Citation Nr: 21008805 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-51 562 DATE: February 18, 2021 ORDER Entitlement to a 40 percent rating, but no higher, for degenerative joint disease of the dorsal spine, effective December 15, 2011, but no earlier, is granted. Entitlement to a 10 percent rating, but no higher, from December 15, 2011 to July 23, 2013 for left lower extremity sciatica is granted. Entitlement to a rating in excess of 10 percent from July 24, 2013, to August 24, 2017, for left lower extremity sciatica is denied. Entitlement to a rating in excess of 20 percent from August 25, 2017, and thereafter, for left lower extremity sciatica is denied. Entitlement to a 10 percent rating, but no higher, from December 15, 2011 to July 23, 2013 for right lower extremity sciatica is granted. Entitlement to a rating in excess of 10 percent from July 24, 2013, to August 24, 2017, for right lower extremity sciatica is denied. Entitlement to a rating in excess of 20 percent from August 25, 2017, and thereafter, for right lower extremity sciatica is denied. REMANDED Entitlement to a rating in excess of 10 percent for impairment of sphincter control with fecal incontinence is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 10, 2019, is remanded. FINDINGS OF FACT 1. The Veteran has at least as likely as not had forward flexion of the thoracolumbar spine limited to 30 degrees or less since the date of his December 2011 increased rating claim for his service-connected lumbar spine disability, but the preponderance of evidence is against a finding that he has had unfavorable ankylosis of the entire thoracolumbar spine/entire spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period. 2. From December 15, 2011 to July 23, 2013, the Veteran at least as likely as not had mild incomplete paralysis of the left sciatic nerve, but the preponderance of evidence is against a finding that he experienced moderate incomplete paralysis of the left sciatic nerve, or a higher disability, during this time period. 3. The preponderance of the evidence is against a finding that the Veteran experienced moderate incomplete paralysis of the left sciatic nerve, or a higher disability, from July 24, 2013 to August 24, 2017. 4. The preponderance of the evidence is against a finding that the Veteran experienced moderately severe incomplete paralysis of the left sciatic nerve or a higher level of disability from August 25, 2017. 5. From December 15, 2011 to July 23, 2013, the Veteran at least as likely as not had mild incomplete paralysis of the right sciatic nerve, but the preponderance of evidence is against a finding that he experienced moderate incomplete paralysis of the right sciatic nerve, or a higher disability, during this time period. 6. The preponderance of the evidence is against a finding that the Veteran experienced moderate incomplete paralysis of the right sciatic nerve, or a higher disability, from July 24, 2013 to August 24, 2017. 7. The preponderance of evidence is against a finding that the Veteran experienced moderately severe incomplete paralysis of the right sciatic nerve or a higher level of disability from August 25, 2017. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for degenerative joint disease of the dorsal spine, effective December 15, 2011, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a Diagnostic Codes 5010, 5242. 2. For the period from December 15, 2011, to July 23, 2013, the criteria for a 10 percent rating, but no higher, for left lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.124a, Diagnostic Code 8520. 3. For the period from July 24, 2013, to August 24, 2017, the criteria for a rating in excess of 10 percent for left lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. For the period from August 25, 2017, and thereafter, the criteria for a rating in excess of 20 percent for left lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. For the period from December 15, 2011, to July 23, 2013, the criteria for a 10 percent rating, but no higher, for right lower extremity sciatica have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.124a, Diagnostic Code 8520. 6. For the period from July 24, 2013, to August 24, 2017, the criteria for a rating in excess of 10 percent for right lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 7. For the period from August 25, 2017, and thereafter, the criteria for a rating in excess of 20 percent for right lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in April 2020. The case has been returned to the Board at this time for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Entitlement to a 40 percent rating, but no higher, for degenerative joint disease of the dorsal spine, effective December 15, 2011, but no earlier, is granted. The Veteran’s degenerative joint disease of the dorsal spine (hereinafter “lumbar spine disability”) is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The present lumbar spine disability is rated on the basis of limitation of motion using the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a at Note 5. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45 for disabilities evaluated on the basis of limitation of motion. In applying these regulations, VA must obtain examinations in which the examiner determines whether the disability is manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. The Veteran’s lumbar spine disability is rated as 20 percent disabling from December 15, 2011, to April 9, 2019, and as 40 percent disabling effective April 10, 2019, which coincides with a VA examination that revealed the Veteran’s forward flexion of the thoracolumbar spine is limited to 30 degrees or less. The Board notes that the Veteran was afforded VA examinations regarding his lumbar spine disability in January 2012 and July 2017. However, these VA examination reports are inadequate for rating purposes because the VA examiners did not review the Veteran’s claims file. The Veteran was also afforded a VA examination in February 2014 which the Board finds is inadequate for rating purposes regarding the Veteran’s lumbar spine limitation of motion because the VA examiner did not adequately address additional range of motion loss during flare-ups. The April 2019 VA examination report also does not adequately address additional range of motion loss during flare-ups, however, the Board finds that the holding in DeLuca would not change the outcome here as the initial range of motion measurements result in the Veteran being assigned the maximum rating allowed based on limitation of range of motion under the General Rating Formula for Disease and Injuries of the Spine. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Because the Board finds the VA examinations prior to April 2019 to be inadequate for rating purposes, in light of the whole recorded history of the Veteran’s service-connected lumbar spine disability, and reconciling the various reports into a consistent picture, the Board finds that the April 2019 VA examination report is probative with respect to the Veteran’s level of functional impairment throughout the appeal period. Accordingly, an earlier effective date of December 15, 2011 is warranted for the 40 percent rating currently assigned for the Veteran’s service-connected lumbar spine disability, which corresponds to the date of the increased rating claim that led to the present appeal. The Board acknowledges the effective date of an award of an increased evaluation can be assigned up to one year prior to the date of an increased rating claim if it is factually ascertainable that an increase in disability occurred during this period. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the Veteran has not reported experiencing any definitive increase in disability in the year prior to his December 2011 increased rating claim. There are no treatment records or examination reports documenting the Veteran’s lumbar spine disability during this time period. As such, the Board finds there is not a factually ascertainable increase in disability in the one-year period prior to the Veteran’s December 2011 increased rating claim. The Board further finds a rating in excess of 40 percent is not warranted for the Veteran’s service-connected lumbar spine disability at any point in the appeal period. As previously stated, under the General Rating Formula for Disease and Injuries of the Spine, a rating in excess of 40 percent requires either unfavorable ankylosis of entire thoracolumbar spine (60 percent rating) or the entire spine (100 percent rating). 38 C.F.R. § 4.71a. The Veteran has been examined several times during the appeal period and there is no evidence of ankylosis in this case. In addition, the Veteran’s treatment records are silent as to any evidence of ankylosis. Thus, a rating in excess of 40 percent is not warranted under the General Rating Formula for Disease and Injuries of the Spine. The alternate Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The February 2014 VA examination reflects that the Veteran was diagnosed with intervertebral disc syndrome and that the Veteran had incapacitating episodes over the past twelve months, however, they were noted to last more than four weeks, but less than six weeks. Moreover, there is no evidence of record that shows these incapacitating episodes included bed rest prescribed by a physician. In addition, the June 2020 VA examiner acknowledged the Veteran has intervertebral disc syndrome but reported the Veteran has not had acute symptoms of intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. There are no treatment records that suggest the Veteran had acute symptoms of intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician at any point in the appeal period, much less for six weeks or more during a 12-month period. As a result, the Board finds the preponderance of evidence is against a finding that the Veteran has had intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period. In sum, the Board finds an earlier effective date of December 15, 2011 is warranted for the 40 percent rating assigned for the Veteran’s service-connected lumbar spine disability; however, there is no evidence that makes it factually ascertainable that an increase in disability occurred in the year prior to the Veteran’s December 2011 increased rating claim, making the effective date provisions of 38 U.S.C. § 5110(a) inapplicable in this case. A rating in excess of 40 percent is