Citation Nr: 21009576 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-02 471 DATE: February 22, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to May 16, 2013, for right knee traumatic arthritis is denied. Entitlement to an evaluation in excess of 10 percent prior to May 16, 2013, for right knee instability is denied. Entitlement to an evaluation of 20 percent for right knee semilunar cartilage dislocation prior May 16, 2013, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 30 percent from July 1, 2014, for right knee traumatic arthritis, status post total knee arthroplasty, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 16, 2013, the Veteran’s right knee traumatic arthritis was characterized by pain, flexion to 110 degrees, and extension to 0 degrees. 2. Prior to May 16, 2013, the Veteran’s right knee instability was characterized by slight recurrent subluxation or lateral instability. 3. Prior to May 16, 2013, the Veteran’s right knee was additionally manifested by semilunar cartilage dislocation with effusion and pain. 4. From July 1, 2014, the Veteran’s right knee traumatic arthritis has been characterized by pain, flexion to 100 degrees, and extension to 0 degrees. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to May 16, 2013, for right knee traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260. 2. The criteria for an evaluation in excess of 10 percent prior to May 16, 2013, for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate 20 percent rating prior to May 16, 2013, for right knee semilunar cartilage dislocation with effusion and pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 4. The criteria for an evaluation in excess of 30 percent from July 1, 2014, for right knee traumatic arthritis status post total right knee arthroplasty, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1969 to November 1970. In June 2016 the Veteran testified before a Veterans Law Judge who is no longer employed at the Board at a videoconference hearing. In September 2020 the Veteran indicated in writing that he does not wish to appear at a hearing before another Veterans Law Judge. This claim was previously before the Board in June 2018, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for further appellate consideration. The Veteran was assigned a 100 percent rating from May 16, 2013, through June 30, 2014, following a total right knee replacement. Therefore, this period is not on appeal. See A.B. vs. Brown, 6 Vet. App. 35, 38 (1993). When a law or regulation changes during the course of a claim, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The rating criteria related to the musculoskeletal system are being updated effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). This includes changes to Diagnostic Code 5257. Id. Since the Veteran is only rated under Diagnostic Code 5257 prior to May 16, 2013, these changes are not applicable herein. Furthermore, Diagnostic Code 5055 is being updated to shorten the period for a 100 percent rating following a total knee replacement from one year to four months. Id. Since the period for which the Veteran had a 100 percent rating following the right total knee replacement is not being disturbed herein and was greater than four months, the changes to Diagnostic Code 5055 do not affect this decision. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent prior to May 16, 2013, for right knee traumatic arthritis 2. Entitlement to an evaluation in excess of 10 percent prior to May 16, 2013, for right knee instability 3. Entitlement to an evaluation in excess of 30 percent from July 1, 2014, for right knee traumatic arthritis, status post total knee arthroplasty Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5055, for a total knee replacement with prosthesis, a 100 percent evaluation is assigned for 1 year following implantation of the prosthesis. After that year, a minimum rating of 30 percent disabling is assigned. With intermediate degrees of residual weakness, pain or limitation of motion, the rater is directed to evaluate as analogous to Diagnostic Codes 5256, 5261, or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. The evaluation of the same “disability” or the same “manifestations” under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). At December 2011 VA treatment active and passive range of motion was flexion to 95 degrees and extension to 0 degrees. There was not any knee locking noted, and there was minimal patellofemoral crepitus and grinding with flexion or extension. The Veteran received a Synvisc injection for right knee pain. The Veteran had a VA examination in February 2012 at which time it was noted that the Veteran had a prior open right medial meniscectomy and currently reported progressively worsening right knee pain and intermittent swelling. There were no frequent episodes of right knee “locking.” Flare-ups were associated with prolonged standing, walking, and bending. On examination range of motion was flexion to 110 degrees with pain at 90 degrees and extension to 0 degrees with no objective evidence of painful motion. There was not additional limitation of motion following repetitive use