Citation Nr: 20062575 Decision Date: 09/23/20 Archive Date: 09/23/20 DOCKET NO. 17-11 260 DATE: September 23, 2020 ORDER Prior to June 27, 2016, an initial compensable rating for service-connected residuals of prostate cancer is denied. From June 27, 2016, to October 18, 2018, a 60 percent rating, but no higher, for residuals of prostate cancer is granted. Effective June 27, 2016, a total disability rating based on individual unemployability (TDIU) is granted. Effective June 27, 2016, entitlement to Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38 U.S.C., is granted. REMANDED A TDIU prior to June 27, 2016. Entitlement to DEA benefits prior to June 27, 2016.   FINDINGS OF FACT 1. Prior to June 27, 2016, the Veteran’s residuals of prostate cancer did not manifest by clinically identifiable symptoms that warrant a compensable rating. 2. From June 27, 2016 to October 18, 2018, the Veteran’s prostate cancer manifested by voiding dysfunction and/or urinary incontinence requiring the wearing of absorbent materials which must be changed more than four times per day. 3. Effective June 27, 2016, the Veteran’s service-connected disabilities have precluded him from securing or maintaining substantial gainful employment. 4. Effective June 27, 2016, the Veteran is found to have a total and permanent evaluation by reason of his service-connected disabilities for purposes of the grant of DEA benefits. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of prostate cancer for the period prior to June 27, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. From June 27, 2016 to October 18, 2018, the criteria for a 60 percent rating, but no higher, for residuals of prostate cancer are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, DC 7528. 3. Effective June 27, 2016, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 4. Effective June 27, 2016, the criteria for entitlement to DEA benefits under Chapter 35, Title 38 U.S.C., are met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to March 1971. The case is on appeal from February 2016 and August 2017 rating decisions. In a February 2019 decision, the Board granted a 40 percent rating for residuals of prostate cancer from June 27, 2016 to October 18, 2018. Additionally, the Board denied the issues of a compensable rating prior to June 27, 2016, a rating in excess of 40 percent from June 27, 2016 to October 18, 2018, and a TDIU and DEA benefits prior to November 21, 2016. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Order, the Court remanded the case in light of a November 2019 Joint Motion for Partial Remand (JMPR). Additional evidence has been associated with the Veteran’s claims file subsequent to the most recent supplemental statement of the case (SSOC) issued in November 2018. As the evidence is either cumulative or redundant with respect to the periods herein discussed, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its findings of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Legal Criteria 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. 38 C.F.R. § 4.1. The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, DC 7528. Under that DC, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. After six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, if there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. VA has no discretion to reduce or otherwise change a 100 percent disability rating during the six-month period following treatment for malignant neoplasms, and until a medical examination report supports such a change. Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). It is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date. Id. The phrase “the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure” refers to the cessation of treatment for the applicable malignant neoplasm of the genitourinary system. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent disability rating is warranted when dysfunction requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent disability rating is warranted when the dysfunction requires wearing absorbent materials which must be changed 2 to 4 times per day. A 60 percent disability rating is warranted when the dysfunction requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. As for urinary frequency, a 10 percent disability rating is warranted when daytime voiding intervals between 2 and 3 hours, or; awakening to void 2 times per night. A 20 percent disability rating is warranted when daytime voiding interval between 1 and 2 hours, or; awakening to void 3 to 4 times per night. A maximum 40 percent disability rating is warranted with daytime voiding intervals of less than an hour, or awakening to void 5or more times per night. Id. The regulation further provides alternate rating criteria for obstructive voiding. Nevertheless, as obstructive voiding is not a symptom reported at any time during the pendency of this appeal, the specific criteria is not applicable. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Background With respect to the increased rating claims for residuals of prostate cancer. the November 2019 JMPR states that the Board erred because it did not provide an adequate statement of reasons or bases concerning the claims for an initial compensable rating prior to June 27, 2016, and a rating in excess of 40 percent thereafter for residuals of prostate cancer, particularly when considering the Veteran’s November 2016 statements with respect to the severity of his disability. The November 2019 JMPR further noted that such evidence could have resulted in a higher rating pursuant to 38 C.F.R. § 4.115a. In light of the above, the Board will now proceed to readjudicate the claims on the merits.   