not warranted for the Veteran’s service-connected lumbar spine disability at any time during the appeal period because the preponderance of evidence is against a finding that he has had unfavorable ankylosis of the entire thoracolumbar spine/entire spine or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period at any point in the appeal period. Finally, associated neurological impairments are an element of the rating assigned for the Veteran’s service-connected lumbar spine disability. Here, the Veteran has been assigned separate ratings for service-connected sciatica of the right and left lower extremities, as well as impairment of the rectal sphincter with fecal incontinence (hereinafter incontinence). The Veteran raised the issues of associated neurological disorders throughout the appeal, including in his July 2013 notice of disagreement and during the January 2020 Board hearing. Therefore, the Board will address the ratings assigned for both the service connected left and right lower extremities, as well as the service-connected incontinence as part of the appeal of the lumbar spine disability. 2. Entitlement to a 10 percent rating, but no higher, from December 15, 2011, to July 23, 2013 for left lower extremity sciatica is granted. 3. Entitlement to a rating in excess of 10 percent from July 24, 2013, to August 24, 2017, for left lower extremity sciatica is denied. 4. Entitlement to a rating in excess of 20 percent from August 25, 2017, and thereafter, for left lower extremity sciatica is denied. 5. Entitlement to a 10 percent rating, but no higher, from December 15, 2011, to July 23, 2013 for right lower extremity sciatica is granted. 6. Entitlement to a rating in excess of 10 percent from July 24, 2013, to August 24, 2017, for right lower extremity sciatica is denied. 7. Entitlement to a rating in excess of 20 percent from August 25, 2017, and thereafter, for right lower extremity sciatica is denied. The Veteran’s bilateral lower extremity radiculopathy is evaluated under DC 8520, which relates to paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. A staged rating is currently assigned for the left and right lower extremity radiculopathy during the appeal period with each disability being rated 10 percent disabling prior to August 25, 2017, and 20 percent disabling thereafter. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is reserved for complete paralysis. The Veteran’s VA treatment records reflect that he was diagnosed with lumbar radiculopathy in March 2010. The January 2012 VA examination reflects that the Veteran did not have radiculopathy at the time, however, because the VA examiner did not review the Veteran’s claims file, the Board finds this VA examination inadequate for rating purposes regarding this issue. The February 2014 VA examination reflects that the Veteran had radiculopathy of the left and right lower extremities which the examiner rated as mild in severity. The July 2017 VA examination reflects that the Veteran did not have radiculopathy, however, because the VA examiner did not review the Veteran’s claims file, the Board finds this VA examination inadequate for rating purposes regarding this issue. In August 2017, the Veteran filed a separate increased rating claim for his service-connected lower extremity radiculopathy, even though the issues were part of the pending appeal regarding his increased rating claim for his service-connected lumbar spine disability. A December 2017 VA examination reflects that the Veteran’s radiculopathy of the right and left lower extremities had increased to moderate severity. An April 2019 VA examination reflects that the Veteran’s right lower extremity radiculopathy was moderate in severity and his left lower extremity radiculopathy was mild in severity. Finally, a June 2020 VA examination reflects that the Veteran’s right lower extremity radiculopathy was moderate in severity and his left lower extremity was not affected by radiculopathy. The first VA examination to adequately assess the neurological impairment of the Veteran’s lower extremities in accordance with the terms used in 38 C.F.R. § 4.124a was the February 2014 VA examination. However, the record reflects that the Veteran’s lumbar radiculopathy was diagnosed in May 2010. Because associated neurological impairments are an element of the rating assigned for the Veteran’s service-connected lumbar spine disability and the Veteran’s lower extremity sciatica was diagnosed prior to the Veteran’s December 2011 increased rating claim for his lumbar spine disability, Board finds an earlier effective date of December 15, 2011 is warranted for the Veteran’s 10 percent rating assigned for the Veteran’s service-connected left lower extremity sciatica and the 10 percent rating assigned for the Veteran’s service-connected right lower extremity sciatica. The Board again acknowledges the effective date of an award of an increased evaluation can be assigned up to one year prior to the date of an increased rating claim if it is factually ascertainable that an increase in disability occurred during this period, but, similar to the Veteran’s service-connected lumbar spine disability, there is no evidence that makes it factually ascertainable that the