Citation Nr: 21065847 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-57 594 DATE: October 27, 2021 ORDER The reduction of the disability rating for service-connected mechanical low back pain with thoracic strain and degenerative disc disease from 40 percent disabling to 10 percent disabling effective October 1, 2015, was proper and the appeal is denied. REMANDED Entitlement to a rating in excess of 10 percent disabling for service-connected mechanical low back pain with thoracic strain and degenerative disc disease, is remanded. Entitlement to a rating in excess of 30 percent disabling for service-connected cervicogenic headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In an August 2015 rating decision, the Agency of Original Jurisdiction (AOJ) reduced the rating for mechanical low back pain with thoracic strain and degenerative disc disease from 40 to 10 percent disabling as of October 1, 2015. The 40 percent rating had been in effect for more than five years. 2. The Veteran received proper notice of the proposed reduction in rating for mechanical low back pain with thoracic strain and degenerative disc disease, and improvement in the Veteran's ability to function due to service-connected mechanical low back pain with thoracic strain and degenerative disc disease is shown by a preponderance of the evidence. CONCLUSION OF LAW The criteria for reduction of the disability rating for mechanical low back pain with thoracic strain and degenerative disc disease, effective October 1, 2015, were met, and the reduction was proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 3.344, 4.97, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1992 to April 1996. In July 2021 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The reduction of the disability rating for service-connected mechanical low back pain with thoracic strain and degenerative disc disease from 40 percent disabling to 10 percent disabling effective October 1, 2015, was proper and the appeal is denied. The Veteran contends that the reduction of his rating from 40 percent disabling to 10 percent disabling for his service-connected mechanical low back pain with thoracic strain and degenerative disc disease effective October 1, 2015 was improper. For reductions, 38 C.F.R. § 3.105 (e) requires the AOJ to issue a rating decision proposing the reduction and setting forth all material facts and reasons, notify the beneficiary of the contemplated action and furnish detailed reasons therefore, and allow 60 days for the presentation of additional evidence to show that payments should continue at the present level. If a reduction is found to be warranted upon consideration of any additional evidence submitted, a final rating decision will be issued, and compensation will be reduced effective the last day of the month in which a 60-day period from the date of notice of the final action expires. See Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007); VAOPGCPREC 71-91 (Nov. 7, 1991). In April 2015, the AOJ issued a proposed reduction of the disability rating for mechanical low back pain with thoracic strain and degenerative disc disease explaining the basis for the rating reduction. The Veteran was notified of the opportunity to request a personal hearing. In July 2015, more than 60 days after the proposed reduction, the AOJ issued a final rating decision and reduced the Veteran's compensation. The reduction took effect on October 1, 2015. The Board finds that the procedural requirements for notice were satisfied. See 38 C.F.R. § 3.105 (e). In any rating-reduction case, VA must determine (1) whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition; (2) whether the examination reports reflecting such change are based upon thorough and adequate examinations; and (3) whether any improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10. The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-81 (1992). Here, additional provisions from 38 C.F.R. § 3.344 apply because the Veteran's 40 percent rating for mechanical low back pain with thoracic strain and degenerative disc disease was in place for more than five years, but less than 20. See February 2003 rating decision (increasing rating for service-connected mechanical low back pain with thoracic strain and degenerative disc disease from 20 percent disabling to 40 percent disabling effective February 6, 2002); Cf. 38 C.F.R. § 3.951 (b) (providing for protection of disability ratings in effect for 20 years or more). Accordingly, VA must review the entire record of examinations and medical-industrial history to determine whether the examination used to determine the reduction was at least as full and complete as the examination upon which the prior rating was assigned. 38 C.F.R. § 3.344 (a). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992) ("The regulation provides that VA must compare the examination which purports to show that the veteran's condition has materially improved, with the last examination continuing his 100% rating. The basis for comparison is not the examination on which the veteran was first awarded total disability."). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a); see also Brown, 5 Vet. App. at 421. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Prior to October 1, 2015, the Veteran's service-connected mechanical low back pain with thoracic strain and degenerative disc disease was evaluated as 20 percent disabling from September 2, 1997 and as 40 percent disabling from February 6, 2002 under Diagnostic Code 5292. Diagnostic Code 5292 provided for the assignment of a 10 percent rating for slight limitation of motion of the lumbar spine. A 20 percent rating was assigned for moderate limitation of motion of the lumbar spine. A maximum 40 percent rating was assigned for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002) The words "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of the issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Beginning October 1, 2015, the Veteran's service-connected mechanical low back pain with thoracic strain and degenerative disc disease is now evaluated as 10 percent disabling under Diagnostic Code 5237. Effective September 2003, the rating schedule for disabilities of the lumbar spine was changed. Under the current criteria, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2018). In adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, even though pre-2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984. There is no inconsistency, then, in using the amended regulations pertaining to range of motion of the spine as guidance in rating spine disabilities under the old criteria. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension. Fixation of a spinal segment at zero degrees is considered favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). Based on review of the record, the Board finds that a reduction in evaluation for mechanical low back pain with thoracic strain and degenerative disc disease, effective October 1, 2015, was proper. The Board finds that a brief review of the case's procedural history would be beneficial. In June 1997 the AOJ granted service connection for mechanical low back pain and assigned a 10 percent rating effective April 28, 1996. In December 1997 the AOJ increased the Veteran's rating from 10 percent disabling to 20 percent disabling effective September 2, 1997. In February 2003, the AOJ again increased the Veteran's rating from 20 percent disabling to 40 percent disabling effective February 6, 2002. In October 2013, the Veteran filed a claim for increase. In April 2014, the AOJ continued the Veteran's 40 percent rating, but noted that his condition was prone to improvement and therefore subject to reexamination. In March 2015, the Veteran filed a claim for a TDIU. As a result the AOJ reviewed the Veteran's service-connected disabilities and proposed a reduction in the rating for his mechanical low back pain. In May 2015 the Veteran submitted a notice of disagreement indicating his belief that the reduction of his rating was improper and that a rating increase was warranted. In July 2015 the AOJ implemented the decrease of the Veteran's rating. In September 1997 the Veteran underwent a VA General Medical examination. The Veteran reported constant low back pain which flared to severe pain that radiated into his legs about every two months. Upon examination, the examiner reported straight leg raising on the right was limited to 66 degrees and on the left to 56 degrees. Palpation of the back revealed tenderness bilaterally. Range of motion testing backward flexion was to 25 degrees, forward flexion was to 45 degrees, and lateral flexion was to 38 degrees bilaterally. In November 1998 the Veteran underwent a VA Spine examination. The Veteran reported that he had been in a car accident in the service during which he injured his neck and low back. He reported constant pain and that he was on various OTC medications. Upon examination, the examiner noted straight leg raises were positive on the right at 80 degrees and on the left at 65 degrees. Range of motion testing showed backward extension to 20 degrees, forward flexion to 50 degrees, bilateral lateral flexion to 40 degrees, and bilateral lateral rotation to 35 degrees. The Veteran was able to walk on his toes and heels and could squat to the floor. The examiner found that the Veteran had mechanical low back pain but that x-rays did not suggest degenerative disc disease/degenerative joint disease. In May 2002 the Veteran underwent another VA Spine examination. The Veteran again reported his in-service automobile accident and resulting pain. The Veteran stated that his lumbar pain was constant and increased with prolonged sitting and lifting. Upon examination, the Veteran stood erect with a flattened lumbar area. Range of motion testing revealed forward flexion to 30 degrees, right and left lateral bends were less than 10 degrees and extension was less than 10 degrees. In April 2014, the Veteran underwent a VA Back Conditions examination with an accompanying disability benefits questionnaire (DBQ). The examiner noted that the Veteran had lumbosacral strain, mechanical low back pain, thoracic strain, and thoracic spine degenerative disc disease. The Veteran reported chronic low back pain since his motor vehicle accident in service and reported flare-ups during damp/cold weather. Upon examination, the examiner noted that range of motion revealed that forward flexion ended at 75 degrees with pain at 55 degrees, extension ended at 30 degrees or greater with pain at 30 degrees or greater, right and left lateral flexion ended at 30 degrees or greater with pain at 30 degrees or greater, right and left lateral rotation ended at 30 degrees or greater with pain at 30 degrees or greater. Repetitive use testing was completed without any change in range of motion. The examiner noted that less movement than normal, pain on movement, interference with sitting, standing and/or weight bearing and lack of endurance contributed to functional impairment. The examiner noted no pain on palpation or muscle spasm. Strength, reflex and sensory testing was all normal. Straight leg tests were negative. The examiner found no evidence of radiculopathy, ankylosis or intervertebral disc syndrome (IVDs). The examiner found that the Veteran's back condition impacted his ability to work in that it precluded occupations that required prolonged sitting, standing or heavy lifting. In March 2015 the Veteran underwent an additional VA Back Conditions examination with an accompanying DBQ. The examiner noted that the Veteran suffered from degenerative arthritis of the spine. The Veteran reported daily