Citation Nr: 21003264 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-40 326 DATE: January 21, 2021 ORDER Entitlement to a separate evaluation of 20 percent for left foot pes cavus with hammertoe deformities, effective July 26, 2004, is granted. Entitlement to a separate evaluation of 20 percent for right foot pes cavus with hammertoe deformities, effective July 26, 2004, is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(l) due to loss of use of both feet, effective July 26, 2004, is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis, due to service-connected disabilities is remanded. FINDING OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, effective July 26, 2004, the symptomatology associated with his service-connected left and right foot pes cavus with hammertoe deformities was such that no effective function remained other than that which would be equally well served by amputation of the foot with the use of a suitable prosthetic appliance. CONCLUSIONS OF LAW 1. The criteria for two separate 20 percent evaluations for left and right foot loss of use under Diagnostic Code 5167, effective July 26, 2004, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.7, 4.30, 4.40, 4.63, 4.71a, Diagnostic Code 5110 (2018). 2. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(l) due to loss of use of both feet, effective July 26, 2004 have been met. 38 U.S.C. §§ 1114(l), 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to September 1968. This matter was previously before the Board of Veterans’ Appeals (Board) in August 2011 when the Board remanded the issue for an increased rating in excess of 20 percent for service-connected bilateral pes cavus with hammertoe deformities for a VA examination and dismissed the TDIU as the Veteran submitted correspondence that he wanted to withdraw this issue. In December 2013, the Board denied entitlement to a disability rating in excess of 20 percent for the service-connected bilateral pes cavus with hammertoe deformities. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court) in July 2014. By way of a Joint Motion for Remand (JMR), the parties agreed that the December 2013 Board decision should be vacated because the Board did not provide an adequate statement of reasons or bases to supports its decision for the denial. The matter came before the Board again in March 2015 and the Board remanded the issue of bilateral pes cavus with hammertoe deformities to provide the Veteran with an updated VA examination to address loss of use of his feet and to clarify whether he was claiming a TDIU. In May 2017, the Board denied entitlement to an evaluation in excess of 20 percent for bilateral pes cavus with hammer toe deficiencies and denied entitlement to a TDIU. The Veteran appealed this decision to the Court. In January 2018, the Court in a Joint Motion for Partial Remand (JMPR), vacated the May 2017 decision for an evaluation in excess of 20 percent for bilateral pes cavus with hammer toe deformities and entitlement to a TDIU. Most recently, the Board issued a decision in November 2019 that granted two separate 20 ratings for left and right foot pes cavus with hammertoe deformities and entitlement to SMC on account of loss of use of both feet, effective September 14, 2015. The Veteran appealed this decision to the Court as he disagreed with the effective date assigned for the grants. In a July 2020 JMPR, the Court vacated portions of the November 2019 Board decision that denied entitlement to a separate evaluation of 20 percent for left and right foot pes cavus with hammertoes prior to September 14, 2015 and entitlement to SMC due to loss of use of both feet, prior to September 14, 2015 and remanded the matters for additional adjudication. This matter was originally before the Board on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before a Veterans Law Judge (VLJ) in October 2010. A hearing transcript is included in the file. When that VLJ retired from employment with the Board, an August 2018 letter was sent requesting clarification whether the Veteran wanted a new hearing. The Veteran’s attorney responded in September 2018 that the Veteran did not want another hearing on this matter. 1. Entitlement to separate 20 percent evaluation for left and right foot pes cavus with hammertoe deformities The Veteran contends that he is entitled to an earlier effective date prior to September 14, 2015 for the grant of the 20 percent evaluations for his separate left and right foot disabilities. The Court stated in the July 2020 JMPR that the favorable determination in which the November 2019 Board decision granted separate 20 percent ratings for left and right foot bilateral pes cavus with hammertoe deformities would not be disturbed. As such, the Board must determine the effective date of such grant. After review of the record, the Board concludes that the Veteran’s foot disabilities are of the severity that equates to loss of use of the feet from July 26, 2004, the date of claim. