Citation Nr: 21064132 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-15 217 DATE: October 19, 2021 ORDER Entitlement to an extension of a temporary total evaluation to March 1, 2017, based on need for convalescence following surgery associated with service-connected lumbar spine disability on August 11, 2016, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection for tinnitus is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from October 2, 2015, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a neck disability, claimed as C6-C7 degenerative disc disease, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a right ankle disability, is remanded. Entitlement to an extension of a temporary total evaluation beyond February 11, 2017, due to convalescence for service-connected lumbar spine disability is remanded. Entitlement to a TDIU from September 22, 2014 to October 1, 2015 is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine surgery performed on August 11, 2016, resulted in severe postoperative residuals requiring convalescence for a period of at least six months. 2. The evidence is at least evenly balanced as to whether the Veteran's current tinnitus is related to in-service acoustic trauma. 3. From October 2, 2015, the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for assignment of a temporary total evaluation to March 1, 2017, based on severe postoperative residuals requiring convalescence following surgery for service-connected lumbar spine disability on August 11, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.30. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. From October 2, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy in July 1979 and in the U.S. Army from March 1981 to April 1989. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the matters for further evidentiary development. While in remand status, in an October 2019 rating decision, the RO granted entitlement to a TDIU effective June 5, 2019. Given that the issue of TDIU was also on appeal as part and parcel of the claim for a higher initial rating for lumbar spine disability, and the appeal period for that claim began on September 22, 2014, the date of claim and effective date of the grant of service connection, the grant of TDIU effective June 5, 2019 was not a full grant of the benefit sought and the issue of entitlement to a TDIU prior to June 5, 2019 remains on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the Veteran's notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). In an October 2020 rating decision, the RO granted entitlement to service connection for major depressive disorder and granted a 50 percent rating effective October 19, 2017. The grant of service connection for major depressive disorder constitutes a full award of the benefits sought on appeal with respect to the issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of downstream elements such as the disability rating or effective date assigned). The record currently available to the Board contains no indication that the Veteran initiated an appeal with the initial rating or effective date assigned for major depressive disorder. Thus, the matter is not in appellate status. 1. Extension of Temporary Total Rating Pursuant to 38 C.F.R. § 4.30 The Veteran contends that an extension of the temporary total rating based upon convalescence for his lumbar spine disability is warranted from August 11, 2016 through August 11, 2017. A temporary total rating for convalescence is assigned from the date of hospital admission and continues for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). Temporary total ratings may be terminated without complying with the notice and other procedural actions required by 38 C.F.R. § 3.105 (e). An extension of 1, 2, or 3 months beyond the initial 3 months may be granted pursuant to 38 C.F.R. § 4.30 (a)(1),(2), or (3), and extensions of one or more months up to 6 months beyond the initial 6 months period may be made, upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b)(1), (2). The Board notes that the Veteran has been awarded a temporary total rating for convalescence as a result of lumbar spine surgery under 38 C.F.R. § 4.30 from August 11, 2016 to October 1, 2016. In August 2016, the Veteran underwent lumbar spinal fusion surgery. He was admitted on August 11, 2016 and discharged on August 13, 2016. A June 2017 VA examination report indicates Veteran's had lumbar surgery by private physician J.J. with the following procedures: revision of laminectomy and facetectomy, placement of rod devices; use of autograft and allograft substitute. After surgery the Veteran developed constant loss of sensation in left and right feet. He participated in physical therapy (PT) and attempts exercise (walking for brief periods) as tolerated. The Veteran had limited walking, for example, from the car to the house, and could not stand for over five to 10 minutes without pain. The Veteran needed help with putting shoes on and had to do the dishes on his knees. In March 2017 and August 2017, VA received a letter from private physician J.J. indicating that the Veteran was seen on August 1, 2016, and lumbar fusion surgery was performed, which is directly related to his service-connected arthritis of the lumbar spine. Physician J.J. reported that the Veteran's convalescent period is from August 11, 2016 to August 11, 2017. In a September 2020 VA addendum opinion, the