Citation Nr: 21065587 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-01 814 DATE: October 26, 2021 ORDER The claim of an initial rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD) with associated depressive disorder NOS, prior to December 20, 2017, is denied. REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD with associated depressive disorder NOS, to include on an extra-schedular basis pursuant to 38 C.F.R. § § 4.16(b), prior to December 20, 2017, is remanded. FINDINGS OF FACT At no point prior to the December 20, 2017 effective date of the award of a 100 percent rating for service-connected psychiatric disability PTSD with associated depressive disorder NOS, was the Veteran shown to experience psychiatric symptoms of the type and extent, frequency and/or severity (as appropriate) to indicate occupational and social impairment with major deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating greater than 50 percent for PTSD with associated depressive disorder NOS, prior to December 20, 2017, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.20, 4.125, 4.126, 4.130, DC 9411, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1967 to February 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for PTSD with associated depressive disorder NOS, and assigned an initial 30 percent rating, effective February 8, 2010. In December 2010, the Veteran filed a notice of disagreement (NOD) with the assigned rating. In December 2011, a statement of the case (SOC) was issued. In January 2012, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). In a March 2015 rating decision, the RO granted a 50 percent rating for PTSD with associated depressive disorder NOS, effective April 23, 2013. In that rating decision, the RO also denied entitlement to a TDIU. Although the Veteran did not timely express disagreement with the denial of a TDIU, in a March 2015 supplemental SOC (SSOC), the RO denied a higher rating for PTSD with associated depressive disorder NOS and a TDIU. In November 2015, the Veteran and his wife testified during a Board video-conference hearing before a now retired Veterans Law Judge (VLJ); a transcript of that hearing is of record. In January 2016, the Veteran filed a motion to correct errors in the Board hearing transcript. In a March 2016 order, the retired VLJ granted that motion in full, pursuant to 38 C.F.R. § § 20.716. In August 2021, the Veteran was informed that the VLJ who conducted the November 2015 hearing retired. The Veteran was offered a hearing with a VLJ who would decide his appeal, but the Veteran declined. In June 2016, the Board expanded the appeal to include the matter of the Veteran's entitlement to a TDIU due to PTSD with associated depressive disorder NOS (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)), reopened a previously denied claim for service connection for bilateral hearing loss and granted that claim, on the merits; and remanded the claim for service connection for bilateral hearing loss, as well as the claims for higher rating for the PTSD with associated depressive disorder NOS and for a TDIU due to that disability for further action, to include additional development of the evidence. After accomplishing further action, in a March 2018 rating decision, the agency of original jurisdiction (AOJ) assigned a 100 percent rating for PTSD with associated depressive disorder NOS, effective December 20, 2017. However, the AOJ also continued to deny higher ratings for PTSD with associated depressive disorder NOS, prior to December 20, 2017, and a TDIU due to that disability (as reflected in a March 2018 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. In April 2018, the Board granted an initial 50 percent rating for PTSD with associated depressive disorder NOS from February 8, 2010, to April 23, 2013, but denied a higher rating for the disability prior December 20, 2017, and also denied entitlement to a TDIU due to service-connected PTSD with associated disorder NOS. Thereafter, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Veteran's representative and VA's General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the Court to vacate the Board's decision insofar as it had denied an initial rating greater than 50 percent prior to December 20, 2017 for PTSD with associated disorder NOS and entitlement to a TDIU due to service-connected PTSD with associated disorder NOS. In March 2019, the Court granted the motion, vacating those portions of the Board's decision requested, and remanding the claims to the Board for further proceedings consistent with the Joint Motion. In September 2019, the Board denied an initial rating in excess 50 percent rating for PTSD with associated depressive disorder NOS prior December 20, 2017, and also denied entitlement to a TDIU due to service-connected PTSD with associated disorder NOS. The Veteran appealed the September 2019 Board decision as to these determinations to the Court, and in a February 2021 Memorandum Decision, the Court vacated the Board's decision and remanded these matters back to the Board for development consistent with the Memorandum Decision. Specifically, the Court found the Board erred when it did not adequately discuss evidence of symptoms including: impaired impulse control, including difficulty with interpersonal interactions at work, with the Veteran's spouse, and with his friends, and suicidal ideation. Additionally, the Court determined the Board provided an identical inadequate analysis of the Veteran's GAF scores. Finally, the Court found the decision failed to explain how the Veteran's occupational history and training would translate into a job where interpersonal interaction was not often required. Because the Veteran has disagreed with the initial rating assigned following the award of service connection for PTSD with associated depressive disorder NOS, the Board has characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher rating for the Veteran's disability, inasmuch as higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). Notably, as regards to the TDIU claim, as less than the maximum benefit was awarded prior to December 20, 2017, this matter remains for the Board's consideration. See AB, supra. The claim of an initial rating greater than 50 percent for service-connected posttraumatic stress disorder (PTSD) with associated depressive disorder NOS, prior to December 20, 2017, is denied. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, an initial 50 percent rating for the Veteran's PTSD with associated depressive disorder NOS has been assigned from the February 8, 2010, effective date of award of service connection, to December 20, 2017. Although the rating was assigned under DC 9411, the actual criteria for rating psychiatric disabilities other than eating disorders are set forth in a General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § § 4.130. Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § § 4.130, DC 9411. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § § 4.126(b). With regard to GAF scores, the Board notes that they have been found "unreliable" by the American Psychiatric Association and, indeed, the use of GAF scores was abandoned by the DSM-5. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). Indeed, the Board may not consider GAF scores in assigning psychiatric ratings in cases where the DSM-5 applies. Id. Even in cases where the DSM-5 does not apply, it is still the fact that these scores have been deemed unreliable. Id. For this reason, the Board bases the decision here on reported symptomatology of his psychiatric disability throughout the appellate time frame. It is the description of the symptomatology that the Board finds to be of more probative value and more indicative of the severity of his condition. Turning to the pertinent evidence of record, the Veteran was afforded a VA examination in April 2010. At that time, the Veteran reported difficulty sleeping and longstanding nightmares about his experiences during active duty. The Veteran stated that he sleeps in a different room than his spouse as he does not like touching anyone while sleeping. He reported intrusive distressing thoughts daily. He noted that he lives in an isolated area of Colorado in a log cabin, away from others. The Veteran also reported that although he was retired, he did some ski area engineering three days a week. Increased anxiety and depression were noted. He reported sleeping only two to four hours per night. The Veteran denied any hallucinations or delusions. He stated that he did not have suicidal or homicidal ideations but, contradictorily stated that he sometimes thought "the only way he could have a decent night's sleep was to commit suicide." The Board notes, that given the context of the report, the suicidal ideation appears to be in the past. To wit, the report indicates that the Veteran's sleep pattern had improved a great deal with his medication at the time of the examination. Indeed, CAPRI records show the Veteran was prescribed Paxil for his sleep difficulties for the entire period on appeal. The examiner noted that the Veteran had occasional decrease in work efficiency but that he had generally satisfactory functioning. The Veteran was oriented in all spheres. On VA examination in August 2011, the Veteran reported being married to his second wife for 37 years. He noted having two adult sons. He reported recently seeing one of his sons and meeting his two grandchildren. He reported a good relationship with his two sisters. The Veteran reported friends from his past job as a police officer. He noted playing softball with past colleagues and having a few other friends. He stated that he retired from work three years prior due to a personality conflict with a new supervisor. The Veteran explained that they would yell at each other. The Veteran noted that after retiring from the police force, he worked at a hotel in the evenings to avoid others. Symptoms noted were depressed mood, anxiety, suspiciousness, panic attacks more than once per week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and suicidal ideation when he cannot sleep. The examiner noted that the Veteran had a good sense of humor. The examiner also documented the Veteran's report that he had a depressed mood every morning and that it was hard to get motivated to do anything but that he would feel better after he had lunch and lifted weights. The examiner stated that the Veteran's psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The report of a private psychiatric evaluation dated in April 2013 from Dr. N.S.K., M.D., is of record. The Veteran reported extreme sleep problems and panic when it is dark. He reported flashbacks to his time on active duty. The Veteran stated that he quit his job at the police department due to conflicts with his new supervisor. Nightmares were reported. The Veteran noted having approximately ten friends who come over to his house to watch wrestling. The Veteran reported volunteering for the fire department twice per month. The Veteran stated that he works well with good leaders, but not with poor leaders. The Veteran reported that he was suicidal in the past. Mental status examination revealed that the Veteran was oriented in all spheres. The Veteran was afforded a VA examination in December 2014. The Veteran stated that his