Citation Nr: 21068506 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-19 283A DATE: November 10, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) lumbosacral spine s/p L5-S1 laminectomy with residual scar (previously evaluated as post-operative residual laminectomy for discogenic disease, lumbosacral spine) (low back disability), excluding any period during which a temporary total rating has been assigned, evaluated as 20 percent disabling prior to October 2, 2019, and 20 percent disabling percent from December 1, 2019 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to January 8, 2019 is remanded. FINDING OF FACT The Veteran's low back disability is manifest by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in May 2019. An April 2020 rating decision temporarily increased the rating for the Veteran's low back disability, from 20 percent to 100 percent, effective from October 2, 2019 to December 1, 2019, based on surgical or other treatment necessitation convalescence under 38 C.F.R. § 4.30. The April 2020 rating decision then restored the 20 percent rating, effective December 1, 2019. Subsequently, a July 2020 rating decision temporarily increased the rating for the Veteran's low back disability, from 20 percent to 100 percent, effective June 12, 2018 to August 12, 2018, based on surgical or other treatment necessitation convalescence under 38 C.F.R. § 4.30. The July 2020 rating decision then restored the 20 percent rating, effective September 1, 2018. In November 2019 and July 2020, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. Increased Rating Generally, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. Further, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell, 25 Vet. App. at 37. Under 38 C.F.R. § 4.59, at least the minimum compensable rating is warranted for actually painful, unstable, or malaligned joints. "[T]he plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the [Diagnostic Code] under which the disability is being evaluated is predicated on range of motion measurements." Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The provisions of 38 C.F.R. § 4.49 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an increased rating in excess of 20 percent for a low back disability (excluding any period during which a temporary total rating has been assigned), evaluated as 20 percent disabling prior to October 2, 2019, and 20 percent disabling percent from December 1, 2019 The Veteran contends that he is entitled to an increased disability rating in excess of 20 percent for his low back disability. The Veteran's low back disability is presently rated as 20 percent disabling under DC 5243, for intervertebral disc syndrome (IVDS). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted if there have been incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent rating is warranted if there have been incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted if there have been incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted if there have been incapacitating episodes having a total duration of at least six weeks during the past 12 months. According to Note (1) associated with the Formula for Rating IVDS Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS may alternatively be rated under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability rating is warranted if there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined ROM of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding 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 warranted if there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, with or without symptoms such as pain, stiffness, or aching. A 100 percent disability rating is warranted if there is unfavorable ankylosis of the entire spine, with or without symptoms such as pain, stiffness, or aching. As in this instance, where an increase in the rating assigned is at issue, the primary concern is the Veteran's present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In such cases, if factually ascertainable, the effective date assigned may be up to one year prior to the date the application for increase was received. 38 U.S.C. § 5110. As such, the relevant timeframe for consideration is from September 4, 2013 to the present. See September 2014 VA Form 21-526b. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of his low back disability. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, he is not competent to render a diagnosis of or an opinion on such a complex medical matter as ROM measurements or the presence of ankylosis because it is not within the realm of his personal knowledge as it requires specialized tools, knowledge or training beyond the competency of a lay person. Id. Therefore, in this regard, the Board must rely on the medical evidence of record. During the pendency of this appeal, the Veteran was afforded VA examinations in March 2015, June 2017, February 2018, December 2019, and November 2020. On March 2015 examination, the Veteran reported that he continues to have low back pain with residual right-side sciatica and weakness. He reported he has constant right side lower extremity radicular pain and in the past few years it is traveling down his left leg with numbness and tingling. He also avers that he experiences flare ups which he described as recurrent severe right lower extremity pain intermittently with prolonged walking or standing. He stated these episodes occur three to four times per month and last for one to two days. He reported functional loss or functional impairment described as increased back pain, pain after standing for 30 minutes, and having to lie down with his feet elevated daily. ROM testing revealed the Veteran was able to demonstrate forward flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. The examiner noted abnormal ROM contributes to his functional loss. He noted increased pain with decreased flexion and extension and evidence of pain with weight bearing. Objective evidence of localized tenderness or pain on palpation was noted and described as moderate tenderness over mild to lower LS spine paravertebral muscle and pain over right side joint. The examiner noted no additional loss of function or range of motion after repetitions. Pain, fatigue, weakness, and lack of endurance were noted to limit functional ability with repeated use over a period of time and during a flare up. Muscle strength was rated as normal to active movement against some resistance. Reflexes were hypoactive to absent. Sensation to light touch was primarily intact with a decrease in the right lower leg/ankle and right foot/toes. The straight leg test was positive. The Veteran was noted to have radicular pain and/or other symptoms due to radiculopathy with severe pain in the right lower extremity that was constant and intermittent, and severe paresthesias and/or dysesthesias and moderate numbness of the right lower extremity. Left side lower extremity revealed only mild symptoms. There was no evidence of any ankylosis. IVDS was noted but the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use an assistive device for locomotion. The Board notes this examination was conducted prior to the decision in Correia v. McDonald, 28 Vet. App. 158 (2016). Upon reviewing the March 2015 examination report for compliance with the Correia mandates, the Board finds it is not fully compliant as there is no indication the VA examiner conducted testing with both active and passive motions or in both weight-bearing and non-weight bearing. Further, the VA examiner did not proffer an opinion bearing on the limitation of motion or function during a flare-up episode or with repeated use over time. As such, the Board finds it is incomplete. On June 2017 examination the Veteran reported flare ups and functional loss or functional impairment which was described the same as reported on March 2015 examination. ROM testing revealed forward flexion to 50 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. The examiner noted abnormal ROM contributes to his functional loss. He noted increased pain with decreased flexion, extension, lateral flexion and lateral rotation bilaterally. There was evidence of pain with weight bearing. Objective evidence of localized tenderness or pain on palpation was noted and described as moderate tenderness over mild to lower LS spine paravertebral muscle and pain over right side joint. The examiner noted no additional loss of function or range of motion after repetitions. He was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time or with flare ups. The Veteran did not have guarding or muscle spasm. He had full muscle strength at all relevant aspects bilaterally. Reflexes were hypoactive to absent. Sensation to light touch was primarily intact throughout bilaterally, except for the feet and toes. The straight leg test was positive. The Veteran had radicular pain and/or other symptoms due to radiculopathy reported as severe pain in the right lower extremity that was constant and intermittent, and severe paresthesias and/or dysesthesias and moderate numbness of the right lower extremity. Symptoms were moderate for all aspects on the left side. There was no evidence of any ankylosis. IVDS was noted but the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported constant use of a cane as a normal mode of locomotion. Arthritis was documented on imaging studies. The examiner indicated the Veteran could not do beyond a sedentary lifestyle or occupation. Pursuant to Correia, the examiner noted that there was no pain with non-weight bearing noted on exam. The examiner noted that no passive range of motion testing or pain with weight bearing had been conducted, stating that it could not be performed or is not medically appropriate. On February 2018 examination the Veteran denied flare ups. He reported functional loss or functional impairment which he described as, "I can do anything, but if I walk out the front door to get the mail, 50 feet, I have to lay down." He stated that walking really aggravates his back. ROM testing revealed forward flexion to 70 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. The examiner noted abnormal ROM contributes to his functional loss. He noted the Veteran is unable to engage in repetitive bending/twisting or standing/walking long distance. Objective evidence of localized tenderness or pain on palpation was noted and described as lumbar paraspinal tenderness to palpation. There was no additional loss of function or range of motion after three repetitions. Pain was noted to significantly limit functional ability with repeated use over a period of time. The Veteran did not have guarding or muscle spasm. He had full muscle strength at all relevant aspects bilaterally and no muscle atrophy. Reflexes were hypoactive to absent. Sensation to light touch was primarily intact throughout bilaterally, except for the feet and toes. The straight leg test was positive. The Veteran was noted to have radicular pain and/or other symptoms due to radiculopathy reported as moderate constant pain bilaterally. Paresthesias and/or dysesthesias and numbness were moderate bilaterally. There was no evidence of any ankylosis. IVDS was noted but the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported constant use of crutches as a normal mode of locomotion. The examiner noted antalgic gait walking with 3-point cane. He indicated walking more than 50 feet, prolonged standing and bending or twisting would be limited by the Veteran's low back condition. Pursuant to Correia, the examiner noted that there was pain with weight bearing and non-weight bearing which causes functional loss and decreased range of motion. The examiner noted that pain with passive range of motion could not be performed or is not medically appropriate. The Veteran submitted a letter in April 2018 requesting that his original rating be reinstated. He stated that his back pain is constant and debilitating no matter what his movements are. He stated he is unable to function while enduring it and that the pain is so severe it necessitated additional back surgery. During his May 2019 Board hearing, the Veteran testified that his quality of life and physical activity has been very reduced and is very minimal. See May 2019 Board hearing transcript, pg. 4. He testified that he could get up and walk but he cannot walk far and if he goes outside, he must use his cane, which he testified has not been very effective. Id. In November 2019 the Board found further development was necessary because the extent of functional impairment in terms of additional ROM