clinician opined that the length of period of convalescence is not documented in the medical record, and the medical record is silent for the when postoperative residual symptoms manifested after surgery, only noted in VA record. The clinician noted that the period these residual manifests and, over what period of time is not noted in the record only that they did occur. The examiner further noted that as to whether at least one major joint was immobilized by a cast, that this information is unknown but was reported by the Veteran as being a significant period of time. The clinician indicated that an immobilized cast has no bearing on this case and is not noted in the medical record. The clinician stated the Veteran's obesity has more impact on his immobility as it is difficult for him to bear the weight with and without movement, and this fact is well documented in medical literature. The clinician noted that the Veteran's obesity is due his consumption of calories in excess of his metabolic needs. In this case, the Board finds that the September 2020 VA opinion is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the VA clinician concluded that the length of period of convalescence is not documented in the record. However, the evidence of record includes a letter from private physician J.J. indicating that the Veteran's convalescent period for lumbar fusion surgery is from August 11, 2016 to August 11, 2017. Additionally, the June 2017 VA examination report shows that after surgery the Veteran developed constant loss of sensation in left and right feet. He participated in PT, had limited walking, and could not stand for over five to 10 minutes without pain. The Veteran needed help with putting shoes and had to do the dishes on his knees. Moreover, the clinician failed to consider the Veteran's competent and credible statements that he had one major joint immobilized by a cast for a significant period of time. In sum, the Veteran filed a September 2016 claim for a temporary total rating pursuant to 38 C.F.R. § 4.30 based on his lumbar fusion surgery convalescence. In November 2016, the RO granted a temporary total rating from August 11, 2016, the date of the surgery, to September 30, 2016, a period of approximately five weeks. In April 2017, the Veteran sought an extension of the temporary total rating. He also filed a notice of disagreement in May 2017, which was within one year of the November 2016 rating decision, which granted a temporary total rating but not for the maximum allowable period. The RO denied the request for an extension of the temporary total rating in August 2017. However, because the evidence is at least evenly balanced as to whether the Veteran had severe postoperative residuals through August 11, 2017, warranting an extension of three months in addition to three months from the from the first day of the month following hospital discharge. As the Veteran was discharged from the hospital in August 2016, he is entitled to a temporary total rating from September 1, 2016 to March 1, 2017. Although the Veteran seeks a temporary total rating through August 11, 2017, as noted below extensions beyond the initial 6 months period may only be made on approval of the Veterans Service Center Manager and such approval has not yet been given in this case or addressed in the first instance by the Veterans Service Center Manager. Based on the above, the Board finds that the evidence is in relative equipoise as to whether an extension is warranted. Therefore, resolving all reasonable doubt in favor of the Veteran, an extension of convalescence for the period until March 1, 2017 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 2. Tinnitus The Veteran contends that his tinnitus is related to military noise exposure. In an alternative theory, he contends that tinnitus is secondary to service-connected bilateral hearing loss. The record on appeal reflects a diagnosis of tinnitus. Specifically, a March 2017 private treatment record shows a diagnosis of bilateral tinnitus. Thus, the current disability requirement has been met. The evidence of record also supports a finding that there was in-service noise exposure. Service treatment records (STRs) are negative of treatment or findings for tinnitus. At his March 2017 VA examination, the Veteran reported noise exposure from tanks, artillery, gunfire, helicopters, and aircraft. The Veteran's DD Form 214 shows his military occupational specialty was armor crewman. The Board finds the Veteran's statements credible. Therefore, in-service noise exposure is established. In a March 2017 VA examination report, the examiner opined that the Veteran's tinnitus is less likely than not caused by or the result of military noise exposure. The examiner's rationale was tinnitus is a subjective complaint and no objective measure exists to verify the presence or absence of tinnitus. The etiology of tinnitus cannot be determined using current clinical technologies. Etiology is typically inferred by patient history and a review of medical records. The examiner noted that review of the Veteran's C-file and service medical records revealed no record of complaint or treatment for tinnitus. The Veteran reported the onset of tinnitus occurred in five years ago, which was 20 years after his discharge from the service. It is widely accepted that noise-induced tinnitus occurs at the time of the noise exposure and does not develop years later. Additionally, per the Institute of Medicine (2006) "as the interval between a noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases." In an April 2017 statement, the Veteran asserted that his bilateral ringing in the ears started when he was a tanker in the military. In a November 2019 VA addendum opinion, the examiner opined that hearing loss and tinnitus often co-exist, and in many cases, they may have similar causes (e.g. noise exposure). In this case, although the March 2017 VA examiner rendered the opinion that the Veteran's current tinnitus disability was not related to in-service noise exposure, such an opinion is of no probative value, as it was based on the absence of in-service evidence of tinnitus. 