wife does just about everything while the Veteran hopes to get only some things done. He stated that he has a friend, who is also a veteran. He explained that he has stopped watching wrestling with his friends, as previously reported. However, the Veteran reported that he still had friends on the police force with whom he met occasionally and described those get togethers as happy occasions. The Veteran noted a relationship with one of his sons, but not with the other son. The Veteran also reported that any time he traveled to the east coast, he would either stay with his sister or his son. He reported a good relationship with his grandchildren. His continued volunteer efforts with the fire department were noted. Symptoms noted were depressed mood, anxiety and chronic sleep impairment. His last suicidal ideation was in 2003 or 2004. The examiner discussed the Veteran's problems while working at the police department and noted that his symptoms would not prevent him from working in an occupation with minimal interactions with others. The examiner noted that the Veteran displayed good focus, concentration, and attention. His overall mood was euthymic, but his stated mood was fatigued. The speech was noted as normal in rate and pitch. The Veteran maintained appropriate eye contact with the examiner and was dressed and groomed appropriately. The examiner further noted that the Veteran's thoughts were logical, and goal directed. The examiner stated that the Veteran's psychiatric symptoms are productive of occupational and social impairment with reduced reliability and productivity. The Veteran reported positive relationships with his wife and two sisters. During the November 2015 Board hearing, the Veteran's wife reported being married to the Veteran for almost 40 years. She testified that the Veteran was estranged from his sons because his ex-wife lied to his children growing up to keep them apart and after the older son realized his mother had lied, he reached out to the Veteran and developed a relationship in approximately 2011. She reported that the Veteran plays softball with other individuals. She also reported that the Veteran is easily irritable and yells often. While she described episodes of "violence" in the distant past, she also testified that she did not "feel physically threatened" when the Veteran became angry with her. She further testified the Veteran left his job as a police officer due to conflicts with his new supervisor. She also explained that the Veteran worked at a hotel following his work as a police officer. She explained that he left that job due to conflict with his supervisor and was unable to work as a bus driver due to problems with children. Based on consideration of the above-cited evidence, the Board finds that the collective lay and medical evidence indicates that an initial rating greater than 50 percent prior to December 20, 2017 is not warranted. Prior to December 20, 2017, the Veteran displayed symptoms of depression, anxiety, panic attacks, disturbances of motivation and mood, sleep impairment, impairment of short-term memory, and difficulty in establishing and maintaining relationships. Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest occupational and social impairment with reduced reliability and productivity-the level of impairment contemplated in the 50 percent rating. The Board recognizes that the CAVC vacated the previous Board decision because it did not adequately discuss symptoms of impaired impulse control, including difficulty with interpersonal interactions at work, with the Veteran's spouse, and with his friends, and suicidal ideation when determining that a higher disability rating was not warranted. However, in the present decision, the Board finds that the Veteran was not shown to experience the vast majority of symptoms listed in the criteria for a 70 percent rating as examples of those of the type and extent, frequency, and/or severity to result in major deficiencies in most areas during the period on appeal. The Board acknowledges the Veteran reported that he had suicidal thoughts when he had difficulty falling asleep as cited by the CAVC. However, while the Veteran has noted past suicidal ideation associated with his sleep difficulties, as detailed above, these symptoms appear to be prior to the period on appeal. While a single April 2014 VA treatment appears to show the Veteran had suffered from suicidal ideation a month prior, the Board observes the Veteran indicated his last episode of suicidal ideation was in 2003 or 2004 at the comprehensive December 2014 VA examination. He did not report obsessional rituals which interfere with routine activities. His speech had been within normal limits throughout this time period. Although he has exhibited depression and anxiety throughout the entire period under consideration in this appeal there is no showing that the Veteran was unable to function independently, appropriately and effectively. Although the Veteran had reported that he was dependent on his wife for "nearly everything" and that he lacked motivation, spending most of his time watching television and rarely leaving the house, the Board notes that the Veteran also performed tasks independently of his wife, such as playing softball, volunteering as a fireman, and hosting friends to watching wrestling matches. Turning to the issue of impaired impulse control cited by the CAVC, while the Veteran contends that he suffers from impaired impulse control, this was never clinically noted; indeed, the Veteran's wife testified at the November 2015 Board hearing that she never feared for her physical safety when the Veteran became angry and only