pain and flare-ups where his pain and fatigue limited his function. Range of motion testing revealed forward flexion to 90 degrees, extension, and bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 30 degrees. The examiner noted pain on the examination which caused functional loss but no evidence of pain with weight bearing or localized tenderness or pain with palpation. The Veteran was able to complete repetitive use testing without any additional functional loss which was consistent with the Veteran's statements. While the Veteran was not tested immediately after repetitive use over time or during a flare-up, the examination was consistent with the Veteran's statements. Furthermore, the examiner found that pain, fatigue, and lack of endurance would significantly limit functional ability after repetitive use over time and flare-ups. The examiner found no evidence of muscle spasm or localized tenderness, but he did note guarding. However, it did not result in abnormal gait or spinal contour. Strength testing was mostly normal, sensory testing was entirely normal and reflex testing was absent. Straight leg testing was negative. The examiner found no evidence of radiculopathy or ankylosis. However, the examiner did find that the Veteran had IVDS but did not find any episodes of acute signs and symptoms due to IVDs that required bed rest prescribed by a doctor. The examiner found that while the Veteran's low back condition precluded some occupations, to include those that required sustained sitting, standing, lifting, loading, or climbing, the Veteran was not precluded from sedentary employment. In June 2018 the Veteran underwent another VA Back Conditions examination with an accompanying DBQ. The examiner diagnosed the Veteran with ankylosing spondylitis, degenerative arthritis of the spine, and lumbar back strain. The Veteran reported pain with turning or bending as well as nausea. He noted that he used a back brace, lidocaine patches, hot baths and Toradol injections to alleviate the pain. Range of motion testing revealed forward flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that pain caused functional loss. The examiner also noted pain with weight bearing and non-weight bearing as well as in passive range of motion. Furthermore, the examiner noted additional loss following repetitive use due to pain. Range of motion testing revealed forward flexion to 25 degrees, extension, and bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees. The examiner also noted additional loss following repeated use over time and during flare-ups due to pain. Range of motion testing revealed forward flexion to 25 degrees, extension, and bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees. The examiner found no evidence of guarding or muscle spasms. Strength, reflex, and sensory examinations were normal. The examiner found no evidence of ankylosis or IVDS. The examiner found that the Veteran's back condition would impact his ability to work in that "certain ranges of motion increased pain." Treatment records throughout the history of the Veteran's appeal reflect the Veterans reports of chronic low back pain. The Veteran reported taking OTC pain medications which helped to alleviate some of the pain. In light of the foregoing, the Board finds that the preponderance of the evidence demonstrates actual improvement in the severity of the Veteran's mechanical low back pain with thoracic strain and degenerative disc disease symptoms. Initially, the Board notes that the March 2015 examination upon which the reduction was based revealed forward flexion to 90 degrees or full range of forward flexion. Additionally, the examiner noted that the Veteran was able to complete repetitive use testing without any additional functional loss which was consistent with the Veteran's statements. Furthermore, while the Veteran's contemporary treatment records reflected the Veteran's reports of low back pain, they appear to be in agreement with the March 2015 examination. Finally, while all of the examinations of record found that the Veteran's low back disability impacted his ability to work, they did not indicate that he had trouble conducting his activities of daily living or that his back condition would impede his ability to perform sedentary work or work requiring light exertion. The Board acknowledges that the Veteran has reported chronic pain. Regarding such symptoms, the Board finds that the severity described has little probative value on his ability to function under the ordinary conditions of life and work. Furthermore, the Veteran seems to contend that his symptoms while they may increase during a flare-up, they are manageable with OTC pain medications and injections. Furthermore, the examinations of record, particularly the March 2015 examination, indicate normal or almost normal functioning and range of motion, even during repetitive testing. Finally, the Board notes that the Veteran has contended that his symptoms have worsened over the years. However, the findings contained in the April 2014 and March 2015 examinations are consistent with treatment records throughout the period on appeal, which do not demonstrate the symptoms with the severity and frequency as described by the Veteran. Accordingly, the Board finds that the weight of the competent and probative evidence preponderates in favor of finding improvement in the Veteran's ability to function under the ordinary conditions of life and work due to mechanical low back pain with thoracic strain and degenerative disc disease. Finally, the Board finds that the March 2015 examination on which the reduction was based is as thorough and adequate as the April 2014 VA examination on which the continuation of the 40 percent rating was based. Specifically, the Board finds that the examination was viewed in relation to the whole recorded