38 C.F.R. § 3.303(d) (service connection warranted for a disease first diagnosed after service); Cf. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, the VA examiner failed to consider the Veteran's lay statements, to include his assertion of tinnitus symptoms in and since military service. For these reasons, the Board finds the March 2017 VA opinion of little, if any probative weight. Although the November 2019 VA examiner did not provide a detailed rationale for his opinion, he nonetheless concluded based upon an examination of the Veteran and medical evidence, that hearing loss and tinnitus often co-exist, and in many cases, they may have similar causes e.g. noise exposure. The opinion is thus entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner did not explicitly lay out the examiner's journey from the facts to a conclusion, did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion in the evidence of record and no other probative evidence of record which attributes the Veteran's current bilateral hearing loss to any other cause. As noted above, the Veteran reported that his tinnitus started while he was a tanker in the military. Tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles, 16 Vet. App. at 374-75. The Veteran is competent to report that he has tinnitus and has indicated that he first noticed tinnitus during service and that it has continued since that time. The Board finds his statements regarding the onset of tinnitus and continuity of symptoms are credible. Accordingly, in light of the current tinnitus diagnosis, Veteran's lay statements, November 2019 VA opinion, and resolving reasonable doubt in the Veteran's favor, service connection for bilateral tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, consideration of other theories of entitlement is unnecessary. 3. TDIU prior to June 5, 2019 Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § §§ 3.340, 3.341(a), 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a). The Veteran has already been awarded a TDIU based on the combined impairment of his service-connected disabilities effective June 5, 2019. In this case, the issue of entitlement to a TDIU is part and parcel of the claim for a higher initial rating for lumbar spine disability that stemmed from the grant of a September 22, 2014 claim for service connection for lumbar spine disability. The appeal period therefore begins on September 22, 2014. Prior to June 5, 2019, the Veteran was service connected for major depressive disorder, associated with residuals of traumatic arthritis and chondromalacia of the right ankle, rated at 50 percent from October 19, 2017; degenerative arthritis of the lumbar spine, associated with residuals of traumatic arthritis and chondromalacia of the right ankle, rated at 20 percent from September 22, 2014; radiculitis, left lower extremity (sciatic) associated with residuals of traumatic arthritis and chondromalacia of the right ankle, rated 20 percent from October 2, 2015; residuals of traumatic arthritis and chondromalacia of the right ankle, rated at 20 percent from June 4, 2003; radiculitis, right lower extremity (sciatic) associated with residuals of traumatic arthritis and chondromalacia of the right ankle, rated 10 percent from October 2, 2015; radiculitis, left lower extremity (femoral) associated with residuals of traumatic arthritis and chondromalacia of the right ankle, rated 10 percent from June 2, 2017; and bilateral hearing loss, rated at noncompensable from March 2, 2017. As noted above, for the purposes of a TDIU analysis, disabilities resulting from a common etiology are to be treated as one disability. See 38 C.F.R. § 4.16 (a)(2). Thus, the Veteran has one disability rated as 60 percent disabling for residuals of traumatic arthritis and chondromalacia of the right ankle, major depressive disorder associated with residuals of traumatic arthritis and chondromalacia of the right ankle, lumbar spine disability associated with residuals of traumatic arthritis and chondromalacia of the right ankle, radiculitis, left lower extremity (sciatic), radiculitis, right lower extremity (sciatic), radiculitis, left lower extremity (femoral), and the criteria for a TDIU under 38 C.F.R. § 4.16 (a) are met with a 60 percent combined rating from October 2, 2015, and an 80 percent combined rating from October 19, 2017 to June 4, 2019. The Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU from October 2, 2015. Thus, the next question for consideration is whether his service-connected disabilities prevented him from securing and following substantially gainful employment from October 2, 2015 to June 5, 2019. In October 2017, the Veteran submitted formal TDIU application, VA Form 