referred to periods of "violence" in the past. And while the Veteran's wife has claimed that he was involved in a physical altercation with a friend, the Veteran repeatedly denied physical fights upon examination. He was not shown to have spatial disorientation or neglect of personal appearance and hygiene. Further, an inability to establish and maintain effective relationship also was not shown. In explanation, the Board acknowledges that the Veteran had difficulty with interpersonal interactions, including with past supervisors and that his PTSD symptoms negatively affected his marriage and friendships, and resulted in a falling out with one sister in December 2014. However, the Board observes that he remained married and maintained relationships with other family members, to include his sister. Further, the Veteran also established a relationship with his son and grandchildren in approximately 2011 that he has since maintained. Further, the Veteran reported that during this period, he had several friends in the police force and that he played softball with other friends. As the criteria for the next higher, 70 percent rating are not met prior to December 20, 2017, it logically follows that the criteria for the maximum 100 percent rating, likewise, are not met. Here, the Board has determined that, for the period prior to December 20, 2017, the Veteran's symptoms, as described by him, his treatment providers, and examiners, most closely approximate the symptoms delineated in the criteria for a 50 percent rating under the General Rating Formula. A review of the reported symptomatology reveals that the Veteran's symptoms were indicative of overall moderate impairment prior to December 20, 2017. There was no evidence of any active suicidal ideations, severe obsessional rituals or any other severe behavior during the period on appeal. Again, the Board reiterates that it is the symptoms shown, which provides the basis for the assigned rating. See 38 C.F.R. § 4.126(a). As explained above, in this case, for the period prior to December 20, 2017, no more In assessing the severity of the Veteran's PTSD prior to December 20, 2017, the Board has considered the assertions of the Veteran and wife regarding his symptoms, which they are certainly competent to provide. See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As indicated above, however, evaluation of his psychiatric disability involves clinical findings, observations, and assessments by trained mental health professional, and neither the Veteran nor any of his wife is shown to be such a professional, or to have the requisite training and expertise to evaluate mental health disabilities. See 38 C.F.R. § 3.159; see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). Hence, while considered, the lay assertions are not considered more persuasive than the objective clinical findings which, as indicated above, do not support assignment of a higher rating for the Veteran's disability. For all the foregoing reasons, the Board finds that there is no basis for any staged rating of the disability under consideration; and that a higher rating at any pertinent point prior December 20, 2017, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher rating at any time prior to December 20, 2017, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). REASONS FOR REMAND The claim of entitlement to an extraschedular TDIU due to service-connected PTSD with associated depressive disorder NOS, prior to December 20, 2017, is remanded. As previously mentioned, in June 2016, the Board expanded the appeal to include the matter of entitlement to a TDIU due to PTSD with associated depressive disorder NOS pursuant to Rice, supra. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of Compensation and Pension Service for extra-schedular consideration. The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. As this TDIU claim emanates from the Veteran's claim for a higher rating for PTSD, the sole inquiry is whether service-connected PTSD with associated depressive disorder NOS alone (without regard to any other service-connected disability) rendered the Veteran unemployable prior, regardless of the AOJ's characterization of the claim. See Rice, supra. In this instance, for period from the February 8, 2010 award of service connection to December 20, 2017, the Veteran did not meet the basic eligibility requirements for a TDIU due to PTSD with associated depressive disorder NOS on a schedular basis. Indeed, given the initial 50 percent rating assigned for PTSD with associated depressive disorder NOS, there was no single service-connected disability rated as 60 percent disabling. Accordingly, the percentage requirements for a schedular TDIU for the service-connected psychiatric disability for the period in question are not met. See 38 C.F.R. § 4.16(a). Nevertheless, as mentioned above, if a veteran does not meet the percentage standards but is unable to secure or follow a substantially gainful occupation by reason of his service-connected disability, the claim should be submitted to the first line authority for extra-schedular consideration. See 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, the case must be remanded so that the issue of entitlement to a TDIU prior to December 20, 2017 can be referred to the Director of Compensation Service for consideration of entitlement to an extraschedular disability rating. The matters are REMANDED for the following action: 1. Refer the claim to the Director of Compensation Service for consideration of an extraschedular TDIU rating from the period prior to December 20, 2017. 2. After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.