: his/her resumes, CVs, lists of publications, lists of specialties, copies of all prior opinion rendered at the request of their government employers, etc. Should such requested information regarding the examiners be unavailable, provide evidence and an explanation of such unavailablity to the Veteran and his representative, with a copy of such notification in the electronic claims file. 7. After completing directive (3), if deemed necessary, refer the Veteran’s file to the Director of Compensation Service for consideration of entitlement to an extraschedular disability rating for his service-connected back disability. If referral is not deemed necessary, provide an explanation of such. 8. After adjudicating the claims on appeal, if the Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16 (a) (2017), and if deemed warranted, refer the claim to the Director of Compensation for consideration of an extraschedular TDIU rating. If referral is not deemed necessary, provide an explanation of such. 9. If any of the requested benefits remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel