Citation Nr: 20007322 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-48 524 DATE: January 28, 2020 ORDER Entitlement to service connection for type 2 diabetes mellitus (diabetes) is denied. Entitlement to service connection for major depressive disorder is granted. Entitlement to a rating in excess of 40 percent from July 2, 2018 for a low back disability, diagnosed as herniated nucleus pulposus L4-L5 with intervertebral disc syndrome (IVDS) (a low back disability) is denied. Entitlement to a rating of total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s diabetes did not onset in service, nor is it related to service. 2. Affording the Veteran the benefit of the doubt, his major depressive disorder is at least as likely as not the proximate result of service-connected disabilities. 3. During the appeal period, the Veteran’s low back disability was characterized by constant sharp low back pain, treated with medication, as well as a range of motion limited to 30 degrees or less; the evidence of record shows neither ankylosis nor incapacitating episodes requiring prescribed bedrest. 4. During the period on appeal, the Veteran was unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type 2 diabetes mellitus (diabetes) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for major depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to a rating in excess of 40 percent from July 2, 2018 for a low back disability, diagnosed as herniated nucleus pulposus L4-L5 with intervertebral disc syndrome (IVDS) (a low back disability) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 4. The criteria for entitlement to a rating of total disability based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to August 1992, and from March 1994 to October 2001. Service Connection The Veteran seeks service connection for diabetes and major depressive disorder. The Board finds that service connection for diabetes is unwarranted at this time, but that service connection for major depressive disorder is warranted. Generally, to establish service connection for a present disability, “the veteran must show (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, 1166–67 (Fed. Cir. 2004). 1. Entitlement to service connection for type 2 diabetes mellitus (diabetes) The Veteran seeks service connection for diabetes. The Board agrees that the Veteran has a current diagnosis of diabetes. However, the evidence weighs against finding that this disorder is related to any service-related injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). First, the Veteran’s service records – including his July 1992 separation examination report and his National Guard five-year physical dated March 2001 –reflect no documentation of diabetes in service. While the March 2001 physical report notes recent weight gain and a family history of diabetes, this does not suffice as an in-service notation of the Veteran developing the disorder. Indeed, the first noted indication of diabetes was a May 2008 report of high glucose, and a subsequent June 2008 physical examination report in which glucose intolerance is diagnosed. These indications were not noted for several years after the Veteran separated from service. Indeed, the Veteran does not assert that his diabetes has been present since service. Therefore, continuity is not shown by either the medical evidence or the Veteran’s statements. Next, the competent medical evidence does not indicate a relationship between the Veteran’s current diagnosis and his active service or service-connected disabilities. Specifically, while the Veteran is noted to have slight obesity and a family history of diabetes, the record does not imply an indication that the Veteran’s diabetes is related to an in-service illness or event. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the medical evidence of record does not point to evidence tending to suggest a direct or secondary nexus to service, service connection is not warranted for diabetes. Moreover, given the lack of any symptoms in service, obtaining a VA examination to consider this question is unlikely to yield helpful evidence, as any opinion would be based on speculation. To the extent that the Veteran relates his diabetes to active service, the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, the Veteran is not competent to provide testimony regarding the etiology of diabetes. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, any unsubstantiated statements that Veteran’s diabetes is due to service are found to lack competency. Considering the above discussion, the Board concludes that the evidence weighs against the claim for service connection and there is no doubt to be otherwise resolved. The appeal is denied. 2. Entitlement to service connection for major depressive disorder The Veteran, through counsel, asserts that his psychological condition is related to the pain from his service-connected disabilities, to include his left clavicle fracture residuals. The Board agrees and finds that the Veteran’s psychiatric symptoms are at least as likely as not due to pain resulting from his service-connected disabilities. The Veteran does not contend, nor does the evidence reflect, that his depression is directly related to any circumstance of his military service. Rather, he asserts secondary service connection, which is granted when it is shown that a disorder was proximately caused or aggravated by a service-connected injury or disorder. 