was not noted by the February 2018 VA examiner. The Board also found that while the February 2018 VA examiner addressed ROM testing on active motion, the examiner did not note the degree in which pain decreased the level of functional loss. On December 2019 examination, the Veteran denied flare ups. He reported functional loss or functional impairment which he described as, being told to avoid bending, stooping, twisting since his most recent surgery. He reported pain with walking any distance and noted that he cannot walk greater than 50 yards at a time. He reported he does not lift greater than a gallon of milk and not more than 10 pounds. He reported increased pain with standing for even short periods of time. He reported discomfort sitting in certain types of chair, but he is able to sit indefinitely in his recliner. ROM testing revealed the Veteran was able to demonstrate forward flexion to 45 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 0 degrees, and lateral rotation to 20 degrees bilaterally. The examiner noted abnormal ROM contributes to his functional loss. He noted the Veteran is unable to engage in bending, light, or heavy lifting, twisting, and stooping. Objective evidence of localized tenderness or pain on palpation was noted and described as tenderness to palpation over incision and tenderness to palpation over bilateral lumbosacral paraspinal musculature. The examiner explained the scar is still healing from surgery and it is typical for incisional pain to be present within 90 days of surgery. The examiner indicated there was additional loss of function or range of motion after three repetitions. Pain was noted to significantly limit functional ability with repeated use over a period of time. The examiner explained that the Veteran is unable to engage in repeated ROM due to pain. He was only able to complete three flexions measuring 45 degrees, 40 degrees and 42 degrees. The examiner noted he could not assess left lateral flexion or bilateral rotations due to pain. He noted guarding resulting in abnormal gait or abnormal spinal contour due to the Veteran's chronic back condition and his recent spine surgery. Muscle strength was noted as active movement with gravity eliminated on the right side and active movement against gravity on the left side. He had no muscle atrophy. Reflexes were hypoactive. Sensation to light touch was normal in the upper anterior thigh and thigh/knee bilaterally and in the right lower leg/ankle. Sensation to light touch was decreased in the left lower leg/ankle and absent in the feet and toes. The straight leg test was negative on the right and positive on the left. Radicular pain and/or other symptoms due to radiculopathy were noted. Symptoms were mild to moderate. Numbness in the left lower extremity was severe. There was no evidence of any ankylosis. IVDS was noted but the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported regular use of a cane and a walker as a normal mode of locomotion. The examiner noted the Veteran exhibits pain behaviors throughout the examination, at rest and with movement. He was observed to independently move from a standing to a seated position but with pain and to ambulate with the assistance of a walker. The examiner noted that there was pain with non-weight bearing which causes functional loss described as being "unable to engage in prolonged sitting, must take breaks from sitting." The examiner noted that pain with passive range of motion could not be performed or is not medically appropriate. Pain with weight bearing was noted and causes functional loss. In July 2020, the Board directed the RO to schedule the Veteran for a new VA examination and to obtain a retrospective opinion from the examiner who conducted the December 2019 VA examination because the March 2015 examination did comply with 38 C.F.R. § 4.59, as interpreted by the U.S. Court of Appeals for Veterans Claims in Correia; his third VA examination was returned for similar reasons and because the Veteran underwent three low back surgeries between his third and fourth examinations. The Board observed that the December 2019 VA examiner noted the Veteran was still recovering and that it was not possible to determine what the Veteran's ROM and functional status will be once he recovers without resorting to speculation. Therefore, the Board found the most recent examination does not necessarily reflect the current severity of the Veteran's low back disability or his disability picture before surgery. On November 2020 examination, the Veteran reported flare ups and functional loss or functional impairment which he described as "pretty excruciating down my quads, weakness is worsened since last surgery, severe neuropathy, if he falls, he does not use his walker since he does not have feeling in his feet." ROM testing revealed forward flexion to 60 degrees, extension to 20 degrees, lateral flexion and lateral rotation to 20 degrees bilaterally. The examiner noted abnormal ROM contributes to his functional loss. He noted it limits walking without an assisted device, limits how much walking can occur, and severely impacts bending, stooping, squatting, pushing, and pulling. The examiner noted pain on examination and causes functional loss. There was objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after three repetitions. ROM was the same with flare up as with active ROM. There was no guarding or muscle spasm and no additional factors contributing to the Veteran's low back disability. Muscle strength was normal except ankle plantar flexion bilaterally and right-side ankle dorsiflexion and great toe extension which was rated as active movement against some resistance. He had no muscle atrophy. Reflexes were hypoactive in the knees and absent in the ankles. Sensory exam was normal except for right side lower leg/ankle and foot/toes which were noted to be decreased. The straight leg test was positive. The Veteran was noted to have radicular pain and/or other symptoms due to radiculopathy. Symptoms were mild to severe. There was no evidence of any ankylosis. The examiner found no evidence of IVDS. The Veteran reported constant use of a walker as a normal mode of locomotion. No other pertinent physical findings, complications, conditions, signs, or symptoms were made. The examiner noted the