1. An initial compensable rating for residuals of prostate cancer prior to June 27, 2016. By way of background, the Veteran submitted a claim to reopen a previously denied claim of service connection for residuals of prostate cancer on October 7, 2015. The RO granted service connection from that date and an earlier date has been previously denied by the Board. Hence, that is the beginning date for the rating period on appeal. VA treatment records show that in September 2015, the Veteran reported to his VA providers his concerns about a possible relapse of his prostate cancer. In an October 2015 progress note, the VA provider indicated that his mild elevation (<0.1 to 0.1 to 0.2) was still very low and that the Veteran was not experiencing any symptoms. In November 2015, a VA provider noted that the Veteran’s PSA had been undetectable at prior readings, but the two most recent readings (July 2014 and July 2015) had been up to 0.2, prompting the question of recurrence. Nonetheless, the physician noted that the Veteran was “clinically without symptoms” and that although his PSA had increased slightly, such observation was “less likely significant.” April 2016 lab results continued to show his PSA at low levels. The Veteran was afforded a VA examination in connection with the present claim in February 2016. The VA examiner indicated that the Veteran’s PSA had remained low (<0.2) and that as per the Veteran’s statements, “he has not needed a pad” for greater than 5 years. In sum, the examiner indicated that the Veteran’s prostate cancer was in remission and besides erectile dysfunction, there were no other signs of residual conditions and/or complications such as voiding dysfunction, recurrent symptomatic urinary tract/kidney infections or renal dysfunction. The examiner concluded that the Veteran was surveilled regularly and there was no evidence for the disease. Additional medical evidence of record for the period in question does not indicate nor suggest a worsening of prostate cancer, its residuals or manifestations of greater severity at any time during that time until October 25, 2016, when the Veteran reported the onset of urinary incontinence about three months earlier (approximately June 2016), and which will be discussed in the separate period addressed in this decision. As such, the competent evidence, both medical and lay, of record reflects that at least prior to June 27, 2016, the Veteran’s prostate cancer or its residuals were not symptomatic as the evidence does not show surgical, x-ray, antineoplastic, chemotherapy, or other therapeutic procedure. Additionally, for the period in question the evidence does not show reports of voiding or renal dysfunction. Moreover, this was confirmed by the Veteran’s own statements during a subsequent January 2017 VA examination by indicating that his condition was relatively stable and did not require any pads until his condition worsened approximately in July 2016. Thus, the Board finds that, for the period prior to June 27, 2016, the Veteran’s prostate cancer was asymptomatic and did not manifest by identifiable symptoms to warrant an initial compensable rating. As the preponderance of the evidence is against an initial compensable rating for prostate cancer, prior to June 27, 2016, the benefit-of-the-doubt rule does not apply, and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. A higher rating in excess of 40 percent for residuals of prostate cancer for the period between June 27, 2016 to October 18, 2018. At the outset, the Board notes that for the period between October 18, 2018 and January 7, 2020, the Veteran had been rated at the maximum 100 percent rate given his active treatment for his prostate cancer. Thereafter, the Veteran’s rating was decreased to 60 percent effective January 8, 2020, following the cessation of his therapeutic procedures pursuant to DC 7528. As these rating actions have not been contested, the Board will not interfere. Accordingly, the Board will focus on the Veteran’s contention and the November 2019 JMPR observations with respect to a higher rating in excess of 40 percent specifically for the period herein discussed. In October 2016, the Veteran reported urinary incontinence that had been going on for the last three months, described as incomplete bladder emptying, increased urinary frequency and constant urinary urgency. The Veteran reported a worsening of urinary incontinence following a nerve block procedure for his service-connected back disability. He also noted that he was not able to control his urine, was urinating every 1.5 hours, and was leaking without warning. See October 27, 2016 progress notes. In a November 2016 notice of disagreement (NOD), the Veteran indicated that for the past 5 months (June 2016), his urinary incontinence became so severe that it required the wear and change of absorbent materials more than 5 times a day, in addition to two to three showers a day, given the complete loss of control of his bladder