21-8940a, on which the Veteran reported he worked as a chemical tech and became too disabled to work in June 2011. He indicated that he completed high school. The Veteran noted that he had not received any other education or training since becoming too disabled to work. In May 2018, the Veteran submitted another formal TDIU application, on which he indicated that he worked as a chemical tech and became too disabled to work in April 2011. He indicated that he completed high school, and completed truck driving school from February 2011 to March 2011, before he became too disabled to work. A January 2016 VA examination report shows the examiner indicated that the Veteran's right ankle disability impacts his ability to work. Specifically, the Veteran has constant pain, and difficulty with prolonged standing or walking. An April 2016 VA examination report shows the examiner indicated that the Veteran's bilateral lower extremity radiculitis impacts his ability to work, as he experiences pain on prolonged standing or walking. A June 2017 VA examination report shows the examiner indicated that the Veteran's lumbar spine disability impacts his ability to work. Specifically, he would have issues with walking over 50 meters, standing over ten minutes, bending over, no ability to squat, and no ability to carry with upper extremity or lift with upper extremity. Additionally, the pain is a constant distraction and it would be difficult to concentrate. In a July 2017 VA examination report, the examiner indicated that the Veteran's right ankle disability impacts his ability to work, as he would have issues with prolonged standing and walking. The above reflects that the Veteran's service-connected right ankle, lumbar spine, and bilateral lower extremity radiculitis has had a significant impact on his ability to work at a job for which he is qualified by his education and occupational history. Although no medical professional has expressed an opinion as to whether the Veteran's service-connected disabilities rendered him unemployable, the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the foregoing, the evidence is at least evenly balanced as to whether the Veteran's service-connected right ankle, lumbar spine, and bilateral lower extremity radiculitis render him unable to secure and follow a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted from October 2, 2015 to June 5, 2019. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 REMAND 5. Neck Although the Board regrets the delay, additional development is needed to comply with the April 2019 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In response to the Board' April 2019 remand directives, the Veteran was afforded a VA examination in November 2019. The examiner diagnosed degenerative joint disease (DJD) and degenerative disc disease (DDD) of the cervical spine and opined that this disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale indicated that "reactive cervical nodule" condition in the STR, notation of July 18, 1983, is a lymph node in his neck and is related to the lymphatic system which is responsible for clearing the body of metabolic waste and is in no related to the Veteran's cervical spine condition of DJD and DDD. The examiner, however, failed to provide an opinion with rationale addressing whether the Veteran's neck disability was caused or aggravated by his service-connected disabilities. In a September 2020 VA addendum opinion, the examiner who performed the November 2019 VA examination noted, "The Veteran's cervical spine condition is not related; it is less (1) proximately due to any of the Veteran's other service-connected disabilities (with specific discussion of his service-connected lumbar spine and right ankle disabilities), or (2) aggravated beyond its natural progression by any". Here, the examiner noted an incomplete recitation of the Board's April 2019 remand directives and failed to provide an opinion with rationale addressing whether the Veteran's neck disability was caused or aggravated by his service-connected disabilities. In light of the above, the Board finds that the examiner's opinions are inadequate, and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 6. Left Ankle In response to the Board' April 2019 remand directives, the Veteran was afforded a VA examination in November 2019. The examiner opined that the Veteran's left ankle condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner's rationale indicated the Veteran's claim that his left ankle pain is caused by his service connect right ankle condition of arthritis and ankle fusion is not founded in any medical evidence. The Veterans' left ankle pain is more likely from his morbid obesity and the aging process. The examiner, however, failed to provide an opinion with rationale addressing whether the Veteran's left ankle condition was aggravated by his service-connected right ankle. The examiner also failed to provide an opinion addressing whether the Veteran's left ankle condition is related to service. In a September 2020 VA addendum opinion, the examiner who performed the November 2019 VA examination opined that the Veteran's ankle pain is likely from the normal aging process and his heavy weight. His right ankle and left ankle are not related to his other service-related disabilities, lumbar spine and right ankle, nor is there any objective medical evidence of record or in literature to support his claim