Veteran's low back disability does not impact his ability to work. Pursuant to Correia, the examiner noted that there was no evidence of objective pain with non-weight bearing. The examiner noted ROM for passive ROM was the same as active ROM. Pain with weight bearing was noted. ROM was noted to be the same active ROM. A November 2020 retrospective opinion was obtained pursuant to the July 2020 Board remand. In determining the severity of the Veteran's low back disability prior to his October 2019 low back surgery, the examiner opined based on interview of the Veteran, records and his physical exam, his ROM was limited prior to the October 2019 surgery and that his ROM is at least the same as it was prior to the October 2019 surgery, on repetitive use as well as during flare ups which have resulted in functional loss due to pain. In addressing the Veteran's low back disability from September 2013, the start of the appeal period, the examiner opined based on the March 2015 examination the ROM including after repetitive use or during flare ups is forward flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally and rotation to 30 degrees bilaterally. In light of the foregoing, the Board finds that entitlement to a disability rating in excess of 20 percent for the period on appeal, beginning on September 4, 2013, is not warranted, as the preponderance of the evidence of record is against a finding that the Veteran's low back disability was productive of forward flexion of the lumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. While the Veteran has consistently reported radicular symptoms, service connection for radiculopathy of the right and left lower extremities was established as related to the Veteran's low back disability and rated separately under DC 8520 in April 2015 and February 2018 rating decisions, respectively. The Board also notes that, in this case, the Veteran would have no expectation that such ratings would be on appeal and the Board finds that the disability ratings assigned to these issues are not on appeal. Compare Chavis v. McDonough, No. 18-2928 (U.S. Vet. App. April 16, 2021) (finding that in some circumstances radiculopathy ratings are part of the underlying increased rating spine claim even if a separate notice of disagreement was not filed, but the Court specifically declined holding that in "all" cases neurological ratings are part and parcel of increased rating spine claims). Accordingly, the Board finds that the Veteran's disability picture is accurately reflected by the 20 percent disability rating, and that a rating in excess of 20 percent is not warranted. Further, although the Veteran was provided a diagnosis of IVDS, he was not noted to have any episodes due to IVDS requiring physician-prescribed bedrest; thus, the Board finds that a rating under the General Rating Formula for Diseases and Injuries of the Spine would be more advantageous for the Veteran. See 38 C.F.R. § 4.71a, DC 5242, Note (6). Accordingly, since the preponderance of the evidence of record is against a finding of a disability rating in excess of 20 percent being warranted for the Veteran's service-connected low back disability, his claim is denied. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis prior to January 8, 2019 (excluding the period of temporary total disability based on convalescence from June 12, 2018 to August 12, 2018), is remanded. Prior to January 8, 2019, the Veteran's combined disability rating was 70 percent from September 29, 2017 and 60 percent from February 29, 2016. The Veteran did not meet the schedular requirements for a TDIU prior to January 8, 2019. A TDIU rating cannot be assigned on a schedular basis. However, even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board cannot, in the first instance, award an extraschedular TDIU, but must remand the matter to VA's Director of Compensation Service for consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, based upon the Veteran's medical treatment history, employment history, and level of education, the Board finds the Veteran may have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to January 8, 2019. The Veteran has completed high school. He has a history of working in construction which requires extended periods of standing, climbing up and down ladders, working on his hands and knees and heavy lifting. During his May 2019 Board hearing, the Veteran testified that he got to a point where he could no longer do any of the physical things he needed to do, and he could not afford to pay everybody else to do it. See May 2019 Board hearing transcript, pg. 14. He testified that it had been about 10 to 12 years that he worked full time or at a level that was above the poverty level. Id at pg. 9. The March 2015 VA examiner found the Veteran's low back disability precludes him from laborious job lifting over 25 pounds. The June 2017 VA examiner found that the Veteran is unable to do anything beyond a sedentary occupation. In a November 2017 statement, the Veteran asserted that if he is upright for 10 to 15 minutes, he must sit or lie down to avoid collapse. He asserted that as a result he is unable to sustain any full time or part time gainful employment. The Board notes the Veteran does not have a history of or training in any type of sedentary employment. Therefore, consideration must be given to whether the Veteran is entitled to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to January 8, 2019 (excluding the period of temporary total disability based on convalescence from June 12, 2018 to August 12, 2018). Because the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance, a remand is required in order for the AOJ to submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: 1. Refer this case to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to January 8, 2019 (excluding the period of temporary total disability based on convalescence from June 12, 2018 to August 12, 2018). 2. After completing the above development and any other development deemed necessary, readjudicate the issue for extraschedular TDIU consideration for the period prior to January 8, 2019 (excluding the period of temporary total disability based on convalescence from June 12, 2018 to August 12, 2018). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.