Veteran experienced an increase in disability with regard to the neurological impairment of his lower extremities in the year prior to his December 2011 increased rating claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board finds the preponderance of the evidence is against a finding that the Veteran experienced “moderate” incomplete paralysis of the left and/or right sciatic nerve or a higher level of disability prior to his August 2017 increased rating claim. The only VA examination adequate for rating purposes prior to August 2017 was in February 2014, but the examiner did not describe the Veteran’s lower extremity radiculopathy as moderate in severity. In addition, the Veteran’s treatment records during this time period do not suggest a level of impairment beyond that discussed in the February 2014 VA examination report. As a result, the Board finds a rating in excess of 10 percent prior to August 25, 2017 is not warranted for the Veteran’s left lower extremity sciatica and a rating in excess of 10 percent prior to August 25, 2017 is not warranted for the Veteran’s right lower extremity sciatica. The Board also finds the preponderance of evidence is against a finding that the Veteran experienced “moderately severe” incomplete paralysis of the left and/or right sciatic nerve or a higher level of disability at any point in the appeal period. The Board notes that, since August 2017, the neurological impairment of the Veteran’s lower extremities has been assessed during one VA peripheral nerve examination and two VA thoracolumbar spine examinations. None of these examiners described the Veteran’s lower extremity radiculopathy as “moderately severe.” In addition, the Veteran’s treatment records do not suggest a level of impairment beyond that discussed in the various examination reports. As a result, the Board finds a rating in excess of 20 percent is not warranted for the Veteran’s left lower extremity sciatica and a rating in excess of 20 percent is not warranted for the Veteran’s right lower extremity sciatica at any point in the appeal period. Nevertheless, an earlier effective date of December 15, 2011 is warranted for the 10 percent rating assigned for Veteran’s left lower extremity sciatica and the Veteran’s right lower extremity sciatica, and, to that extent, the Veteran’s appeal is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for impairment of sphincter control with fecal incontinence is remanded. The Veteran has been assigned a separate 10 percent rating for impairment of sphincter control with fecal incontinence associated with his lumbar spine disability pursuant to DC 7332, effective September 26, 2012. The Veteran’s last VA examination specifically focused on his incontinence was in February 2014. The Veteran’s VA treatment records indicate that the Veteran’s incontinence may have worsened since this last VA examination. The Board notes that, although the April 2019 and June 2020 VA spine examinations note the Veteran’s incontinence, they do not sufficiently address the severity of the Veteran’s condition for ratings purposes. Accordingly, a new VA examination is warranted to determine the current severity of the Veteran’s service-connected incontinence. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 2. Entitlement to TDIU prior to April 10, 2019, is remanded. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran’s service-connected incontinence, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Veteran appears to have been employed for almost the entire appeal period, prior to April 10, 2019. The Veteran’s employment, however, does not necessarily foreclose the possibility of an award of a TDIU since a finding of marginal employment can establish entitlement to a TDIU. Marginal employment generally shall be deemed to exist when a claimant’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(b). Marginal employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. Id. Here, there is no evidence regarding the Veteran’s income during the appeal period or whether marginal employment can be found on a facts found basis. Thus, on remand, the AOJ should request the Veteran furnish such information in order for VA to be able to properly assess if the Veteran’s employment during the appeal period could be characterized as marginal for purposes of eligibility for a TDIU. The matters are REMANDED for the following action: 1. Obtain an opinion, preferably with a clinician who has not previously examined the Veteran, to determine the current nature and severity of the Veteran’s service-connected impairment of sphincter control with fecal incontinence. If the selected clinician determines that the Veteran must be examined in order to provide the requested opinion, an examination should be scheduled, to include a telehealth examination if feasible. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Inform the Veteran that if he wishes to be considered for a TDIU prior to April 10, 2019, he must provide information about his employment, to include his annual salary, from approximately December 2011 to April 10, 2019. Ask the Veteran to complete any necessary forms for consideration of a TDIU. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.