38 C.F.R. § 3.310. The Veteran’s January 1978 entrance examination report does not reflect psychiatric symptoms. Similarly, while the Veteran was hospitalized for an anxiety attack in 1996, during his second period of service, the evidence does not show it was related to psychiatric symptoms. However, the evidence of record indicates that the Veteran eventually developed symptoms of depression and sought treatment. He was diagnosed with major depressive disorder in 2015. While a July 2016 report indicates that the depression is in partial remission, the Board concedes a current disability. Moreover, the Veteran has provided competent and credible evidence that his psychiatric symptoms occurred commensurate with his orthopedic disabilities. While the Veteran is not competent to diagnose a disorder that cannot be identified by unique and readily identifiable features, and is thus medical in nature, he is competent to testify as to the presence of observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Here, the Veteran reported to VA mental health providers in records dated July 2016 and May 2018 that he was depressed due to chronic pain. In consult notes dated November 2014, the Veteran indicates that his depression was due to life changes from his left clavicle fracture residuals; and in September 2017 he wrote to his provider, DR. H., that his lower back issue is causing a lot of depression. Further, he reported to a July 2016 provider that his mood fluctuates with his pain level. The Veteran reported in a July 2018 psychology note lack of sleep due to worry and anxiety caused by the frustration of renewing his physiotherapy visits. Similarly, he reported to a caregiver in May 2018 that renewing his opioid prescription makes him feel the stigma of addiction, contributing to his depression. Finally, a November 2018 e-mail indicating pain associated with spinal cord injury reflects that his back and right leg disabilities contribute to his pain, and therefore, his depression. Because the Veteran competently and credibly reports symptoms of depression due to his service-connected orthopedic and other disabilities, service connection is warranted. The Board notes evidence that the Veteran’s pain may stem from his non-service-connected neck and left knee disabilities. However, the Veteran’s reports do not differentiate the level of pain associated with those two disabilities from the pain associated with the service-connected disabilities. As such, giving the Veteran the benefit of the doubt, the Board finds that his pain is at least as likely as not related to service-connected disabilities. Remanding to determine whether the different diagnoses can be separated by etiology would likely result in undue delay in adjudicating this claim. Accordingly, because the weight of the evidence indicates that a psychiatric disorder is caused or aggravated by the Veteran’s service-connected orthopedic pain, secondary service connection is warranted for the Veteran’s acquired psychiatric disorder. Increased Ratings 3. Entitlement to a rating in excess of 40 percent from July 2, 2018 for a low back disability, diagnosed as herniated nucleus pulposus L4-L5 with intervertebral disc syndrome (IVDS) (a low back disability) Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating the extent of a Veteran’s spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). In this case, the Veteran is in receipt of a 40 percent rating for a low back disability with IVDS. The Veteran was awarded a 20 percent rating effective May 17, 2016, in a Rating Decision dated August 2016. This rating decision was not appealed within a year of issuance, nor was material evidence submitted, see Buie v. Shinseki, 24 Vet. App. 242 (2011); the next claim for an increased low back rating was received on July 2, 2018. This claim resulted in a Rating Decision dated September 2018, in which the Veteran’s rating was increased to 40 percent effective July 2, 2018, the date of the claim. A Notice of Disagreement and a VA Form 9 were timely filed. Accordingly, the period on appeal is the period from July 2, 2018, the date of the claim. Under the current criteria, an increased rating is warranted when the evidence shows: • Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); or • Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5243. Ankylosis is the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The term “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 thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243, Note 2. Additionally, an “incapacitating episode” is “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.” 38 C.F.R. § 4.71a, DCs 5237, 5243, Note 1. Based on the evidence of record, an initial rating in excess of 40 percent is not warranted. As an initial matter, a measurable range of motion during the appeal period precludes a finding of ankylosis, and while the Veteran has IVDS, no bed rest has been prescribed by a physician. Accordingly, the Veteran has not had “incapacitating episodes” as defined in the DC, and he does not meet the criteria for either a 50 percent rating under DC 5243, or a 60 percent rating for his IVDS. In August 2018, the Veteran reported to VA that he was experiencing pain in the middle of his back, shooting down his low back, down his right side, and into his right leg and foot. At his August 2018 C&P examination, the Veteran reported increasing frequency and severity of low back pain, present daily, reporting “constant