Citation Nr: 21072855 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 16-41 133 DATE: December 6, 2021 ORDER Service connection for a left knee condition is granted, subject to the laws and regulations governing the award of VA monetary benefits. Service connection for a lumbar spine condition, as secondary to the left knee condition, is granted, subject to the laws and regulations governing the award of VA monetary benefits. Service connection for bilateral lower extremity neurologic impairment, diagnosed as radiculopathy, as secondary to the lumbar spine condition is granted, subject to the laws and regulations governing the award of VA monetary benefits. A rating in excess of 20 percent for a left shoulder disability, prior to January 10, 2020, is denied. A rating of 30 percent disabling, but no greater, for a left shoulder disability beginning January 10, 2020 is granted, subject to the laws and regulations governing the award of VA monetary benefits. REMANDED A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The weight of the evidence supports finding that the Veteran's left knee condition is directly related to his active-duty service. 2. The weight of the evidence supports finding that the Veteran's lumbar spine condition is proximately related to his left knee condition. 3. The weight of the evidence supports finding that the Veteran's bilateral lower extremity radiculopathy is proximately related to his lumbar spine disability. 4. Prior to January 10, 2020, and despite pain, the Veteran's left (dominant) shoulder disability was not shown to result in range of motion being functionally limited to midway between the side and shoulder level, or worse. 5. From January 10, 2020, forward, and despite pain, the Veteran's left shoulder disability was not shown to cause a limitation of motion to 25 degrees from side. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a lumbar spine condition, as secondary to the left knee condition, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for radiculopathy of the bilateral lower extremities, as secondary to the lumbar spine condition, have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria a rating in excess of 20 percent for a left shoulder disability, prior to January 10, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 5. The criteria for a rating in excess of 30 percent for a left shoulder disability, from January 10, 2020, forward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to December 1987. This appeal was previously before the Board in September 2019. The increased rating claim for the left shoulder disability, the claim for a TDIU, and the service connection claims for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a left knee disability, a lumbar spine condition, and bilateral sciatica of the lower extremities were remanded for further development. After the Board's September 2019 remand, a March 2020 rating decision granted the Veteran's claim for service connection for PTSD. The grant of service connection for PTSD is considered a full grant of benefits sought on appeal and the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for a left knee condition is granted. The Veteran asserts that his left knee condition is due to his active-duty service. He also asserts that the lumbar spine condition is secondary to the left knee condition and that the bilateral sciatica of the lower extremities is secondary to the lumbar spine condition. A review of the Veteran's service treatment records shows numerous complaints of left knee pain. An October 1982 record noted his report that he fell on his left knee when playing football. The medical officer noted tenderness on palpation of the left knee and assessed the Veteran as having a soft tissue injury. In a November 1986 record, the Veteran also complained of his knee buckling and continuing pain. A review of the Veteran's post-service treatment records shows a diagnosis of left knee arthritis. As such, the Board recognizes that the Veteran has a current diagnosis for a left knee condition. Thus, the question is whether an in-service injury, illness, or event caused the Veteran's left knee condition. These issues were previously before the Board in September 2019. The Board decision noted that a June 1995 rating decision denied the service connection claim for a left knee condition. The regional office (RO) did not reopen the Veteran's claim for a left knee condition at any point after the final decision, and therefore, the RO did not address the service connection claim on the merits, prior to its certification to the Board. The Veteran did not waive his right to RO adjudication and the Board remanded the issue so that the RO could adjudicate the issue on the merits. Given the nature of the service connection claims, notably that the Veteran was asserting secondary service connection, the Board found that the service connection claims for the lumbar spine condition and the bilateral lower extremity radiculopathy were inextricably intertwined and remanded those claims as well. The Veteran provided a medical opinion from a private physician. The physician noted the in-service 1982 football injury to the left knee and the November 1986 incident, when his knee buckled. The examiner reported that the Veteran's in-service injuries, in conjunction with the physical burdens of military training and duties are the most likely cause of his current knee disability. The