Citation Nr: 21006880 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 20-12 865 DATE: February 5, 2021 ORDER Entitlement to a disability rating in excess of 60 percent for right knee arthritis and cartilage loss, due to trauma, from June 1, 2005, is dismissed. Entitlement to an earlier effective date for the award of a 100 percent increased disability rating prior to January 10, 2018 for bilateral hearing loss is denied. Entitlement to an earlier effective date, prior to January 10, 2018, for the grant of special monthly compensation (SMC) based on loss of use of hearing is denied. Entitlement to an earlier effective for the grant of entitlement to service connection for tinnitus, prior to January 10, 2018, is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is denied. REMANDED Entitlement to an earlier effective date prior to June 1, 2005 for the grant of a total disability rating based on unemployability due to service-connected disabilities (TDIU), excluding a period of a total rating based on total right knee replacement, is remanded. Entitlement to an earlier effective date prior to June 1, 2005 for the grant of Dependents' Educational Assistance (DEA) is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the June 2018 Board decision that denied entitlement to a disability rating in excess of 60 percent for right knee arthritis and cartilage loss, due to trauma, from June 1, 2005; therefore, the June 2018 Board decision became final. 2. The Veteran submitted a request for an increased rating for service-connected bilateral hearing loss on January 10, 2018, and there is no indication of an ascertainable worsening that occurred in the prior year. 3. No communication or evidence was received prior to January 10, 2018 which could be interpreted as an informal or formal claim of entitlement to service connection for tinnitus. 4. The Veteran’s service-connected tinnitus is assigned a 10 percent evaluation, the maximum schedular evaluation authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to a disability rating in excess of 60 percent for right knee arthritis and cartilage loss, due to trauma, from June 1, 2005, have been met. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.201, 20.1100. 2. The criteria for entitlement to an earlier effective date for the award of a 100 percent increased disability rating, prior to January 10, 2018, for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an earlier effective date, prior to January 10, 2018, for the grant of SMC based on loss of use of hearing, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an earlier effective for the grant of entitlement to service connection for tinnitus, prior to January 10, 2018, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1943 to January 1946. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2018 (tinnitus), February 2018 (bilateral hearing loss, SMC, DEA), and October 2018 (Right knee, TDIU, DEA) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the RO, in the October 2018 rating decision also awarded the Veteran an earlier effective date to June 1, 2005, for the award of DEA. The Board last remanded the issue of entitlement to a TDIU in June 2018. Specifically, the Board requested the RO to obtain a VA Form 21-8940 from the Veteran and provide the Veteran with an opportunity to submit any other evidence to support his claim for a TDIU. A VA Form 21-8940 was received by the RO in July 2018. As such, a review of the record shows substantial compliance with the Board’s remand directives with respect to this issue. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the Board finds remand is necessary as discussed below and has recharacterized the claim as shown on the title page of this decision. In May 2020 and June 2020 letters, the Board granted the Veteran’s representative a 90-day extension, pursuant to a May 5, 2020 extension request, to submit additional evidence. That 90-day extension has expired. On June 1, 2020, the Veteran’s representative requested a second 90-day extension from August 4, 2020 to November 2020. In August 2020, the Veteran’s representative submitted additional evidence related to the Veteran’s tinnitus claims. In November 2020, the Board notified the Veteran and his representative that his June 2020 extension request has expired and requested whether the Veteran needed additional time to submit evidence. To date, no response has been received, and, as noted, the prior June 2020 extension requested has expired and the Board received additional evidence in August 2020. As such, the Board will proceed with adjudication of the pending claims. The Board further acknowledges that, in August 2020, the Veteran’s representative submitted additional evidence related to his tinnitus claims. Under 38 U.S.C. § 7105(e), for substantive appeals received on or after February 2, 2013, a waiver of RO review is not required for new pertinent evidence that is submitted by the appellant or representative, and the Board may proceed with adjudication and consideration of the new evidence in the first instance. The Veteran’s substantive appeal was received after February 2, 2013, in November 2019. Therefore, a waiver of RO review is not required, and the Board may consider the additional evidence submitted by the Veteran’s representative in the first instance. 38 U.S.C. § 7105(e)(1); 38 C.F.R. § 20.1305(c). Entitlement to a disability rating in excess of 60 percent for right knee arthritis and cartilage loss, due to trauma, from June 1, 2005, is dismissed. In June 2018, the Board denied entitlement to a disability rating in excess of 60 percent for right knee arthritis and cartilage loss, due to trauma, from June 1, 2005. Board decisions are final when issued unless reconsideration has been requested or upon review by the U.S. Court of Appeals for Veterans Claims (Court). See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A review of the record reflects that the Veteran abandoned his appeal at the Court with respect to this issue and the Court dismissed his appeal. See September 2019 Court Order. The Veteran, nor his representative, requested reconsideration of the Board’s June 2018 denial. In October 2018, the RO provided the Veteran and his representative with a rating decision implementing part of the Board’s June 2018 decision. The Board considered whether the Veteran’s Notice of Disagreement (NOD) received in June 2019 could be construed as a motion for reconsideration of the June 2018 Board decision. However, the June 2018 Board decision is final and not subject to review by the RO. The Veteran, nor his representative, can challenge the merits of the Board’s June 2018 decision by expressing disagreement with the RO’s implementing decision. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided). Additionally, the Veteran’s representative specifically indicates disagreement with the October 2018 rating decision, identified by a November 2018 notification letter. See June 2019 NOD. Further, a motion for reconsideration must be in writing and must include: (1) the name of the veteran; (2) the applicable VA file number, and (3) the date of the Board’s decision to be reconsidered. 38 C.F.R. § 20.1001(a); Kouvaris v. Shinseki, 22 Vet. App. 377 (2009). A request for reconsideration must also set forth the alleged obvious error of fact or law in the applicable decision of the Board, or other appropriate basis for requesting reconsideration. Id. The NOD at issue here does not meet any of these requirements as it specifically disagrees with the rating decision that implemented the Board’s June 2018 decision, not the Board’s decision. In sum, the June 2018 Board decision is final since the Court dismissed the Veteran’s appeal. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The implementing rating decision is not subject to review by the RO, and the Veteran, nor his representative, requested reconsideration of the Board’s June 2018 decision. Accordingly, the issue of entitlement to rating in excess of 60 percent for right knee arthritis and cartilage loss, due to trauma, from June 1, 2005, is dismissed. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). Entitlement to an earlier effective date for the award of a 100 percent increased disability rating prior to January 10, 2018 for bilateral hearing loss. Entitlement to an earlier effective date prior to January 10, 2018 for the grant of SMC based on loss of use of hearing. The Veteran, through his representative, asserts that he is entitled to earlier effective dates, prior to January 10, 2018, for the award of an increased 100 percent rating for service-connected bilateral hearing loss and the award of SMC based on loss of use of hearing. See November 2018 NOD. Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. See 38 C.F.R. § 3.400(o)(2). For this purpose, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). The Board finds that an effective date earlier than January 10, 2018 is not warranted for the increased rating awarded for the Veteran’s bilateral hearing loss in the October 2018 rating decision. The Veteran most recently submitted an increased rating for his service-connected bilateral hearing loss on January 10, 2018. The increased rating awarded was based on the findings of worsening at a February 2018 VA examination. Neither the Veteran, nor his representative, have articulated any reason why the he believes his increased rating should be effective prior to the January 10, 2018 date he filed his claim. Additionally, the evidence of record does not indicate an ascertainable worsening that occurred in the year prior to receipt of the Veteran’s claim for an increased rating. Specifically, VA treatment records do not indicate a worsening of the Veteran’s bilateral hearing loss in the year prior to January 10, 2018. Though the Veteran’s representative provided a May 2015 audiogram, it does not indicate a worsening of the Veteran’s bilateral hearing loss within the year prior to January 10, 2018 to warrant an earlier effective date for the award of an increased rating to 100 percent disabling. As such, there is no evidence of record that indicates an ascertainable worsening that occurred in the year prior to receipt of the Veteran’s claim for an increased rating for his bilateral hearing loss. For these reasons, the Board finds that an effective date earlier than January 10, 2018, is not warranted for an increased rating for his service-connected bilateral hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted, the RO also granted the Veteran SMC based on deafness of both ears under 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350 effective the same date the Veteran was awarded a 100 percent increased disability rating for his bilateral hearing loss, January 10, 2018. The issue of entitlement to an earlier effective date for SMC will be taken together with the claim for entitlement to an increased rating for bilateral hearing loss. The Board finds that based on the review of the record, there is no basis for assignment of an effective date earlier than January 10, 2018 for the award of SMC. As discussed above, there is no evidence of record to factually ascertain a worsening of the Veteran’s bilateral hearing loss that warranted an increased 100 percent rating for bilateral hearing loss at any time within the year prior to January 10, 2018. Additionally, the Veteran, nor his representative, has articulated any reason he believes an earlier effective date is warranted. As such, the Board finds that an earlier effective date for the assignment of SMC based on deafness of both ears, prior to January 10, 2018, is not warranted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. Entitlement to an earlier effective for the grant of entitlement to service connection for tinnitus. The Veteran, through his representative, asserts that he is entitled to an effective date earlier that January 10, 2018 for the grant of service connection for tinnitus. See October 2018 NOD. The RO granted the Veteran service connection for tinnitus based on a February 2018 VA examination conducted in relation to the Veteran’s claim to entitlement to an increased rating for bilateral hearing loss received on January 10, 2018. An effective date of an award of