sharp low back pain.” Moreover, the examiner noted 30 degrees forward flexion of the back, and pain on passive range of motion testing. Spasms in the back required manual therapy for release. Nonetheless, the examiner did not find ankylosis or incapacitating episodes of symptoms requiring prescribed bedrest. In the absence of either criterion, a higher rating is not available under the current rating criteria. Neurological Impairment When evaluating the extent of a Veteran’s spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1 The Veteran is presently in receipt of a 20 percent disability rating for neurological symptoms in his right lower extremity, from June 27, 2015. The Board finds that a rating in excess of 20 percent is not warranted. Under 38 C.F.R. § 4.124a, DC 8520, which addresses paralysis of the sciatic nerve, a 20 percent rating is warranted when the condition is “moderate” in nature, and a 40 percent rating is warranted when there is incomplete paralysis that is “moderately severe” in nature; and a 60 percent rating is warranted when the paralysis is “severe, with marked muscle atrophy.” Based on the evidence of record, the Board determines that the Veteran’s left leg radiculopathy rating does not warrant a rating in excess of 20 percent. Specifically, in June 2015, a medical examiner diagnosed the Veteran with moderate right leg radiculopathy. His peripheral nerve reflex in his knee was hypoactive (1) and in his ankle was normal (2+). His sensitivity to light touch was decreased in his right ankle/leg and foot/toes; otherwise it was normal. His muscle function was normal, except for right foot dorsiflexion which the examiner measured was 4/5. He endorsed moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left leg. Accordingly, a July 2015 rating decision correctly awarded the Veteran a 20 percent rating. Next, at a July 2016 examination, the Veteran had full muscle strength in the lower extremities, as well as normal reflexes in the knees and ankles. The examiner noted decreased sensation in the right thigh, lower leg, and foot, as well as decreased sensitivity to light touch. Nonetheless, the severity of the Veteran’s pain and paresthesias/dysesthesias had actually decreased to a mild level, with no numbness and no other symptoms of radiculopathy. Based on these results, the examiner diagnosed mild radiculopathy. Finally, in August 2018, the Veteran reported to VA pain in the middle of his middle of his back, down his low back, through his right side, right leg, and across his right foot. Then, in his August 2018 C&P examination report, the examiner noted mild pain, moderate paresthesias and/or dysesthesias, and mild numbness. The examiner diagnosed moderate sciatic nerve radiculopathy. Based on the medical evidence and the Veteran’s reports, a higher rating is not warranted. The Board has also considered whether the Veteran has any bowel or bladder complications. While the evidence, including a May 2019 affidavit, mentions urinary incontinence from prostatitis, it does not appear that these symptoms were neurological in nature such that a rating for incontinence is warranted. Accordingly, neither a rating in excess of 20 percent for radiculopathy, nor a rating in excess of 40 percent for a low back disability, is warranted. In considering the appropriate disability ratings, the Board has also considered the statements of the Veteran and of his representative that his low back disability is worse than reflected by the ratings he currently receives. Specifically, the Veteran asserts limited prolonged walking, sitting, and standing. In a May 2019 Affidavit, he also states that he must shift position while sitting and lie down frequently to relieve back pain. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that the rating awarded is appropriate. Moreover, the Board finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issue on appeal and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, these factors do not merit referral for ratings in excess of those already granted for the periods on appeal Based on the medical evidence of record discussed, the Veteran does not meet the criteria for an increased rating under DC 5243. 4. Entitlement to a rating of total disability based on individual unemployability (TDIU) The Veteran and his representative assert that symptoms of his service-connected disabilities render him unemployable. The Board finds that the Veteran is indeed unable to secure and follow substantially gainful employment. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The Board must consider if the Veteran can obtain employment more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce to be the poverty threshold for one person. See Ray v. Wilkie, 31 Vet. App. 58 (2019). A total disability rating for compensation purposes may be assigned based on individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). After a review of the evidence of record, the Board determines that TDIU is warranted. As an initial matter, the Board notes that the Veteran meets the schedular requirements under § 4.16 for TDIU during the period on appeal. Specifically, the Veteran is service connected for a low back disorder rated at 20 percent at the beginning of the appeal period, 10 percent from June 27, 2015, 20 percent from May 17, 2016, and 40 percent from July 2, 2018; prostatitis rated at 20 percent; a left clavicle disability rated at 20 percent; left elbow bursitis rated at 20 