Citation Nr: 21005272 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-09 188A DATE: February 1, 2021 ORDER Entitlement to service connection for a right knee disorder is denied. Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. Entitlement to an initial compensable evaluation for traumatic brain injury (TBI) is denied. REMANDED Entitlement to an initial compensable evaluation for depressive disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The current right knee disorder was not present in service, was not present to a compensable degree within one year of service discharge and was not shown to be casually related to service, to include the documented in-service hyperextension injury. 2. Bilateral hearing loss has been manifested by no more than Level I hearing acuity in the right ear and no more than Level I hearing acuity in the left ear. 3. The Veteran does not have any current residuals, symptoms, or impairment associated with his service-connected TBI. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2020). 3. The criteria for entitlement to an initial compensable evaluation for TBI have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1969 and from April 1982 to January 1991. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions rendered in February 2013, May 2013, and October 2017. In July 2018, the Board issued a decision which, in pertinent part, denied entitlement to an initial compensable rating for depressive disorder and remanded the initial rating claims for bilateral hearing loss and TBI as well as the service connection claim for a right knee disorder. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2019 Order, the Court granted a Joint Motion for Partial Remand, vacating the Board’s July 2018 decision with respect to the initial rating claim for depressive disorder and remanding the matter to the Board. In March 2020, the Board remanded initial rating claim for depressive disorder and entitlement to a TDIU for additional development. 1. Entitlement to service connection for a right knee disorder The Veteran asserts that his current right knee disorder was related to an injury during active service. He indicated that he hyperextended his right knee while doing physical training at Fort Bend and that it has worsened over the years, causing nagging pain. He has stated he did a lot of jumping and heavy lifting during his second period of active duty and ignored his right knee pain over the years. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records contained reports of examinations conducted in March 1982, March 1986, October 1986, December 1990, and June 1991 that revealed that the Veteran’s lower extremities were normal on clinical evaluation. In Reports of Medical Histories, dated at the time of the examinations, the Veteran denied a history of “trick” or locked knee; arthritis, rheumatism, or bursitis; and bone, joint, or other deformity. However, in a December 1990 Report of Medical History, the Veteran did endorse having swollen or painful joints and was noted to have had hyperextension of the right knee. Post-service medical evidence of record first showed complaints of right knee symptomatology in July 1992, over a year after the Veteran’s separation from active service in January 1991. In a July 1992 VA examination report, the Veteran reported a history of twisting or hyperextending his right knee years before. Normal gait was noted on physical examination. The Veteran indicated that he may get some stiffness occasionally while sitting. He denied any pain, weather intolerance, instability, locking, or swelling of the right knee. He took no medication and had not sought any medical care for the knee. The examiner concluded that there was insufficient clinical evidence to warrant a diagnosis. Additional post-service private and VA treatment records dated from 2004 showed findings of right knee degenerative joint disease, joint effusion, right knee joint pain, and meniscal tears. As an initial matter, there is no factual basis in the record that the current right knee disorder was incurred during service or manifested as a chronic disease within a year thereafter, or for years after his discharge from service in January 1991. Despite complaints of right knee stiffness in July 1992, evidence of record clearly reflects that any right knee arthritis was not manifested to a compensably disabling degree within the first year after the Veteran completed his active service in January 1991. The Board is cognizant that post-service medical evidence of record showed findings of a present right knee disorder. However, significantly, the record does not include any probative medical evidence or opinion suggesting a causal relationship between the Veteran’s claimed right knee disorder and his active military service. In an April 2013 VA examination report, the examiner listed diagnoses of right knee degenerative joint disease and history of right knee hyperextension injury, resolved without residuals. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale, it was noted that the Veteran was seen one time for an acute right knee injury during service and did not complain of the right knee at service discharge. While the April 2013 VA examination report was deemed inadequate because the examiner failed to discuss the July 1992 right knee complaints, an additional VA examination report/medical opinion was obtained in January 2020. The January 2020 VA examiner listed diagnoses of right knee degenerative arthritis and meniscal tear. The Veteran reported pain to right knee with prolonged standing and increased activity. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In the cited rationale, the examiner acknowledged the in-service notations concerning right knee hyperextension in 1990 as well as the post-service right knee stiffness complaints in July 1992. However, the examiner highlighted that no right knee diagnosis was given in the July 1992 VA examination report. Instead, the Veteran’s right knee examination was normal with no medications or medical treatment noted for the right knee. It was further indicated that the Veteran’s right knee meniscal tear arthroscopic surgery with degenerative arthritis was noted in 2004, over a decade after Veteran separated from service in 1991 as well as the Veteran’s subjective knee complaints of stiffness while sitting in 1992. The examiner concluded that the Veteran’s meniscal tear was likely related to some other injury that occurred after service separation with age-related degenerative changes, noting that September 2004 private treatment notes detailed complaints of right knee pain for the last year. The examiner concluded that there was no evidence linking the Veteran’s reports of hyperextended right knee in active duty service to his meniscal tear in 2004. Here, in the January 2020 VA examination report/medical opinion, the examiner specifically addressed the Veteran’s contentions that his claimed right knee disorder was causally related to in-service right knee findings, citing to a detailed review of the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and has sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Significantly, the Veteran has not presented, identified, or alluded to the existence of any medical opinion that directly contradicts the conclusions reached by the January 2020 VA examiner. The statements from the Veteran are competent evidence as to observable symptomatology, including pain and stiffness. See Barr, 21 Vet. App. at 307. However, the Board finds that the statements provided by the Veteran are not credible evidence to establish an onset in service or continuity of symptomatology from service, as they are not consistent with the contemporaneous evidence of record. For example, while the Veteran has asserted that his claimed disorder onset during and persisted since service, he clearly did not report any right knee complaints and was shown to be normal on clinical evaluation of the lower extremities in June 1991 just before separation. In addition, the statements that the Veteran’s claimed right knee disorder was a result of duties during active service draw medical conclusions, which the Veteran is not qualified to make. Although lay persons are competent to provide opinions on some medical issues, the etiology of the Veteran’s claimed right knee disorder falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. Moreover, the January 2020 VA examiner considered the Veteran’s lay assertions when providing the aforementioned medical opinion. Accordingly, the criteria to award entitlement to service connection for a right knee disorder have not been established, either through medical or probative lay evidence. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim of entitlement to service connection for a right knee disorder, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to an initial compensable evaluation for bilateral hearing loss The Veteran was awarded service connection and assigned an initial noncompensable rating for bilateral hearing loss under Diagnostic Code 6100, effective September 28, 2012. He seeks an initial compensable evaluation for his service-connected bilateral hearing loss during the appeal period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by Puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from service-connected bilateral hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI, VIA, and VII. Table VIA (Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average) is used to determine a Roman numeral designation for hearing impairment based only on Puretone threshold average. Table VIA is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Court has held that interpretation of a graphical audiogram is a finding of fact, to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translation by an appropriate specialist. Savage v. Shinseki, 24 Vet. App. 259, 270 (2011); see Kelly, 7 Vet. App. at 471; see e.g., Ponder v. Shinseki, No. 09-0881, 2010 WL 4241571, 2 (Oct. 28, 2010) (nonprecedential) (noting that Board’s failure to make factual findings by interpreting the audiograph resulted in the Board overlooking relevant audiometric data and was remandable error). A March 2012 private audiogram reveals the Veteran’s pure tone thresholds, in decibels, were interpreted as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 10 20 35 50 29 LEFT 15 20 50 50 34 Applying the results to Table VIA, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A January 2013 VA examination report reveals that the Veteran reported difficulty hearing soft sounds and understanding speech when there was background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 40 50 33 98% LEFT 15 20 50 50 34 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A November 2016 VA audiogram reveals the Veteran’s pure tone thresholds, in decibels, were interpreted as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 10 25 40 60 34 LEFT 15 25 50 60 38 Applying the results to Table VIA, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An October 2017 VA examination report reveals that the Veteran’s hearing loss did not impact ordinary conditions of his daily life. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 30 45 45 33 96% LEFT 10 30 55 65 40 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear into 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, an initial compensable rating for the Veteran’s bilateral hearing loss is not warranted during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including contentions of decreased hearing acuity. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to an initial compensable rating for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an initial compensable evaluation for TBI The Veteran seeks an initial compensable evaluation for his service-connected TBI residuals. The Veteran’s TBI residuals are rated under Diagnostic Code 8045, which provides for evaluation of cognitive impairment and other residuals of TBI not otherwise classified. The 10 facets of TBI rated under Diagnostic Code 8045 are memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. Each facet features criteria for rating impairment ranging from 0 to 3 and a total rating, except consciousness, which only has a total impairment rating. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2020). The Board has determined that the Veteran is not entitled to an initial compensable rating for TBI residuals based on the evidence of record. In a January 2013 VA TBI examination report, the VA examiner diagnosed TBI. The Veteran was not shown to have any impairment with memory, attention, concentration, or executive functions; social interaction; orientation; motor activity; or visual space orientation. Additionally, the examiner did not identify any subjective symptoms, neurobehavioral effects, other symptoms or residuals associated with TBI, or any functional impact on his ability to work. There was also normal communication and normal consciousness. The examiner found that the Veteran suffered a mild TBI in service with no neurologic residuals. The Veteran provided private treatment records reflecting treatment for dizziness, nausea, and vertigo in May 2017. The provider indicated that the Veteran had benign paroxysmal positional vertigo. A May 2017 brain MRI report revealed chronic small vessel ischemic disease and mild dolichoectasia of the left vertebral artery causing mild mass effect. In an October 2017 VA TBI examination report, the VA examiner concluded that the Veteran had no impairment in memory, attention, concentration, or executive functions; social interaction; orientation; motor activity; or visual space orientation. Additionally, the examiner stated that there were no subjective symptoms, no neurobehavioral effects, no residuals associated with TBI, no functional impact on his ability to work, normal communication, normal judgment, and normal consciousness. In an April 2019 VA TBI examination report, the Veteran asserted that the only symptom he related to his TBI was feeling stress and shutting down, which he reported that he has done after job changes and most recently while moving to Florida from Colorado with an ill spouse. The Veteran indicated that the stress of moving, retiring, and reported periods of stress were followed by shutting down and eventually coming out of it. The VA examiner concluded that the Veteran had no impairment in memory, attention, concentration, or executive functions; social interaction; orientation; motor activity; or visual space orientation. Additionally, the examiner stated that there were no subjective symptoms, no neurobehavioral effects, normal communication, and normal consciousness. In the cited rationale, the examiner indicated that he was not convinced the Veteran had a TBI in service from a minor motor vehicle accident with no immediate residuals and no current residuals of a brain injury. It was noted that the Veteran had one isolated episode of acute vertigo with chest pain in 2017 and underwent a head CT and brain MRI. There was no evidence of brain injury on those scans. Vertigo was diagnosed as being benign, positional, and resolved. It was further noted that the Veteran’s behavioral symptoms were variable throughout his lifetime and were not representative of a brain neurological injury. The Veteran spoke of being very detail-oriented, was likely has an above average intellect from conversational cues and was not reporting cognitive dysfunction. While the examiner acknowledged the Veteran’s reports of feeling overwhelmed by stress but found that it was not a reflection of cognitive dysfunction. The Veteran reported that he does not consider himself dumb, rather he was highly functional and capable with an engineering mind. The Veteran was noted to have no motor signs, no behavioral signs and no cognitive signs of brain injury, as well as no signs of residual TBI. The examiner concluded that the Veteran had no current nor past residuals of a TBI. In an additional July 2019 VA addendum medical opinion, the examiner detailed that the Veteran had no diagnosis, no symptoms of, nor any problem with his mental capabilities, impaired memory, impaired judgment, dizziness, insomnia, or fatigue. It was further noted that the Veteran’s diagnosed brain conditions of ischemic small vessel disease and mild dolichoectasia of left vertebral artery causing mild mass effect were not associated with brain injury. The examiner also found that the Veteran’s diagnosed sleep apnea was unrelated to TBI, but if untreated could cause insomnia and fatigue. It was also indicated that the Veteran’s dizziness, nausea, and vertigo were attributed to benign positional vertigo, an intermittent condition that was not related to TBI. In a January 2020 VA TBI examination report, the VA examiner concluded that the Veteran had no impairment in memory, attention, concentration, or executive functions; social interaction; orientation; motor activity; or visual space orientation. Additionally, the examiner stated that there were no subjective symptoms, no neurobehavioral effects, no additional residuals, no impact on his ability to work, normal communication, normal judgment, and normal consciousness. It was noted that the examiner was unable to differentiate TBI versus mental health symptoms without resorting to speculation, as it was very common for TBI and mental health symptoms to overlap. Parenthetically, the Board notes that the initial rating claim for the Veteran’s service-connected depressive disorder (found to be directly related to military service) has been remanded for additional development. In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Based on the foregoing evidence and the extended discussion contained in the above April 2019, July 2019, and January 2020 VA examination reports/medical opinions, there is no basis for the assignment of an initial compensable rating under Diagnostic Code 8045 or any other diagnostic code. Evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected TBI residuals varied to such an extent that a rating greater than the initial noncompensable rating currently assigned would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as feeling overwhelmed by stress. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The statements from the Veteran are competent evidence to report his increased TBI symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). However, the more probative evidence of record does not indicate that the assignment of an initial compensable evaluation is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds opinions rendered by VA medical professionals more probative given their expertise in evaluating and identifying TBI residuals. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran’s service-connected TBI residuals do not meet the applicable criteria for an initial compensable evaluation. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s initial rating claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to an initial compensable evaluation for depressive disorder is remanded. 2. Entitlement to a TDIU is remanded. As an initial matter, a VA Form 21-4192 (Request for Employment Information) was received in April 2020; however, this form is incomplete. The AOJ should follow-up with the Veteran and his prior employer (T-Mobile USA) and ensure a completed VA Form 21-4192 is obtained. Based on the cumulative evidence of record, the Board finds that a VA examination to clarify the effects of the Veteran’s service-connected disabilities, alone or in aggregate, on his ability to obtain and maintain substantially gainful employment consistent with his education and occupational experience during the time period from September 2012, is necessary to effectively adjudicate the TDIU claim on appeal. As such, the Board finds that a remand is warranted in order to afford the Veteran an additional VA examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the record before the Board contains insufficient medical information for evaluation purposes). As the Veteran’s combined evaluation was less than 70 percent, he did not meet the preliminary schedular criteria for entitlement to a TDIU during the appeal period. 38 C.F.R. § 4.16(a). When the percentage requirements set forth in 38 C.F.R. § 4.16(a) are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability, and consideration is given to the veteran’s background including his employment and educational history. Such cases should be referred to the Director of Compensation and Pension (C&P) Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). After the above development is completed, the AOJ must consider whether referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) is warranted. Finally, as development affecting the TDIU issue may have an impact on assessing the occupational impairment factor in rating the Veteran’s service-connected depressive disorder, the issues are inextricably intertwined and a remand of the initial rating claim for depressive disorder is required. The matters are REMANDED for the following actions: 1. Obtain a completed VA Form 21-4192 (Request for Employment Information) from T-Mobile USA. 2. Obtain a VA medical examination to determine whether the functional effects of the Veteran’s service-connected disabilities, alone or acting in concert, preclude him from securing and following substantially gainful employment, consistent with his education and occupational expertise for the time period from September 2012. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must compile a full work and educational history. Following a thorough review of all pertinent medical records and the lay statements of record, the examiner must provide an opinion as to whether the functional effects of the Veteran’s service-connected disabilities, acting alone or in concert, prevented him from obtaining or retaining employment consistent with his education and occupational experience during the time period from September 2012. This opinion must be provided without consideration of his nonservice-connected disabilities or age. To the extent possible, the VA examiner must address the degree of functional and industrial impairment due to each of the Veteran’s service-connected disabilities during the time period from September 2012. The examiner must furnish a full description of the effects of the service-connected disabilities upon the Veteran’s ordinary activities, which include employment. 38 C.F.R. § 4.10 (2020). This description may include an opinion on such questions as whether the Veteran’s service-connected disabilities precluded standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, performing other specific tasks, etc. The examiner should also discuss and reconcile the proffered medical opinion with the VA examination findings as well as VA and private treatment records dated from September 2012 to the present. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2020). 3. 3. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the July 2020 SSOC. The AOJ should also consider whether referral to VA’s Director of C&P for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) is warranted for the issue of entitlement to a TDIU. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.