that his service-connected ankle condition was aggravated beyond its natural progression by any of his service-connected disabilities (again, with specific discussion of his service connected lumbar spine and right ankle disabilities). The examiner further noted that early degenerative changes and be associated with his service-connected disability which is evaluated; his other conditions are easily affected by his obesity. The examiner noted that it is well known that obesity causes increase pressure on joints leading to arthritis and joint weakness. Here, the examiner provided an opinion addressing aggravation of the Veteran's service-connected right ankle, instead of his left ankle condition, in accordance with the Board's April 2019 remand directives. Additionally, the examiner failed to provide an opinion addressing whether the Veteran's left ankle condition is related to service. In light of the above, the Board finds that the examiner's opinions are inadequate, and another VA medical opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate). 7. Entitlement to an extension of a temporary total evaluation beyond March 1, 2017 While the Board has granted the extension of temporary total rating based on convalescence following lumbar spine surgery, from August 11, 2016 to March 1, 2017, this does not represent the maximum extension time period available. As such, this issue remains in appellate status, particularly where, as here, private physician J.J. indicated that the Veteran's convalescent period is from August 11, 2016 to August 11, 2017. Pursuant to 38 C.F.R. § 4.30 (b)(2), the question of whether the Veteran is entitled to an additional extension of his temporary total disability rating beyond the initial six-month period may not be addressed by the Board in the first instance. Instead, an extension of one to six months beyond the initial six-month period may only be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30 (b)(2). This must be completed on remand. 8. TDIU from September 22, 2014 to October 1, 2015 As set forth above, the Board finds that there was evidence that the Veteran's connected right ankle, lumbar spine, and bilateral lower extremity radiculitis prevent him from securing and following substantial gainful employment. The Veteran's combined disability rating was 40 percent from September 22, 2014 to October 1, 2015. Therefore, he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) during that period of time. In this case, the issue of entitlement to a TDIU is part and parcel of the claim for a higher initial rating that stems from the September 22, 2014, claim for service connection for a lumbar spine disability that was granted and the appeal period therefore begins on September 22, 2014. The evidence of record is sufficient to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities during this period. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019) (the initial extraschedular referral decision under § 4.16(b) should address whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?). Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from September 22, 2014 to October 1, 2015. Given the above findings, a remand for such a referral is warranted. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician to determine the nature of the Veteran's neck disability. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The claims file should be reviewed by the clinician prior to rendering the opinion. The clinician should answer the following questions: Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disability is related to an in-service injury, event, or disease, including the cervical nodule observed in September 1984? Is it at least as likely as not (50 percent or greater probability) that the Veteran's neck disability is (a) caused or (b) aggravated by any service-connected disabilities? If aggravation is found, the clinician should identify the baseline level of severity prior to the onset of aggravation. The clinician must provide a complete rationale for any opinion set forth. In addressing this matter, the clinician should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. 2. Obtain an opinion from an appropriate clinician to determine the nature of the Veteran's left ankle disability. If an examination is deemed necessary, one should be conducted, to include via telehealth if warranted. The claims file should be reviewed by the clinician prior to rendering the opinion. The clinician should answer the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability is related to service or is either (a) caused or (b) aggravated by his service-connected right ankle. If aggravation is found, the clinician should identify the baseline level of severity prior to the onset of aggravation. The clinician must provide a complete rationale for any opinion set forth. In addressing this matter, the clinician should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran. 3. The AOJ must forward the case to the appropriate Veterans Service Center Manager for consideration of entitlement to an extension beyond the initial six-month period of a temporary total rating due to convalescence following lumbar spine disability on August 11, 2016 under 38 C.F.R. § 4.30(b). 4. Refer the issue of entitlement to a TDIU from September 22, 2014 to October 1, 2015 to the Director of Compensation. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.