a service connection claim, including a claim reopened after a final disallowance, is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance, “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400. The Board finds that the appropriate effective date has been assigned by the RO. In making this determination, the Board notes that there was no formal or informal claim to service connection for tinnitus received by the Board at any time prior to January 10, 2018. Additionally, the Veteran, nor his representative, asserts that such a claim was submitted at any time prior to January 10, 2018. See 38 C.F.R. § 3.157; see also 38 C.F.R. § 3.155 (discussing informal claims submitted prior to March 24, 2015). Rather, the record demonstrates the Veteran only submitted a formal claim for an increased rating for his service-connected bilateral hearing loss on January 10, 2018. Moreover, the medical evidence associated with the claims file that first demonstrates a complaint for tinnitus was at the February 2018 VA examination. The Veteran did not report any date prior to January 10, 2018 regarding the onset of his tinnitus. See February 2018 VA examination. Prior to January 10, 2018, VA treatment records and private medical treatment records do not contain any complaints or treatment for tinnitus. At a July 2003 VA Audiology examination, the Veteran specifically denied the presence of tinnitus. As there was no objective evidence of treatment for tinnitus or any other formal or informal communication from the Veteran that may be interpreted as an application or claim for service connection prior to January 10, 2018, there was no basis for the VA to grant an effective date for service connection to any date prior to January 10, 2018. Additionally, neither the Veteran, nor his representative, have articulated any reason why the he believes service connection for tinnitus should be effective prior to the January 10, 2018 date he filed his claim for an increased rating for bilateral hearing loss. As the Veteran did not demonstrate tinnitus until the February 2018 VA examination, the RO assigned the earliest effective date for the grant of service connection for the Veteran’s tinnitus. There is no basis in VA law or regulations to grant an earlier effective date for the grant of service connection, prior to January 10, 2018, for the Veteran’s tinnitus. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date, that doctrine is not applicable. 38 U.S.C. § 5107(b); 39 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus. The Veteran, through his representative, asserts that he is entitled to an initial disability rating in excess of 10 percent for service-connected tinnitus. See October 2018 NOD. Disability ratings are determined by the application of a Schedule of Ratings (Schedule) that is based on the average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 C.F.R., Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Service connection for tinnitus was granted by an April 2018 rating decision, with an assigned initial 10 percent rating effective January 10, 2018. The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, DC 6260. Under DC 6260, a rating of 10 percent rating is assigned for tinnitus. 38 C.F.R. § 4 .87, DC 6260. The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87, DC 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has also considered whether the Veteran’s claim should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b), which is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Significantly, the Board finds that referral for extraschedular consideration is not warranted in this case. In that regard, the Veteran was afforded VA examinations in February 2018 and September 2018. In February 2018, the Veteran reported that the noise keeps him from going to sleep sometimes. See February 2018 VA examination. The September 2018 VA examiner noted that the Veteran’s tinnitus did not impact ordinary conditions of daily life, including ability to work. See September 2018 VA examination. Based on these findings, the Board finds the Veteran has not been shown to have symptoms that are not contemplated by the pertinent rating criteria. 38 C.F.R. § 4.87, DC 6260. Therefore, the Board concludes that there is nothing exceptional or unusual about the Veteran’s disability picture and that the rating criteria under DC 6260 adequately describe his disability level and symptomatology. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, neither the Veteran, nor his representative, have articulated any reason why he believes a higher rating in excess of 10 percent is warranted. Thus, referral for extraschedular consideration is not warranted. In sum, the evidence of record supports the RO appropriately assigned an initial 10 percent rating for the Veteran’s service-connected tinnitus. Absent any evidence to the contrary, the Board can find no basis upon which to assign a higher rating for his service-connected tinnitus at any time during the appeal period. As such, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 10 percent for service-connected tinnitus under 38 C.F.R. § 4.87, DC 6260. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to a higher initial disability rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 39 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. REASONS FOR REMAND Entitlement to an earlier effective date prior to June 1, 2005 for the grant of a TDIU, excluding a period of a total rating based on total right knee replacement, is remanded. As noted, in June 2018, the Board remanded the Veteran’s claim to a TDIU. In October 2018, the RO granted the Veteran TDIU, effective June 1, 2005 based on the Veteran’s service-connected bilateral hearing loss and right knee disability. The Veteran, through his representative, asserts that he is entitled to an earlier effective date prior to June 1, 2005 for the award of a TDIU. As a matter of history, the Board notes that the Veteran initially sought service connection for a right knee disability in May 2002. See May 2002 VA Form 21-526. In September 2015, the RO, granted service connection