Citation Nr: 21001409 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-65 605 DATE: January 8, 2021 ORDER Entitlement to an evaluation in excess of 20 percent disabling for right ankle, post traumatic degenerative arthritis, is denied. Entitlement to special monthly compensation (SMC) based on loss of use of the right foot is denied. Entitlement to a finding of totally disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACTS 1. The Veteran’s right ankle disability is manifested as marked pain and limited motion. 2. The schedular criteria fully contemplate manifestations and the Veteran’s complaints with regard to his right ankle, post traumatic degenerative arthritis; extraschedular evaluation is not warranted. 3. Loss of use of the right foot, such that the Veteran would be equally well served in balance or propulsion by amputation with prosthesis, is not shown. 3. The Veteran’s service-connected disabilities preclude the Veteran from securing or following a substantial gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent disabling for right ankle, post-traumatic degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. The criteria for SMC based on loss of use of the right foot are not met. 38 U.S.C. §§ 1114, 1155, 5107; 38 C.F.R. §§ 3.350, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59. 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1967 to March 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and his wife testified at a September 2019 hearing held before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing is associated with the claims file. In December 2019, the Board remanded the issue of entitlement to an increased evaluation for right ankle post traumatic degenerative arthritis for additional development. A VA ankle conditions examination was completed in December 2019, and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At his examination, the Veteran reported that he was unable to stand for the long period of time needed to complete job duties. Accordingly, the issue of entitlement to TDIU due to service-connected disabilities has been raised by the record during the course of this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Similarly, the file raises allegations of loss of use of the foot, due to the limitation of motion in the ankle. Specifically, it is argued that the Veteran has lost functional locomotion (propulsion). Accordingly, a claim of entitlement to SMC for loss of use must be inferred. Akles v. Derwinski, 1 Vet. App 118 (1991). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The duty to notify and assist was satisfied by notices included in the Fully Developed Claim (VA Form 21-526EZ) acknowledged by the Veteran in his November 2014 claim. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran has contended that his service-connected right ankle disability warrants an evaluation in excess of 20 percent disabling. The Veteran is currently rated under Diagnostic Code 5010-5271. This means that while the arthritic condition under Code 5010 is service connected, the assigned rating applies the joint specific criteria of Code 5271. This Code provides the criteria for rating limitation of motion of the ankle. “Moderate” limitation of motion of the ankle warrants a 10 percent evaluation, while “marked” limitation warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The words “moderate” and “marked” as used in various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The standard ranges of motion of the ankle are zero to 45 degrees ankle plantar flexion and zero to 20 degrees ankle dorsiflexion. 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In July 2012, the Veteran was afforded a VA ankle conditions examination. The examiners right ankle condition was described as having “progressively deteriorated” since the time of injury, such that he now must wear an “Arizona type brace” for ambulation, occasionally requiring a cane. His gait was described as antalgic. The Veteran reported flare-ups, describing such as occurring “after prolonged ambulation and improved by rest.” Upon range of motion (ROM) testing, plantar flexion was found to end at 25 degrees, with painful motion. Dorsiflexion was found to end at 10 degrees, with painful motion. The Veteran was found capable of performing repetitive-use testing with three repetitions, resulting in the same results as above. No additional limitation in ROM was identified following repetitive use, but the Veteran was found to demonstrate functional loss and/or functional impairment of the ankle following repetitive use, with excess fatigability, pain on movement, deformity, disturbance of locomotion, and interference with sitting, standing, and weight-bearing identified. The Veteran displayed localized tenderness or pain on palpation of joints/soft tissue and showed muscle strength of 5/5 for both plantar flexion and dorsiflexion. No laxity was identified, and the Veteran did not evidence ankylosis of the ankle, subtalar, and/or tarsal joint. The Veteran was not found to have or have ever had “shin splints,” stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). Regarding assistive devices, the Veteran was found to occasionally use the brace and cane. Imaging studies of the ankle have been performed and confirm arthritis. Regarding functional impact, the examiner found that the Veterans condition would impact physical employment. The Veteran was afforded another VA ankle conditions examination in July 2015. The condition was described as a constant daily pain aggravated by standing, walking, and