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Specifically, for original claims for service connection, the effective date can be the day following separation from active service if the claim is received within one year after separation from service. Otherwise, the rule is the date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claims must identify the benefit sought. Thus, prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p). As noted above, the Veteran was granted two separate 20 percent evaluations for his left and right foot pes cavus with hammertoe deformities from September 14, 2015 under Diagnostic Code 5167 by way of the November 2019 Board decision. However, the Court found that the Board erred in its November 2019 decision when it failed to explain why evidence which predated the assigned effective date did not also warrant separate ratings. Therefore, the Board must determine when the Veteran’s left and right foot disabilities equated to loss of use of the foot. By way of history, the Veteran claimed service connection for foot disabilities on July 26, 2004. He was denied service connection by a June 2005 rating decision. The Veteran appealed the decision and was again denied service connection in a September 2007 rating decision. The RO determined that correspondence received in September 2006 was clear notice of the Veteran’s intent to continue to appeal the issues of service connection for bilateral pes cavus and bilateral hammer toes. He was subsequently granted service connection for his foot disabilities in an April 2008 rating decision with an effective date of July 26, 2004. The RO assigned a 20 percent evaluation for bilateral pes cavus with hammertoe deformities. He filed a claim for a TDIU in May 2008. An October 2008 rating decision denied entitlement to a TDIU and continued the 20 percent evaluation for his service-connected bilateral pes cavus with hammertoe deformities. Thereafter, the Veteran expressed disagreement with this decision and is the subject of this appeal. "Loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2)(i), 4.63. Examples under 38 C.F.R. § 3.350(a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. The responsibility for determining whether there is loss of use rests with the adjudicator; the Board may not ask a clinician to determine whether there is "loss of use." See VBA Live Manual M21-1, IV.ii.2.H.1.b. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the Court stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. Initially, with regard to loss of use of the feet, the Board acknowledges the following are not demonstrated by the evidence of record: extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent foot drop. See 38 C.F.R. § 3.350(a)(2), 4.63. However, these criteria are mere examples of what could serve as loss of use of the feet. They are not absolute or limiting. Turning to the medical evidence, the Veteran was examined by the VA in April 2005. The Veteran reported that he used Tramadol to relieve his foot symptoms, and it helped the pain, but associated with the decreased ability to elevate his toes. The examiner noted that the Veteran used insoles to help his right foot. There were functional limitations on standing and he was only able to stand for fifteen to thirty minutes. He also had functional limitations on walking and was only able to walk between one fourth of a mile but less than one mile. There was pain on motion, standing, and walking. The Veteran also had instability and falls because his toes do not touch the ground. He also had tenderness with standing, walking, and at rest. The Veteran also had limited motion, abnormal motion, swelling, redness, and stiffness. He also reported flare-ups with his feet, flaring with any activity. The Veteran’s balance was poor because of poor contact of the right foot. The toe movement of the right foot was painful and at toe off, the Veteran had a painful, audible snap emanating from the right. There was also abnormal gait that was antalgic with poor propulsion. The left toes were found to be abnormal and surgically ankylosed with several toes rotated. The Veteran was afforded a VA examination in February 2008. The Veteran reported symptoms in his left foot of pain (while standing, walking, and at rest), swelling (while standing, walking, and at rest), stiffness (while standing, walking, and at rest), weakness (while standing and walking), and lack of endurance (while standing and walking). In his right foot, he had symptoms of pain (while standing, walking, and at rest), swelling (while standing, walking, and at rest), and stiffness (while standing, walking, and at rest). He stated that he cannot walk as much and was unable to stand for more than a few minutes. He noted that his feet hurt, but he was able to walk a quarter of a mile. Upon examination of the left foot, there was non-weight-bearing with no pain; painful with weight bearing in the toes. The right foot showed painful motion, swelling, tenderness, and weakness. It was noted that there is hammering on all right toes with clawing of toes 3 and 4. The Veteran was examined again in September 2009. The VA examiner stated that the Veteran used a motorized wheelchair due to obesity and foot pain. Upon examination, the VA examiner indicated that there was evidence of swelling, tenderness, weakness, but no painful motion, instability or abnormal weight bearing of the left foot. There was extensor weakness of all toes of the left foot. The left foot has deformity and evidence of corrective surgery with loss of ability to extend toes and of fusion of all toes at the MTP joint. There was muscle atrophy of the foot, secondary to disuse. With respect to the right foot, there was evidence of abnormal weight bearing, but no evidence of painful motion, swelling, tenderness, instability or weakness. The examiner stated that all right toes are hammertoes with generalized atrophy secondary to disuse. In terms of his gait, without shoes, the Veteran exhibited inability to roll off onto the toes of the left foot resulting in moderate “foot slap” and was antalgic bilaterally. In April 2010, the Veteran was examined again for his foot condition. The VA examiner found that the Veteran had evidence of pain motion, tenderness, and weakness in his left foot. There was no evidence in his left foot of swelling, instability, or abnormal weight bearing. He did have fused toes. Findings of the right foot included painful motion, tenderness, and weakness. He did not have swelling, instability, or abnormal weight bearing. The Veteran’s gait was noted to be waddling with no roll-over or push off. At the September 2011 examination, the Veteran reported pain, stiffness, fatigability, weakness, and lack of endurance in both the left foot and right foot. He required corrective shoes and a wheelchair. The VA examiner stated that he has contracture of plantar fascia causing plantar flexion of the forefoot and forefoot inversion on non-weight-bearing. He has heel inversion with forefoot varus deformity due to contracture deformity. The Veteran also had intrinsic muscle atrophy due to pes cavus hammertoes and the examiner stated that this is because of the severe contracture of the digits and loss of purchase of all digits in stance. The Veteran has no purchase of digits in stance or during gait cycle of bilateral feet. The Veteran’s bilateral pes cavus and hammertoe deformity limits his mobility due to pain and decreased motion of the forefoot. He has severe digital contractures causing increased pressure on the metatarsals resulting in metatarsalgia. The lack of digital purchase causes unsteady gait and instability to toe off during the gait cycle. The Veteran has limited mobility and uses a power chair due to painful and unsteady gait. The September 2015 VA examination showed that the Veteran endorsed pain on non-weight-bearing, loss of balance, required constant use of a cane and motorized scooter, and suffered functional impairments such as an inability to walk or stand in excess of five minutes. However, the examiner checked a box to indicate that there was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation or prosthesis. The examiner’s rationale stated that “the condition, though severe, would not be equivalent to amputation as there is deformity, however not so marked as to have limited the ankle ROM nor shortened the forefoot to a degree equivalent to amputation.” The VA examiner noted that the Veteran has hammertoes of all ten toes with absent pulses in bilateral feet. The Veteran ambulated slowly to the examination. He has a scooter to get to the building as well as walks with a cane down the hallway with obvious chronic mild imbalance in gait. The VA examiner also stated that the Veteran can only stand for five minutes at a time and he can only walk approximately 50 yards before the pain and numbness are extreme. The VA examiner indicated that the loss of use is not equivalent to amputation as there is severe pes cavus with hammertoes bilaterally, however as addressed by loss of use definition, the condition, though severe, would not be equivalent to amputation as there is deformity[,] however not so marked as to have limited the ankle ROM nor shortened the forefoot to a degree equivalent to amputation. The Veteran still has poor dorsiflexion and functioning is present though painful. There was no presence of foot drop. There was less movement than normal, pain on movement, pain on weight-bearing, pain on non-weight-bearing, deformity, instability of station, disturbance of locomotion, and interference with standing on both feet. The VA examiner checked “no” when asked due to the Veteran’s foot condition, is there functional impairment of an extremity such that no effective function remains other than which would be equally well served by an amputation with prosthesis. The Veteran’s representative submitted an independent preliminary evaluation and report in August 2018 from Dr. N.N. He indicated he reviewed the entire claims file and photographs of the Veteran’s feet provided for his review. The examiner noted that in 1999, the Veteran had surgical scars on the left foot and was only able to stand for a maximum of two hours without pain. The Veteran also exhibited a limp on the right side with x-rays of the right foot showing a degenerative arthritic condition. He stated that over time, the Veteran continued to be treated with orthotic devices for both feet in order to maintain some level of ambulatory function and eventually, the orthotics were no longer of sufficient benefit in allowing him to stand of walk for any substantial period of time. By 2006, the Veteran was having difficulty with pain while performing the most minimal of ambulatory activities. In November 2006, it was noted that the Veteran’s orthotics did not fit his feet and required repetitive recasting and reformulations to obtain some level of comfort. The Veteran noted on multiple occasions that he was unable to stand for more than five to ten minutes without significant pain. In 2009, he was already using a motorized scooter due to his foot pain. The private physician stated that the September 2015 VA examiner was inaccurate in that the Veteran did not have objective evidence of marked deformity of one or both feet due to pronation or abduction and that there is no other lower extremity deformity other than pes planus which causes alteration of the weightbearing line. He stated that the Veteran appears to have manifestations of metatarsalgia, which is consistent with the development of plantar calluses. While this is related to his hammertoe deformities, he does have symptomatic metatarsalgia as well. He also has hallux valgus