examiner explained that his injuries and the physical demands of the military added physical stress on the joint, muscles, ligaments, and tendons, which resulted in the current left knee disability. The Veteran was afforded a VA examination in November 2015. The Veteran reported that he first injured his left knee in 1982, while playing football. He also reported that he injured his left knee a few other times during his active-duty service. He indicated that he had arthroscopic knee surgery in 1986. He also reported that shortly after his discharge, in 1988, his knee gave out and had knee surgery. After an in-person examination and a review of the claims file, the examiner provided a negative nexus opinion. The examiner acknowledged the Veteran's STRs, which showed in-service complaints of left knee pain. The examiner also noted the 1986 left knee surgery, and the subsequent surgery. The examiner explained that there was no evidence of a chronic left knee condition during his active-duty service. The examiner also pointed to the fact that the Veteran had additional left knee surgery after his separation from the military and was diagnosed with arthritis over 20 years later. The examiner acknowledged the private physician's medical opinion, but noted that it did not change VA examiner's opinion as stated. Here, there are two competent medical opinions of record, the positive one provided by the private physician in October 2013 and the negative one provided by the November 2015 VA examiner. To that end, the VA examiner pointed out that the Medical Board documentation, on which he asserted the private provider relied, was clearly written for an unrelated left shoulder condition and was silent for a left knee condition. However, a review of the private physician's medical opinion does not show that he relied on a Medical Board related to the Veteran's left knee, in providing the medical opinion. Instead, the private physician based their positive nexus opinion on the Veteran's STRs, which showed numerous complaints of left knee symptoms, coupled with the physical demands of military service and training. Here, the Board affords the private physician's positive nexus opinion probative weight because he was able to review the Veteran's claims file and provided a sufficient rationale to support his opinion. On the other hand, the Board affords the VA examiner's opinion less probative weight because although she acknowledged the Veteran's STRs, which showed numerous complaints of left knee pain, she did not explain how those complaints impacted the medical opinion. The examiner simply relied on the fact that the Veteran had a left knee surgery post-service and was diagnosed with left knee arthritis 20 years after his separation for the negative nexus opinion. The VA examiner did not provide a rationale as to why those findings led to a negative nexus opinion. With evidence of inservice treatment for a left knee condition, a currently diagnosed left knee disability, and a positive nexus opinion from his private provider that the Board has found to outweigh the November 2015 VA examiner's negative nexus opinion, the Board finds that service connection for a left knee condition is warranted. 2. Service connection for a lumbar spine condition, to include as secondary to a left knee condition, is granted. 3. Service connection for radiculopathy of the bilateral lower extremities, to include as secondary to a lumbar spine condition, is granted. The Veteran asserts that his lumbar spine disability is due to his left knee disability. A review of the Veteran's post-service medical records shows that a January 2018 VA treatment record reflects a diagnosis of mild degenerative arthritis of the lumbar spine. As such, the Board recognizes that the Veteran has a current diagnosis for a lumbar spine disability. The October 2013 private examination report also contained a positive nexus for the lumbar spine condition. The physician noted that his post-service medical records indicated that the Veteran ambulated slowly with a limp, due to left knee pain. The physician also noted that the Veteran was noted to wear a knee brace, which helped his mobility. The physician reported that the Veteran's left knee condition caused him to develop an altered gait, which resulted in excessive wear and tear on his lumbar spine muscles, ligaments, vertebrae, and discs, which resulted in chronic lumbar strains and sprains, which ultimately caused degenerative disc disease in the lumbar spine. Here, the Board finds that service connection on a secondary basis, for a lumbar spine condition, is warranted. The Veteran has shown a current diagnosis for degenerative arthritis of the lumbar spine; this Board decision granted service connection for the left knee condition, and the private explained that the Veteran's left knee condition caused him to have an altered gait, which led to the Veteran's current lumbar spine arthritis. This opinion is probative, as it explores the Veteran's medical history and provides a rationale for the nexus opinion stated. Accordingly, the Board finds that service connection for a lumbar spine condition, as secondary to the service-connected left knee condition, is warranted. To that end, the Veteran asserts that his lumbar spine condition has resulted in bilateral lower extremity radiculopathy. A September 2020 VA treatment record reflects this diagnosis. The October 2013 private examination report also