history, and there is evidence that the examiner assessed the Veteran's employability. The March 2015 VA examination indicated that the examiner reviewed the Veteran's VA treatment records, the examination reflects the medical history as provided by the Veteran, and the examiner opined that the Veteran's low back condition would not result in occupational limitations with sedentary employment. Accordingly, the Board finds that the March 2015 VA examination on which the reduction was based is as thorough and complete as the April 2014 VA examination on which the continuation of the 40 percent rating was based. In light of the foregoing, the Board finds that an improvement in the Veteran's ability to function under the ordinary conditions of life and work is shown by a preponderance of the competent and probative evidence. See Brown, 5 Vet. App. at 421. Accordingly, the reduction for mechanical low back pain with thoracic strain and degenerative disc disease, effective October 1, 2015, was proper. See 38 U.S.C. § 1155; 38 C.F.R. § 3.105. In arriving at its decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence shows an actual improvement and a proper reduction, that doctrine is not applicable. See 38 C.F.R. §§ 3.105 (e), 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to a rating in excess of 10 percent disabling for service-connected mechanical low back pain with thoracic strain and degenerative disc disease and in excess of 30 percent disabling for service-connected cervicogenic headaches is remanded. Relevant to the Veteran's claims for increased ratings for his service-connected mechanical low back pain with thoracic strain and degenerative disc disease and cervicogenic headaches, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claims for increased ratings for his service-connected mechanical low back pain with thoracic strain and degenerative disc disease and cervicogenic headaches must be remanded in order to afford him contemporaneous VA examinations in order to assess the current nature and severity of his service-connected disabilities. In this regard, the record reflects that the Veteran was most recently afforded a VA Back Conditions examination in June 2018 and a VA Headache Conditions examination in March 2015. As will be discussed further below, the Board finds the June 2018 Back Conditions examination inadequate. Furthermore, since the time of the prior examinations, the Veteran has noted an increase in the severity of his symptoms and alleges that higher ratings are warranted. In light of the allegations of worsening symptoms and the amount of time which has passed since the Veteran's prior examinations, the Board finds that a remand is required in order to afford the Veteran contemporaneous VA examinations so as to determine his current level of impairment with regard to his service-connected mechanical low back pain with thoracic strain and degenerative disc disease and cervicogenic headaches. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). As previously noted, the Board finds the June 2018 VA Back Conditions examination inadequate. The examination is internally inconsistent as the examiner found that the Veteran had ankylosing spondylitis but also found no evidence of ankylosis. Therefore, on remand a clarifying and contemporaneous examination should be obtained. Entitlement to a TDIU due to service-connected disabilities is remanded. In regard to the Veteran's TDIU claim, such must be remanded because it is inextricably intertwined with the other claims herein remanded, as the outcome of the other claims may impact the TDIU claim. A hypothetical grant of the other claim could significantly change the adjudication of the TDIU issue as a grant of such would increase the Veteran's overall combined disability percentage. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The Board also notes that while the Veteran does not currently meet the schedular requirements for a TDIU, he asserts that his conditions prevented him from securing substantially gainful employment; that his disabilities present an unusual disability picture that would entitle him to a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16 (a). While the Board cannot make a determination about entitlement to a TDIU on an extraschedular basis in the first instance, the Board finds that if after an additional adjudication of the other remanded claim, the Veteran continues to not meet the schedular criteria, the AOJ should consider entitlement to an extraschedular TDIU. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected mechanical low back pain with thoracic strain and degenerative disc disease. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's lumbar spine and present the results of range of motion tests in written reports which comply with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If possible, the VA examiner should also provide retrospective medical opinions addressing the ranges of motion, additional functional impairment, and severity of the Veteran's service-connected mechanical low back pain with thoracic strain and degenerative disc disease. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner(s) must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Again, if possible, the VA examiner should provide a retrospective medical opinion addressing the functional impairment of the Veteran's mechanical low back pain with thoracic strain and degenerative disc disease. If any of these findings are not possible, please provide an explanation. 3. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected cervicogenic headaches. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. 4. If after adjudication of the other remanded claim, the Veteran continues to not meet the schedular criteria for a TDIU, refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.