function. It was also noted that the Veteran “can’t hardly do anything that he used to do.” In a November 2016 treatment progress note, the Veteran’s private attending physician indicated the Veteran has both stress and urge incontinence. However, the provider assessed that the bladder was negative, that the urethra was normal and that the Veteran’s symptoms seemed to be more overactive. Notwithstanding, it was also noted that the Veteran has significant spine osteoarthritis and radiculopathy which may play a role in his incontinence. See November 23, 2016 Sharp Rees-Stealy Medical Group outpatient records. A subsequent VA examination was afforded in January 2017. The Veteran stated that his urinary issues with frequency and leakage worsened around July 2017. The VA examiner noted that the Veteran was placed on medication for urinary incontinence control; however, still required to change pads “approximately 3-4 a day.” The VA examiner indicated that the Veteran’s voiding dysfunction that causes daytime voiding intervals between 1 to 2 hours and requires absorbent material which must be changed 2 to 4 times per day. The examiner did not identify obstructive symptoms nor urinary tract or kidney infection. During a June 2017 VA examination in connection with a claim of service connection for a psychiatric disorder, the Veteran reported he has to wake up every two hours during the night due to his urinary incontinence. Ultimately, in a June 2018 VA urology consult note, the VA urologist indicated that the Veteran wears from 1 to 5 pads daily. It was further noted that the Veteran leaks a few drops when he stands up and experiences a complete bladder emptying if he does not void on timed schedule at least every two hours. The VA physician also indicated that although multiple medications have been tried in the past, no benefits has been achieved. Upon consideration of the Veteran’s lay statements and additional medical evidence of record, the Board finds that from June 27, 2016 to October 18, 2018, a 60 percent rating is warranted. While the January 2017 VA examiner indicated that the Veteran voiding dysfunction required to change pads “approximately 3-4 a day,” the Board also notes that prior to his VA examination the Veteran had already indicated that he must change his absorbent material 5 times or more during the day, to include at least 2 to 3 showers a day given his uncontrolled incontinency. The Board finds these statements competent and credible. See 38 C.F.R. § 3.159; see also Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). Such statements appear to be supported by the June 2018 VA urologist who indicated that the Veteran must wear and change pads at least 5 times daily, that he leaks a few drops every time he stands up, and that the Veteran experiences a complete bladder emptying if not able to void on his timed schedule every 1 to 2 hours. In light of the above, the Board finds that the evidence has reached a level of equipoise as to whether the Veteran’s residuals of prostate cancer, for the period between June 27, 2016 and October 18, 2018, is of a severity supportive of a rating in excess of 40 percent. Accordingly, and particularly when all reasonable doubt is resolved in the Veteran’s favor, the Board finds that his disability picture more nearly approximated voiding dysfunction requiring the wearing of absorbent material which must be changed more than four times per day. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. This characterization corresponds to a 60 percent rating under 38 C.F.R. § 4.115a, which is the maximum rating for voiding dysfunction. Notwithstanding, a rating in excess of 60 percent is not warranted at any time during the period herein discussed as there is no evidence of renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, the required criteria for the next 80 percent rating under 38 C.F.R. § 4.115a. The Board has further considered the ratings for urinary frequency and obstructed voiding. Notwithstanding, the first does not surpass a 40 percent rating and the latter is no applicable to the facts of the present case. Moreover, the Veteran’s erectile dysfunction, which is also a residual of his prostate cancer, has been rated separately and special monthly compensation for the loss of use of the creative organ is currently in effect. In sum, the evidence is in favor of a 60 percent rating for residuals of prostate cancer. The preponderance of the evidence is against a rating in excess of 60 percent, and thus, there is no further doubt to be resolved with respect to a rating higher than 60 percent for residuals of prostate cancer. As such, for the period between June 27, 2016 to October 18, 2018, a 60 percent rating, but no higher, for residuals of prostate cancer is warranted. Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). Total Disability Ratings Legal criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In addition, 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. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Background The November 2019 JMPR stated that the Board erred as it failed to provide an adequate statement of reasons and bases for the denial of an extraschedular referral for TDIU under 38 C.F.R. § 4.16(b), failed to discuss appellant’s educational and occupational background in accordance with Van Hoose v. Brown, 4 Vet. App. 361, 364 (1993), and while the it found that appellant was able to maintain sedentary employment, it failed to address the definition of this term. See Withers v. Wilkie, 30 Vet. App. 139, 145-46 (2018). In addition, the November 2019 JMPR found that the issue of entitlement to DEA benefits prior to November 2016 is inextricable intertwined the TDIU claim. In light of the above, the Board will now proceed to readjudicate the claims on the merits. 3. A TDIU prior to November 21, 2016. Initially, the Board notes that a 60 percent rating is now in effect for the Veteran’s residuals of prostate cancer effective June 27, 2016. Thus, from June 27, 2016, the Veteran is service-connected for residuals of prostate cancer rated at 60 percent; degenerative arthritis of the lumbar spine rated at 20 percent; left lower extremity radiculopathy rated at 20 percent; and noncompensable scars secondary to lumbar spine disability and erectile dysfunction. The combined rating from June 27, 2016 is 70 percent. Accordingly, the criteria for a TDIU on a schedular basis is met from that date forward. See 38 C.F.R. § 4.16a. In a December 2016 VA Form 21-8940 (Application for Increased Compensation Based on Individual Unemployability), the Veteran reported last working full-time as a pilot in October 1992, when he retired early, after approximately 19 years of service, as he became unable to sit or stand more than 2 hours due to back issued, leg pain and numbness. In a subsequent March 2017 VA Form 21-8940, the Veteran added that the emotional and psychological effects as a result of his prostate cancer and residuals is another reason why he is now precluded from securing or maintaining gainful employment. As previously stated, a TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The Board has reviewed the evidence of record and for the reasons set forth below finds that from June 27, 2016, that Veteran has not only met the rating requirements set forth in 38 C.F.R. § 4.16(a) (a combined rating of 70 percent with at least one service-connected disability rated at 40 percent), but also that his service-connected lumbar spine disability, left lower extremity radiculopathy, and residuals of his prostate cancer with their respective associated symptoms have precluded him from securing or following substantially gainful employment. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). (In adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history). An April 1991 private medical opinion from Dr. S.A, indicates that since that time, it was quite clear to him that the Veteran was disabled for his normal work as a commercial pilot and will remain permanently disabled for that type of work because of his inability to take medication for his condition, which is chronic and will persist, and also because of his inability to sit for any lengthy period of time. It was further added that the Veteran’s lumbar spine disability was also causing totally incapacitating episodes for “normal recreation and work.” See April 4, 1991 Neurosurgical Medical Clinic report. In a lay statement received in February 2016, the Veteran indicated that a morphine pump had been implanted in October 2005. This is confirmed by an August 2009 VA progress note that shows that the Veteran has an implanted morphine pump for his lumbar spine disability and associated chronic pain. The Veteran was afforded a VA examination in March 2016. The VA examiner acknowledged that the Veteran continues to have significant pain symptoms, radiculopathy, limited range of motion, requires a morphine pump for pain control, wears a back brace regularly and experiences mild left foot drop. It was also noted that the Veteran is able to stand and sit for up to 30 minutes, can walk one quart (1/4) of a mile at a slow pace, and that his limitations of motion directly interferes with his dressing and picking up objects. The Veteran reported functional loss as he is not able to lift, bend, and needs a morphine pump for pain control. In conclusion, the VA examiner indicated that the Veteran is “unable to work given his limited standing, walking, lifting and bending. As previously noted, with respect to his residuals of prostate cancer, in October 2016, the Veteran reported urinary incontinence that had been going on for the last three months (approximately June 2016), described as incomplete bladder emptying, increased urinary frequency and constant urinary urgency. The Veteran reported a worsening of urinary incontinence following a nerve block procedure for his service-connected back disability. He also noted that he was not able to control his urine, was urinating every 1.5 hours, and was leaking without warning. See October 27, 2016 progress notes. Here, the Board notes the Veteran’s 19-year work experience appears to be limited to employment as a commercial pilot. There is no other indication in the record that the Veteran has any experience in, or the potential for, any other type of job, to include a non-physical one. The records further reflect that ever since 1991, his disabilities progressed and interfered with his occupational and recreational functioning to a greater degree, particularly due to his chronic pain, left lower extremity radiculopathy and associated symptoms, as these eventually turned into near-continuous and/or daily issues to