contained a positive nexus for the bilateral lower extremity radiculopathy. The physician reported that the Veteran had developed radiculopathy in both of his lower extremities. The physician explained that the left knee condition caused an altered gait, which caused the lumbar spine condition, which then caused him to develop bilateral lower extremity radiculopathy. This opinion is probative, as it explores the Veteran's medical history and provides a rationale for the nexus opinion stated. The Veteran has shown a current diagnosis for chronic lumbar radiculopathy, and service connection for a lumbar spine condition is granted elsewhere in this decision. Moreover, a probative, favorable medical nexus opinion connecting the radiculopathy to the lumbar spine condition is of record. Accordingly, service connection for bilateral lower extremity radiculopathy, as secondary to the service-connected lumbar spine condition, is warranted. Increased Rating The Veteran asserts that he is entitled to a higher rating for his service-connected left shoulder disability. The rating for this current appeal period, which began on May 6, 2011 when the Veteran filed a claim for increase, is currently staged. Specifically, a 20 percent rating is in effect prior to January 10, 2020, and a 30 percent rating in effect beginning that date. The Board will address whether a higher rating is warranted for the entire appeal period. The Veteran's left shoulder disability is currently rated under Diagnostic Code 5201 based on limitation of motion. The Veteran is left-handed, which means that his left shoulder is considered to be his dominant shoulder. On February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Here, the amendments to the rating schedule do not have any retroactive application. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied from February 7, 2021. Prior to February 7, 2021, for the dominant shoulder, Diagnostic Code 5201 directed that a 20 percent rating is assigned for limitation of motion to shoulder level. A 30 percent rating was assigned for limitation of motion to midway between side and shoulder level. A 40 percent rating was assigned for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Normal range of motion of the shoulder is flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under the revised rating criteria, Diagnostic Code 5201 provides that, for the dominant shoulder, a 20 percent rating is assigned for limitation of motion to shoulder level (flexion and/or abduction limited to 90 degrees). A 30 percent rating is assigned for limitation of motion to midway between side and shoulder level (flexion and/or abduction limited to 45 degrees). A 40 percent rating is assigned for limitation of flexion and/or abduction to 25 degrees from side. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Thus, the revised rating criteria are less a change and more a clarification, providing more objective markers for each of the ratings. While the regulations in effect at the time the Veteran filed his claim did not include specific range of motion limitations, the revisions were intended to be consistent with VA practice. That is, it has traditionally been assumed that shoulder level is consistent with 90 degrees. 4. A rating in excess of 20 percent for a left shoulder disability, prior to January 10, 2020, is denied. This issue was previously before the Board in September 2019. The Board pointed out that the Veteran was afforded a VA examination in August 2018. The VA examiner noted that the Veteran was unable to do more than one set of repetitive range of motion testing and noted that range of motion due to flare-ups were unable to be described. However, the September 2019 Board decision found that the August 2018 VA examiner failed to elicit relevant information as to the Veteran's flare-ups or ask him to describe the additional functional loss, if any, suffered during flare-ups. The Board decision remanded the issue for further development, to include conducting a new VA examination to assess the severity of the Veteran's left shoulder, and also to elicit relevant information as to the Veteran's flare-ups and to estimate his functional loss due to flare-ups. The Veteran was afforded a VA examination in August 2018. The Board acknowledges that the September 2019 Board decision found this examination to be inadequate because the examiner did not properly address the Veteran's flare-ups. However, the Board nonetheless finds the range of motion testing to be informative in the adjudication of this issue. On examination, the Veteran's left shoulder showed abduction limited to 92 degrees and forward flexion limited to 80 degrees; and showed external rotation to 86 degrees and internal rotation to 90 degrees. There was objective evidence of pain on examination in abduction and external rotation. The examiner indicated that the Veteran had a limitation in lifting and overhead reaching. The Veteran was not able to perform repetitive use testing because he had severe pain. Muscle strength testing showed 4/5 strength for both forward flexion and abduction. There was no evidence of atrophy, ankylosis, impairment of the clavicle or scapula, or impairment of the humerus. A review of the Veteran's post-service treatment records shows complaints and treatment for the left shoulder disability. However, they do not show left shoulder symptoms that were worse than those revealed by the August 2018 VA examination, or otherwise show any range of motion testing that would warrant a rating in excess of 20 percent, during this period on appeal. Here, the evidence of record shows that prior to January 10, 2020, the range of motion of the Veteran's left shoulder had not shown to be functionally limited to lower than the midway between the side and shoulder level (45 degrees), which is required by a 30 percent or a higher rating. The August 2018 VA examination showed that the Veteran could move his right arm well above the midway between the side and shoulder level. As such, a rating in excess of 20 percent is not warranted based on range of motion. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a 20 percent rating for his left shoulder during this period, and the clinical evidence has not shown that pain, weakness or other symptoms has effectively functionally limited the range of motion in the Veteran's left shoulder to midway between his side and shoulder level as would be required for the assignment of a 30 percent rating. As such, a rating in excess of 20 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45. Other Diagnostic Codes related to the shoulder and arm were considered, but none were applicable to the Veteran's disability as there was no impairment of the humerus, clavicle or scapula and no showing of ankylosis. 38 C.F.R. § 4.71, Diagnostic Codes 5200, 5202, 5203. 5. A rating in excess of 30 percent for a left shoulder disability, from January 10, 2020, forward, is denied. As noted above, a March 2020 rating decision granted an increased rating to 30 percent, effective January 10, 2020, the date of the VA examination that showed the increase was warranted. Specifically, in the January 2020 VA examination report, the Veteran reported flare-ups and described that he does not have to do anything to aggravate his left shoulder. He reported that his left shoulder would occasionally seize up on him. He also reported that during flare-ups, his range of motion is less than half the usual range of motion. The Veteran reported that repetitive use makes his shoulder condition worse. On examination, he showed flexion to 70 degrees, abduction to 60 degrees, external rotation to 30 degrees, and internal rotation to 30 degrees. There was pain noted on examination, in all planes of motion. There was also evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing, but caused his flexion to be limited to 45 degrees, abduction to 45 degrees, and external and internal rotation to 30 degrees. Regarding both repetitive use over time and flare-ups, the examiner declined to provide any estimate because he reported that no one has ever measured his range of motion during repetitive use over time or during a flare-up and reproducing similar conditions would place the Veteran at risk of further injury. The examiner explained that examiners should not be asked to guess what a person's range of motion is at a time that no one is measuring it. Muscle strength testing showed 4/5 strength in flexion and abduction. There was no evidence of atrophy, ankylosis, malunion, nonunion, or dislocation of the clavicle or scapular, or impairment of the humerus. Correia testing showed pain with weight-bearing and pain with non-weight-bearing. Correia vs. McDonald, 28 Vet. App. 158 (2016). Here, the Board finds that the January 2020 VA examiner conducted an examination that met the requirements of Correia. The examiner rendered specific findings as to objective evidence of pain on motion, and addressed the Veteran's reported flare-ups and repetitive use over time. As such, the Board finds that there has been substantial compliance with the September 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in December 2020. The Veteran reported shoulder pain and loss of range of motion. The Veteran reported having flare-ups and described worsening pain with repetitive use. The Veteran reported having functional loss and described not being able to lift anything heavy above shoulder level or overhead. He also reported discomfort when trying to lift his arm. On examination, he showed flexion to 80 degrees, abduction to 85 degrees, external rotation to 35 degrees, and internal rotation to 45 degrees. There was pain noted on examination, in all planes of motion. There was also evidence of pain with weight-bearing. The Veteran was able to perform repetitive use testing and did not result in any additional loss, in terms of range of motion. The examiner indicated that the examination did not take place immediately after repetitive use over time, or during a flare-up, but provided estimations. Regarding repetitive use over time, the examiner opined that his flexion would be limited to 60 degrees, abduction to 60 degrees, external rotation to 20 degrees, and internal rotation to 20 degrees. Regarding flare-ups, the examiner opined that his flexion would be limited to 30 degrees, abduction to 30 degrees, and external and internal rotation to 15 degrees. Muscle strength testing showed 4/5 strength in flexion and abduction. There was no evidence of atrophy, ankylosis, impairment of the clavicle or scapular, or impairment of the humerus. A review of the Veteran's post-service treatment records shows complaints and treatment for the left shoulder disability. However, they do not show left shoulder symptoms that were worse than those revealed by the January 2020 and December 2020 VA examinations, or otherwise show any range of motion