percent; radiculopathy of the right leg rated at 20 percent from June 27, 2015; right ankle arthritis rated at 10 percent; hypertension rated at 10 percent; and erectile dysfunction rated as noncompensable. Together, these ratings yield a 70 percent combined rating from April 30, 2013, and an 80 percent combined rating from July 2, 2018. Since the Veteran has at least a 40 percent rating for one disability (i.e. his 40 percent low back disability rating), he has reached the combined rating required for schedular consideration, but only as of July 2, 2018. Nevertheless, consideration for extraschedular TDIU is warranted as the evidence demonstrates that the Veteran was unable to obtain gainful employment during this period. In making this determination, the Board places significant probative value not only on the medical evidence, but the Veteran’s contentions that the combined effects of his service-connected disabilities prevent him from working. Specifically, while he has other service-connected disabilities, the Veteran’s low back disability, right leg radiculopathy, left clavicle disability, and incontinence due to prostatitis combine to render him unemployable. In his May 2013 SSA work history report, the Veteran relates that he stopped working in 2012 because of his service-connected conditions. He last worked in November 2012 as a driver. Prior to that, he was a delivery driver, a car sales representative, and an electronics quality control manager. He had to discontinue this employment because his orthopedic disabilities impaired his ability to stand for long periods and get in and out of cars for test drives. He provides further detail in a July 2019 statement, indicating that he takes frequent restroom breaks due to his prostatitis; due to his back disability, he has to walk for half an hour before sitting back down. In addition, he needs to shift positions frequently due to back pain, which interferes with his work productivity. The Veteran was examined by a vocational counselor, S.M.H., in July 2019. As H. points out, the Veteran treats his back pain by lying down for hours at a time. In addition, the Veteran’s inability to reach with his left arm due to his clavicle fracture residuals renders him one-armed. While he is right handed, the Board finds that this presents significant difficulty, especially when the Veteran’s ability to stand is impaired. Finally, the report by S.M.H. reflects that the Veteran’s pain interferes with his ability to concentrate. While each disability would not individually render the Veteran unemployable, their combined effect suffices to do so. As such, the Board determines that the Veteran’s service-connected physical disabilities combine to render him unemployable. The Board notes medical evidence, including a June 2013 report indicating a possible ability to achieve some sort of sedentary employment. The Board nonetheless determines that the Veteran’s service-connected disabilities combine to render him unemployable. The examination reports, while probative of the Veteran’s employability, do not account for the Veteran’s lay statements of inability to consistently and reliably perform work activities. Specifically, the Veteran’s pain and radiculopathy with prolonged sitting, as well as his left clavicle impairment decreased concentration, render him unemployable. If the Veteran’s low back, right leg radiculopathy, and left clavicle symptoms, as described, would affect his productivity, efficiency, and reliability, these factors would be compounded by his other service-connected disabilities. In any case, the question of whether the Veteran’s service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In making this determination, the Board is aware that, generally, the Board does not assign an extraschedular evaluation in the first instance under 38 C.F.R. § 4.16(b). However, the Board notes that 38 C.F.R. § 4.16(b) merely states that rating boards “should” refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. In any event, remanding for this evaluation would serve only to unnecessarily delay the Veteran’s claim. See Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (The Board may exercise authority with regard to questions or issues not previously addressed by an AOJ in the first instance if it determines that there would be no prejudice to the claimant); See also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Moreover, the Board notes that its grant of the Veteran’s service connection claim may affect the Veteran’s entitlement to schedular consideration if it is rated highly enough, as the criteria for a schedular TDIU are dependent, in part, on the Veteran’s service-connected disability ratings. However, since the Board already finds that the Veteran is unemployable due to service-connected disabilities, a remand is not necessary and will only delay adjudication of this claim. Again, moreover, the Veteran is not prejudiced by a grant of the benefit he is seeking. Given the unique facts of the present case, the Board has determined that consideration of the Veteran’s extraschedular TDIU claim in the first instance under § 4.16(b) is appropriate. Given that the Board is granting the full benefits on appeal for which the Board has jurisdiction, there is no prejudice to the Veteran in the Board’s consideration of this issue in the first instance. Accordingly, entitlement to TDIU is granted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia, Associate Counsel