for the Veteran’s right knee disability and assigned an initial 10 percent rating effective May 20, 2002, date of claim, pursuant to an August 2015 rating decision that granted service connection. The Veteran sought an initial disability rating in excess of 10 percent for his service-connected right knee in March 2016. See March 2016 NOD. In awarding the Veteran TDIU from June 1, 2005, the RO also noted the Veteran, through his representative, continuously sought increased ratings for his service-connected hearing loss and right knee disabilities. The Board finds that entitlement to a TDIU prior to June 1, 2005 has been raised as part and parcel of the Veteran’s disagreement with the initial rating assigned for his right knee disability, for which service connection has been established, and the initial rating assigned, effective May 20, 2002. The RO, in awarding the Veteran a TDIU effective June 1, 2005, effectively denied the Veteran a TDIU prior to June 1, 2005. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient disability to bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability renders a veteran unemployable. 38 C.F.R. § 4.16 (b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements of § 4.16 (a), the Board is required to remand the claim, so that it can be referred to VA’s Director of Compensation and Pension (Director) for adjudication in accordance with 38 C.F.R. § 4.16 (b). Prior to June 1, 2005, the Veteran was service connected for bilateral hearing loss, rated as 40 percent disabling; right knee cartilage loss and degenerative joint disease, rated as 10 percent disabling from May 20, 2002, and 100 percent disabling from April 27, 2004 to May 31, 2005 as a result of a total right knee replacement; separate rating for cartilage loss of the right knee, rated as 10 percent disabling from May 20, 2002 to April 27, 2004; and right knee scar, rated as noncompensable from April 27, 2004. The Veteran’s combined evaluations were 50 percent from May 20, 2002 to April 26, 2004, and 100 percent from April 27, 2004 to May 31, 2005. As such, the Veteran did not meet the percentage requirements for a TDIU prior to June 1, 2005, excluding the 100 percent rating based on a total right knee replacement. As noted, the Board cannot consider such entitlement in the first instance. Nevertheless, the Board may consider whether Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation such that referral of entitlement to a TDIU on an extraschedular basis is warranted under 38 C.F.R. § 4.16(b) prior to June 1, 2005. In this case, the Veteran’s representative provided a March 2018 private medical opinion that concluded the Veteran has not been able to maintain substantial gainful employment since 1980 due to his service-connected right knee. See March 2018 private medical opinion. The March 2018 private examiner stated that it is at least as likely as not that the Veteran was not able to secure and follow substantially gainful employment since his last job in 1980; right knee would have continued to escalate over the following ten years and made it increasingly more difficult for the Veteran to perform a job that required him to be on his feet: and the Veteran did not have any skills to transfer to sedentary work. Id. Additionally, the Veteran’s representative provided a March 2018 Vocational Assessment. The March 2018 private vocational expert also concluded that it is at least as likely as not that the Veteran has not been able to secure or follow a gainful occupation solely as a result of his service-related disabilities, and this total disability has existed since his prior job in 1980. See March 2018 Vocational Assessment. In regard to his service-connected hearing loss, the Veteran reported he had difficulty hearing people any time he is not facing the speaker, and his wife reported that the Veteran’s hearing had decreased significantly over the prior 5 years. See July 2003 VA examination. In light of the above, the Board finds that this case meets the criteria for consideration of a TDIU on an extraschedular basis, excluding the period of total rating based on a total right knee replacement, prior to June 1, 2005 as there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities. As such, on Remand, the RO should refer the issue of entitlement to a TDIU prior to June 1, 2005 to the Director for a determination as to the Veteran’s entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). Entitlement to an earlier effective date prior to June 1, 2005 for the grant of DEA, is remanded. The Veteran, through his representative, asserts that an earlier effective date is warranted for the grant of DEA, which was granted effective June 1, 2005, in an October 2018 rating decision. See November 2018 NOD. The Veteran’s representative has not asserted as to what date he believes that the DEA is warranted or provided any specific argument in support of this appeal. However, entitlement to an earlier effective date for the grant of DEA is inextricably intertwined with the claim for an earlier effective date prior to June 1, 2005 for the award of a TDIU on an extraschedular basis being remanded by the Board. See Sabonis v. Brown, 6 Vet. App. 426 (1994); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Accordingly, May 20, 2002 may also be the effective date for DEA, and the Veteran’s claim to an earlier effective must also be remanded. The matters are REMANDED for the following action: 1. Refer this case to the Director of Compensation Service for consideration of whether the Veteran is entitled to the award of a TDIU at any time during the rating period prior to June 1, 2005 on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), excluding the period of a total rating based on a total right knee replacement. The electronic claims file should be provided to the Director of Compensation Services. 2. Then, readjudicate the issues of entitlement to a TDIU prior to June 1, 2005, and entitlement to an earlier effective date prior to June 1, 2005, for the grant of DEA benefits. If the benefits sought on appeal are denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.