testing that would warrant a rating in excess of 30 percent, during this period on appeal. Here, the evidence of record shows that from January 10, 2020, forward, the range of motion of the Veteran's left shoulder had not shown to be functionally limited to 25 degrees from the side. At worst, he showed a limitation of flexion to 45 degrees and abduction to 45 degrees after repetitive use at the January 2020 VA examination. The December 2020 VA examiner also opined that the Veteran would be limited to 30 degrees of flexion and abduction, during a flare-up. Further, the Board has also considered the Veteran's assertion at the January 2020 VA examination, that he would lose half of his range of motion during a flare-up. On examination, he showed flexion to 70 degrees and abduction to 60 degrees; and taking into account his estimation, range of motion would be limited to 35 degrees of flexion and 30 degrees of abduction, neither of which show a functional limitation to 25 degrees from the side. Here, the clinical evidence of record, even in consideration of repetitive use over time, flare-ups, and the Veteran's own assertions, does not show left shoulder limitation to 25 degrees from the side. As such, a rating in excess of 30 percent is not warranted based on range of motion, during this period on appeal. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a 30 percent rating for his left shoulder during this period, and the clinical evidence has not shown that pain, weakness or other symptoms has effectively functionally limited the range of motion in the Veteran's left shoulder to 25 degrees from the side. As such, a rating in excess of 30 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45. Other Diagnostic Codes related to the shoulder and arm were considered, but none were applicable to the Veteran's disability as there was no impairment of the humerus, evidence of malunion, nonunion or dislocation of the clavicle or scapula, and no showing of ankylosis. The Board has also considered the new regulation effective February 7, 2021. The new regulation does not change the rating criteria under Diagnostic Code 5201, or the rating criteria under Diagnostic Codes 5200 or the rating criteria for the 50, 60, and 80 percent ratings under Diagnostic Code 5202. As such, the new regulation does not affect the evolution of a rating in excess of 30 percent for the left shoulder disability. The Board is sympathetic towards the Veteran's increased rating claim, and acknowledges that the left shoulder disability does cause him pain and considerable impairment, as shown by his decreased range of motion; indeed, his assertions that his left shoulder condition has progressed over the years are credible. However, as discussed, the clinical findings of record do not warrant an increase of the assigned ratings. The Board is nonetheless bound by the statutes enacted by Congress and VA regulation, and as a result of their application, the Board must find that a rating in excess of 30 percent for a left shoulder disability beginning January 10, 2020 is not warranted. 6. TDIU is remanded. The Veteran asserts that he is entitled to TDIU. Specifically, he reported in his July 2012 statement that after VA properly adjudicated the issues he had on appeal, he would be found to be unemployable. However, the Veteran does not meet the schedular requirements for TDIU, prior to January 14, 2020, when he had multiple service-connected disabilities, but none were rated at 40 percent or more; and his combined rating does not reach 70 percent. 38 C.F.R. § 4.16 (a). The Veteran's claims file contains a Counseling Record Narrative Report from April 2016. The Veteran's vocational rehabilitation counselor reported that the Veteran met the criteria for an employment handicap because his service-connected disabilities contributed in substantial part to the vocational impairment and the individual had not overcome the effects of the impairment through further education, transferable skills, or obtaining or maintaining suitable work. The counselor also indicated that the Veteran met the criteria for serious employment handicap. The counselor also reported that the Veteran lacked the education and training to compete for employment within his disability restrictions. The Veteran does not meet the schedular threshold for a TDIU contained in 38 C.F.R. § 4.16 (a). Thus, a TDIU may only be assigned on an extraschedular basis. 38 C.F.R. § 4.16 (b). The Board cannot award a TDIU rating under 38 C.F.R. § 4.16 (b) in the first instance, as that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Therefore, the Board finds that remand is necessary. The Board does acknowledge that the Veteran's disability ratings meet the criteria for a TDIU from January 14, 2020, forward. However, the Board notes that the Veteran has an increased rating claim and a service connection claim on appeal, with the appeal period starting prior to January 14, 2020. Given that those appeals may have an impact on the date the Veteran meets the schedular criteria for a TDIU, the Board finds that both periods on appeal should be remanded. The matter is REMANDED for the following action: 1. Refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether the Veteran's disability picture warrants the assignment of a TDIU, on an extraschedular basis. Associate the Director's memorandum response with the Veteran's claims file. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.