and abduction deformities of the foot. Both feet show evidence of deformity due to dorsiflexion of the great toe and lesser toes consistent with hammertoe deformities. There is also notable bilateral pes cavus and a bilateral valgus deformity of the hindfoot. All the subsequent symptoms of the above described deformities that the September 2015 VA examiner missed at least as likely as not cannot be parsed out from the symptoms of the Veteran’s service-connected pes planus. He stated that the Veteran’s bilateral foot condition is of such severity that it is functionally equivalent to an amputation. Dr. N.N. also found that the Veteran has related complications from diabetes mellitus, but that in his experience, patients with diabetic neuropathy are capable of walking in specially constructed shoes and are able to remain ambulatory without pain. Therefore, it is his opinion, more likely than not, that the reason the Veteran is not ambulatory is due to his service-connected foot deformities and not due to his diabetic neuropathy. The private physician also noted that this condition existed from at least July 2004. He stated that it is at least as likely as not, that the Veteran’s bilateral pes cavus with hammertoe deformities, without considerations of any non-service connected impairments, are of sufficient severity that there is no effective remaining function other than which would equally be served by amputation stump with use of a suitable prosthetic appliance. Based on his review of the medical records provided, he found that this condition has existed since 2004. Additionally, he opined that it is at least as likely as not that his service-connected orthopedic disabilities are of such severity that he has lost the use of his feet, from at least July 2004 to the present. In this regard, the Board finds that the evidence of record also supports that the condition existed from July 2004 in that the Veteran had only a minimal ability to walk short distances without falling over, he had pain in both of his feet when standing, walking, and sitting, he would lose his balance and needed a cane to stabilize himself, and later relied on a wheelchair and motorized scooter to get around on a daily basis. The Veteran was examined most recently in August 2019. The evidence continues to show that loss of use of the feet is warranted. The Veteran reported that he cannot stand for more than five minutes and cannot walk for more than two to four minutes at a time. When walking, he needs to use a cane. He also uses a motorized scooter to get around. The VA examiner noted that the foot condition chronically compromises weight bearing. He also indicated that due to the Veteran’s foot condition, there is functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prothesis as the Veteran has significant right foot deformity of pes cavus, metatarsalgia, painful callosity, hammertoes, hallux rigidus, hindfoot valgus causing chronic pain and significant limitation of mobility and significant left foot deformity with pes cavus, metatarsalgia, hallux rigidus, and post-surgical toes limitation of motion causing chronic pain and limitation of mobility. The VA examiner stated that the Veteran has effectively near total loss of use of both feet and he has little to no effective function of both feet. He had a preexisting congenital bilateral pes cavus prior to entering the military and over the years the condition worsened partly due to aging and significant obesity, which is a nonservice-connected disability. He stated that it is highly unlikely that his short period of service in 1968 alone could have resulted in his significant bilateral foot pathology. However, in providing his opinion, the VA examiner did not use the correct legal standard. Subsequently, the VA requested clarification from another VA examiner of the above medical opinion in August 2019. Based on the review of the records, the VA examiner stated that the Veteran has bilateral feet pes cavus, hammertoes, and prominent degenerative changes. He has additional multiple co-morbidities that affect the feet such as bilateral peripheral neuropathy, bilateral knee conditions and peripheral vascular disease. She opined that it is at least as likely as not that a combination of all these co-morbidities have contributed to the need of a cane and motorized scooter and it is not possible to accurately adjudicate a specific disease to the need of assistive devices for locomotion, in view of the multiple co-morbidities. However, she stated that it is at least as likely as not that the need of a motorized scooter and inability to walk for long periods of time is mainly due to the severe feet conditions mostly, with the added co-morbidities playing a factor as well. Furthermore, the VA examiner stated that it is less likely than not that the Veteran would have been equally well served by bilateral amputation stumps and suitable prosthetics. There is no evidence of incurred bilateral feet gangrene/necrosis that would require amputation. The Veteran has been assessed to have pain due to toe joints/feet degenerative disease in addition to peripheral neuropathy, feet vascular calcifications, and pedal edema. She stated that the Veteran is able to stand with assistive devices and pain control medications. However, it appears here that the VA examiner did not understand the meaning of whether the Veteran would have been equally well served by bilateral amputation stumps and suitable prosthetics and has taken a literal interpretation of the question. Based on the findings above and assigning great probative value to the August 2018 independent evaluation from Dr. N.N., the Board finds that the separate 20 percent evaluation for the Veteran’s left and right pes cavus with hammertoe deformities is warranted from the date of claim, July 26, 2004. In assigning high probative value to this examiner's opinion, the Board notes that the examiner reviewed the records, was familiar with the Veteran’s history of foot problems, and reviewed photographs of his feet. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Indeed, the examiner provided an exhaustive recitation of the record and fully supported his conclusions with specific citation to the record. In reaching this decision, the Board notes that the question involved in a loss of use analysis is whether there is any remaining function of the legs and feet that is more than would be provided by a suitable prosthetic device. See Tucker, 11 Vet. App. 369. When viewed from this perspective, the Board finds that the Veteran's nearly constant use of a cane and minimal ability to walk short distances due to his service-connected bilateral foot disability is no better than what would be experienced with suitable prosthetics. The Veteran endorsed pain on non-weight-bearing, loss of balance, and suffered functional impairments such as an inability to walk or stand in excess of five minutes. It is important to note the Court recently emphasized that loss of use under § 3.350(a)(2)(i) contemplates "balance and propulsion" equivalent to that provided by a prosthetic devise. The Court added that loss of use of the feet is not limited to those veterans who have "no" remaining effective functioning of the feet. See Jensen v. Shulkin, No. 15-4788 (U.S. Vet. App. Sept.12, 2017). Accordingly, resolving doubt in the Veteran's favor, the Board finds that the combined effects of the Veteran's service-connected left and right foot disabilities have resulted in the equivalent of permanent loss of use of both feet, effective July 26, 2004. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to SMC pursuant to 38 U.S.C. § 1114(l) due to loss of use of both feet The November 2019 Board decision also granted SMC due to loss of use of both feet from September 14, 2015. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. § 3.350, 3.352; see also VA Gen. Coun. Prec. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C.§ 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), and (o). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. SMC on a higher level under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. As the Board has found that the Veteran has met this criterion on July 26, 2004, he is entitled to SMC on account of loss of use of the feet under 38 U.S.C. § 1114(l) from that date. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 1. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU as he cannot secure or follow substantially gainful occupation due to his service-connected foot disabilities. The Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability in May 2008. In October 2010, he withdrew the issue of a TDIU, and the Board acknowledged the withdrawal in the August 2011 Board decision. Subsequently, in May 2015, the Veteran submitted another VA Form 21-8940 for entitlement to a TDIU. In a February 2016 rating decision, the RO denied entitlement to a TDIU as the evidence of record did not show that the service-connected pes cavus with hammertoes and residual scarring prevented the Veteran from maintaining gainful employment. Additionally, the RO found that there was no unusual factor of disability rending the Veteran unable to secure or follow substantially gainful occupation and therefore, the Veteran’s claim was not submitted for extra schedular consideration to the Director of the Compensation and Pension Service. As the Veteran does not meet the schedular requirements for a TDIU, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities for purposes of an extraschedular TDIU evaluation under 38 C.F.R. § 4.16(b). If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board upon receipt of that determination is not bound to accept it and may resolve the question of extraschedular entitlement of its own accord. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (the findings of the Director of Compensation Service on extraschedular consideration are not evidence, but rather a decision of the AOJ reviewed de novo by the Board). The Board does not currently have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996); Cf. 66 Fed. Reg. 49, 886 (Oct. 1, 2001) (final rule proposal to authorize the Board to assign an extraschedular rating). It may, however, determine that a particular case warrants referral to the Director of Compensation for extraschedular consideration under 38 C.F.R. § 4.16(b). Therefore, the Board must remand the claim for entitlement to a TDIU for referral to the Director, Compensation Service, for extraschedular consideration and then adjudication under 38 C.F.R. § 4.16(b) by the RO. The matters are REMANDED for the following action: 1. Obtain VA treatment records from June 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. The RO should undertake any additional development deemed warranted to ascertain the occupational impact of the Veteran's service-connected disabilities. Thereafter, unless the RO finds that a fully favorable decision can be rendered, refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of whether TDIU on an extraschedular basis is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.