rising from a seated position. The Veteran was found to have “severe” post traumatic degenerative arthritis and was becoming more limited in his ability to walk more than half a mile, despite wearing special shoes for support as well as a cane for daily use. His gait was described as antalgic. The Veteran reported flare-ups, which he described as occurring daily, triggered by repetitive use or prolonged use with a loss of function due to pain. Upon testing, range of motion measured as 0 to 20 degrees on plantar flexion and 0 to 10 degrees on dorsiflexion. This range of motion itself was found to contribute to functional loss by causing reduced mobility. The pain noted on both dorsiflexion and plantar flexion was found to cause functional loss. Evidence of pain was noted on weight bearing. Objective evidence of localized tenderness over the lateral malleolus, as well as objective evidence of crepitus, were noted. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion following repetition. The examiner noted that the Veteran was not examined immediately after repetitive use over time or during a flare-up, and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during a flare-up. The examiner found that it would be speculative to provide an accurate estimation of range of motion following a flare-up or repetitive use over time, since the Veteran was not having a flare-up at the time of examination. The examiner stated that he was unable to provide this information based on a hypothetical situation. The Veteran identified additional factors contributing to the Veteran’s disability, identified as less movement than normal due to ankylosis, adhesions, etc., swelling, deformity, disturbance of locomotion, interference with sitting, and interference with standing. Notably, although the examiner identified ankylosis here as a symptom, in a different part of the examination it was specifically noted that there was no ankylosis of the right ankle. The Veteran’s muscle strength was identified as 4/5 strength in both plantar flexion and dorsiflexion. While a reduction in muscle strength was noted, muscle atrophy was not identified. Ankle instability or dislocation was not suspected or identified. The examiner noted that the Veteran does not have and has never had “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis), talus (astragalus), or talectomy (astragalectomy). Regarding assistive devices, the examiner noted that the Veteran regularly uses a cane and regularly uses an “Arizona shoe.” Imaging was found to confirm the arthritis diagnosis. Regarding functional impact, the examiner stated that the Veteran’s condition would prevent any job requiring prolonged standing or ambulation. In September 2019, the Veteran testified regarding the current severity of his right ankle. He reported that his ankle is consistently swelling, constantly in pain, and that he must wear a boot and prosthetic shoes in order to keep the pain down, particularly when he is working outdoors on his yard. With the boot, he can complete 2 hours of yardwork. He reported that when he is getting up in the morning he can barely walk. He indicated that on some occasions he cannot wear the boot, such as to church, and that at these times he uses his cane. He reported that at times his ankle will give out, and he has to catch himself from falling. He later clarified that although the boot does not ease his pain, it assists him in walking. Rather, he uses pain pills to reduce pain and swelling at night at times in order to assist in sleeping. He reported that his pain eases by itself once he lies down. He further reported some achiness and throbbing of the ankle, and that it is sensitive to the touch at times. With the boot, the Veteran reported being capable of walking approximately 30 minutes at a time. He stated that if he’s standing for five, ten minutes at a time he must transfer weight to his left foot. The Veteran’s wife testified that he used to be able to take walks but was no longer capable of doing so. She reported that one evening, around midnight, he was completely unable to get around, and that there was a period of roughly two months when he could hardly step on the ankle. The Veteran reported that when using his brace, he is still able to move his ankle up and down a little bit. The Veteran was most recently afforded an additional VA ankle conditions examination in December 2019. The Veteran has contended that his condition has worsened, stating that he has pain in the medial and middle part of his ankle. He reported needing to wear a brace to “deal” with pain often, approximately 3 to 4 times a week, although he maintains that he still experiences a lot of pain despite the brace. He reported that his activities of daily life are more limited. The Veteran did not report flare-ups on this examination. He described his functional loss or functional impairment as including an inability to walk for long periods of time, go up and down steps, and stand for a long period, as well as walking with a limp. Upon ROM testing, the Veteran demonstrated dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 35 degrees. This range of motion itself was not found to contribute to the Veteran’s functional loss and the examiner found that no pain was noted on this examination. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was identified, with the Veteran describing the medial aspect and middle dorsal aspect of the right ankle as “sensitive,” with mild severity. This was found directly related to the Veteran’s post traumatic degenerative arthritis. There was evidence of pain with weight bearing as well as objective evidence of crepitus. The Veteran was found capable of performing repetitive-use testing with at least three repetitions, and no additional loss of function or range of motion was noted after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examiner determined that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted, however, that pain significantly limits functional ability with repeated use over a period of time, estimating such loss as resulting in 0 to 10 degrees of dorsiflexion and 0 to 20 degrees of plantar flexion. The examination was not conducted during a flare-up, and the examiner determined that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner further concluded that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability with flare-ups, and that such could not be described in terms of range of motion on the basis that the Veteran denied experiencing flare-ups. On muscle strength testing, the Veteran was found to have 5/5 strength in both plantar flexion and dorsiflexion, with no reduction in muscle strength identified. No muscle atrophy was noted either. Ankle instability or dislocation was not identified, and the Veteran was not found to have or at any time had “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy. The Veteran was not found to have undergone any surgical procedures. Regarding assistive devices, the Veteran reported regular use of a brace and occasional use of a cane, specifically for the service-connected disability. Imaging studies confirming arthritis diagnosis were noted. Notably, the Veteran was found to have a 0.5 by 0.5-centimeter scar on the medial aspect of his right ankle. He was awarded service connection for this scar in an August 2020 rating decision, effective May 6, 2011, the same date for which he has been awarded service-connection for the right ankle post traumatic degenerative arthritis. Regarding functional impact, the examiner indicated that the Veteran’s right ankle rendered him unable to walk for a long period of time due to pain in the right ankle, and reported an inability to stand for the long period of time needed in order complete his job duties. It was noted that the Veteran is currently retired, but previously worked in maintenance for the city. The Veteran was found not to have any objective evidence of pain on passive range of motion testing, or when the joint is used in non-weight bearing. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s right ankle. The Veteran is currently in receipt of a 20 percent rating under Code 5271. This is the maximum schedular rating available. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The Board has also considered other ankle rating codes under 38 C.F.R. § 4.71a and finds that a compensable rating under any of them is not warranted. The Veteran does not have ankylosis of his subastragalar or tarsal joint necessary for a compensable rating under Code 5272. He does not have malunion of the os calcis or astragalus necessary for a compensable rating under Code 5273, and he has not had an astragalectomy necessary for a compensable rating under Code 5274. A rating under Code 5271, for ankle limitation of motion, cannot be assigned at the same time as a rating for ankylosis under Code 5270. To do so would be pyramiding, in violation of 38 C.F.R. § 4.14, as both are rated based on limitation of motion of the ankle. If ankylosis was identified, the Veteran’s right ankle could be considered under Diagnostic Code 5270 rather than 5271. However, the Veteran has not evidenced ankylosis during the period on appeal. As such, this Code is not applicable. In an October 2020 Informal Hearing Presentation (IHP), the examiners prior representative raised the contention that extraschedular consideration is warranted. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the Board finds that the schedular criteria do indeed fully contemplate the Veteran’s level of disability and symptomatology. He complains of fucntional impairment due, essentially, to pain and impaired motion. These are the exact factors on which his current rating is assigned, particularly in light of the application of the DeLuca factors discussed above to establish his actual degree of functional impairment. He does not report any manifestations outside such factors, and simply argues as to severity. Accordingly, the Veteran’s right ankle is properly contemplated under the schedular criteria. The rating schedule is adequate and referral for extraschedular consideration is not needed under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). SMC The Veteran alleges, through his then-representative, that his right ankle disability has resulted in loss of use of the right foot, in that it has resulted in such functional impairment as to preclude locomotion. As is noted above, such allegation requires inference of an AMC claim. Akles v. Derwinski, 1 Vet. App 118 (1991). Statute and regulations provide that where loss of use of a foot is demonstrated, a Veteran is entitled to payment of additional compensation benefits, above the amount called for in the schedule, as a nod to the additional hardships presented, beyond impaired earning capacity, in daily life. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Loss of use of a foot may be shown when in three ways. Complete ankylosis of two or more major joints in an extremity, shortening of the lower extremity by 3.5 inches or more, or complete paralysis causing footdrop with accompanying organic changes qualify as loss of use. None such are shown here. Additionally, loss of use of the foot is found when the actual remaining function of the foot could be accomplished equally well by amputation and use of appropriate prosthesis. The function of the foot is considered to be “balance and propulsion, etc.” 38 C.F.R. § 4.63. As is discussed above, the Veteran’s limited range of motion in the ankle is appropriately characterized as “marked.” At worst, ROM testing shows plantar flexion at 20 degrees, a little less than half of full flexion, and dorsiflexion at 10 degrees, exactly half of full flexion. Moreover, he has full control over such. The record supports a finding that the Veteran still maintains functional use of his ankle. Although the Veteran has difficulty with movement and consistent pain, contemplated under the schedular evaluation, he remains capable of ambulation with the aid of his boot and cane. Given the degree of motion and control he maintains, he would be less well-served by a prosthesis. Entitlement to SMC based on loss of use of the right foot, is not warranted. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Marginal employment or employment in a protected environment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Basic eligibility for TDIU is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. The Veteran is service connected for Post-Traumatic Stress Disorder (PTSD), rated 50 percent disabling from April 7, 2009; coronary artery disease status post coronary artery bypass graft and percutaneous coronary intervention rated 10 percent from October 20, 2008, 100 percent from November 12, 2008, 10 percent from January 1, 2009, and 30 percent from November 25, 2014; diabetic nephropathy with hypertension associated with diabetes mellitus type II (with erectile dysfunction) rated noncompensable from May 26, 2011 and 30 percent from November 25, 2014; right ankle, post traumatic degenerative arthritis rated 20 percent disabling from May 6, 2011; tinnitus, rated 10 percent disabling from April 7, 2009; diabetes mellitus type II rated 10 percent disabling from May 26, 2011. The Veteran is also service connected for scar, status post coronary artery bypass graft associated with coronary artery disease status post coronary artery bypass graft and percutaneous coronary intervention, and scar, right ankle associated with right ankle, post traumatic degenerative arthritis, both rated noncompensable. Therefore, the Veteran initially met schedular criteria for TDIU effective May 6, 2011, with a combined rating of 70 percent disabling and a single disability rated at least 40 percent disabling. This covers the entirety of the current appeal period. In November 2014, the Veteran completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran reported that he last worked full-time in 2007 and that he became too disabled to work in 2008. He reported that he last worked full-time in city maintenance from March 2005 to November 2006. He has completed a high school education and reported that he has not completed any further education or training since becoming too disabled to work. In the application, the Veteran reported that he had left his job because of his heart disease, diabetes, and inability to walk for extended periods because of his ankle. In employment information provided by the Veteran’s former employer, it was clarified that the Veteran’s term of employment was from November 6, 2000 to January 7, 2005. It was confirmed that the Veteran was employed full-time as a maintenance worker during this time. The reason for termination of employment was identified merely as “termination.” The Board finds that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. As noted above, the examiner found that the Veteran’s right ankle would preclude him from employment requiring prolonged standing or ambulation. In conjunction with the Veteran’s July 2015 VA heart conditions examination, it was noted that the Veteran’s heart conditions impact his ability to work, described as physical limitations with prolonged walking for more than 15 minutes and prolonged standing for more than 15 minutes. In an August 2015 VA PTSD examination, it was specifically stated that the Veteran’s mental health symptoms do not appear to be impacting his ability to gain and maintain substantially gainful employment in any significant manner. However, it was also noted in this examination that the Veteran had difficulty in establishing and maintaining effective work and social relationships. Additionally, during this examination, the Veteran reported that prior to his employment with the city, he had difficulty maintaining employment and was fired from many positions between the 1970’s to the 1990’s. While VA examiners did not find that the Veteran's multiple service-connected disabilities rendered him totally occupationally and socially disabled, these examiners did not consider the effects and symptoms of the Veteran's combined service-connected disabilities. The Veteran retains certain vocational and occupational skills and is fully capable of completing some physical tasks normally associated with employment. However, the Veteran is precluded from employment requiring prolonged physical activity due to both his right ankle and his heart condition. Additionally, his PTSD renders it difficult for him to establish and maintain effective work relationships. Given the Veteran’s work history, education, and the nature of his service-connected disabilities, an award of TDIU is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.