eventually require an implanted morphine pump. Thereafter, the Veteran was diagnosed with prostate cancer and subsequent residuals that the evidence noticeable suggests interfering with his daily activities. In conclusion, the Board notes that the overall impact of the Veteran’s service-connected disabilities could reasonably result in poor focus and poor task completion in any type of work environment. According to Dr. S.A., ever since 1991 the Veteran’s lumbar spine disability was causing totally incapacitating episodes for “normal recreation and work.” Moreover, this conclusion seems to be supported by the March 2016 VA examiner which opined and concluded that the Veteran is unable to work by reason of his service-connected back disability and associated symptoms. Here, the Board finds that the private and VA examiner’s statements and opinions as to the effect of his lumbar spine disability and associated symptoms on his employability are sufficient and probative. Furthermore, the Board also notes that from June 2016, the onset of more severe residuals of prostate cancer, when considered along with his lumbar spine disability, suggests a complex medical picture non concomitant with employability. In sum, the issue of employability is not a medical issue but a legal one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, in light of the above, and after consideration of the Veteran’s individual circumstances, to include his education, training, and work history, the Board finds the combined severity of the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation as of June 27, 2016, the date the Veteran met the required schedular criteria under 38 C.F.R. § 4.16(a). This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Consequently, effective June 27, 2916, a TDIU on a schedular basis is warranted. 4. DEA benefits prior to November 21, 2016. For the purposes of educational assistance under 38 U.S.C.§ 3500 et seq., the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran’s death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. In this case, in its August 2017 rating decision, the RO established basic eligibility for Chapter 35 benefits as the Veteran was found to have a permanent and total disability evaluation by reason of his service-connected disabilities. As stated above, the Board has concluded the Veteran is entitled to a TDIU effective June 27, 2016. Accordingly, the Board finds that an effective date of June 27, 2016, for the award of basic eligibility for Chapter 35 DEA benefits is also warranted. REASONS FOR REMAND 1. A TDIU prior to June 27, 2016. The evidence reflects that the Veteran has been unemployed since October 1992, when he had to restored from his 19-year career as a pilot by reason of his service-connected lumbar spine disability, left lower extremity radiculopathy and their associated symptoms. The Board notes that while awards of service-connection for DDD of the lumbar spine with IVDS and left lower extremity radiculopathy have been in effect since February 3, 2016, prior to June 27, 2016, the Veteran did not meet the required criteria for a TDIU on a schedular basis. As such, consideration of whether an extraschedular TDIU is warranted prior to June 27, 2016, must be made pursuant to 38 C.F.R. § 4.16(b). While the Board does not have the authority to assign an extraschedular TDIU in the first instance, it can decide whether a claim should be referred to the Director, Compensation Service. See Wages v. McDonald, 27 Vet. App. 233 (2015); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As previously noted, in an April 1991 private medical opinion, Dr. S.A, indicated that it was quite clear to him that the Veteran was disabled for his normal work as a commercial pilot and will remain permanently disabled for that type of work because of his inability to take medication for his condition, which is chronic and will persist, and also because of his inability to sit for any lengthy period of time. Moreover, the private physician added that the Veteran’s lumbar spine disability was also causing totally incapacitating episodes for “normal recreation and work.” See April 4, 1991 Neurosurgical Medical Clinic report. The foregoing was supported by a March 2016 VA examiner who indicated that given that the Veteran continues to have significant pain symptoms, radiculopathy, limited range of motion and requires an implanted morphine pump for pain control, he is “unable to work [].” For the reasons set forth above, the Board finds that the claim should be submitted to the Director, Compensation Service, for extraschedular consideration for a TDIU for the period prior to June 27, 2016. 2. DEA benefits prior to June 27, 2016. Given that the issue of entitlement to DEA benefits under Chapter 35 is inextricably intertwined with the issue of a TDIU prior to June 27, 2016, and since the issue of a TDIU prior to June 27, 2016 has been referred to the Director, Compensation Service, for extraschedular consideration, the claim must be also remanded to be considered and adjudicated accordingly. The matters are REMANDED for the following action: Refer the issue of a TDIU prior to June 27, 2016, to the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b) and in compliance with the Reasons for Remand set forth above. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.