testing. Joint stability tests were normal. The Veteran used a brace on an occasional basis and a cane on a regular basis. The Veteran said at December 2012 VA treatment that there had not been relief with injections and conservative care. Range of motion and active and passive motion was flexion to 90 degrees and extension to 0 degrees. There was not locking of the knees, but buckling was noted, and anterior and posterior drawer tests were negative. At April 2012 VA treatment active and passive range of motion was flexion to 90 degrees and extension to 0 degrees. There was mild patellofemoral crepitus and grinding with flexion and extension. Anterior and posterior drawer tests were negative. The impression was bilateral knee pain and severe osteoarthritis, and it was noted that the Veteran used a cane. At January 2013 VA knee orthopedic treatment, the Veteran was noted to have significant degenerative joint disease of both knees. Range of motion was flexion to 95 degrees and extension to 0 degrees. There was no ligamentous instability. The treating physician felt that the Veteran was an excellent candidate for a total knee arthroplasty. The Veteran underwent a total right knee arthroplasty on May 16, 2013. At the June 2016 Board hearing the Veteran testified that he still had been having problems with his right knee since the total replacement. He could walk for about 40 to 50 feet without having to stop and hold onto something, and he used a cane. The left knee was also still painful. The Veteran said that prior to the knee replacement surgery the knee would wobble and “jump out of place.” There had continued to be pain since the knee replacement surgery that he rated as seven or eight out of ten. Furthermore, there had continued to be instability, and there was a reduced range of motion. There was a worsening of symptoms with increased activity. The Veteran had an examination arranged through VA in January 2020 at which he reported that his symptoms were daily pain, stiffness, and swelling. He rated the pain as eight out of ten in severity. Flare-ups occurred three to four times a week and lasted for one to two hours, and the Veteran described them as moderate. They were precipitated by physical exertion and alleviated by rest and over-the-counter medication. The Veteran reported difficulty running, bending, kneeling, squatting, lifting, climbing, walking, and sitting and standing for prolonged periods due to pain. On examination range of motion was flexion to 100 degrees and extension to 0 degrees. The examiner also noted that there was objective evidence of pain on passive range of motion of the right knee, and there was no evidence of pain on nonweight-bearing. On repetitive use testing there was not additional loss of function or range of motion. The examination was medically consistent with the Veteran’s statements describing functional loss with repeated use over time. Pain significantly limited functional ability with repeated use over time and flare-ups, limiting flexion to 90 degrees and extension to 0 degrees. There was no joint instability on testing. The examiner felt that the Veteran had an intermediate degree of residual weakness, pain, or limitation of motion from the right total knee joint replacement. It was also noted that the Veteran had had a meniscal tear with frequent episodes of joint locking and joint pain. This appears to be referring back to the period prior to the May 2013 total arthroplasty. The record does not show ankylosis, dislocated semilunar cartilage with frequent locking and effusion, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, and 5263 are not applicable for the entire claims period. See 38 C.F.R. § 4.71a. However, as was noted above, at the January 2020 VA examination it was noted that the Veteran had had a meniscal tear with frequent episodes of joint locking and joint pain, and this is consistent with the surgical pathology record from May 2013, which reflects fibrillar cartilaginous changes, consistent with degeneration. Therefore, despite the fact that neither locking or effusion was noted at the time of VA examination in December 2011, and February 2012, a history of intermittent swelling and pain was noted at that time, and giving the Veteran the benefit of the doubt, the Board finds that an additional separate 20 percent rating for dislocated semilunar cartilage is warranted for the period prior to May 16, 2013, under Diagnostic Code 5258. Further regarding the period prior to May 16, 2013, the Veteran does not qualify for an evaluation in excess of 10 percent based on limitation of flexion because the record does not show the flexion was limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Flexion was to 110 degrees at the February 2012 VA examination and was to 90 degrees at subsequent VA treatment. The Veteran does not qualify for a separate compensable evaluation for limitation of extension because it has not been limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The February 2012 examination and treatment records show that there was full extension. The Veteran also does not qualify for an evaluation in excess of 10 percent prior to May 16, 2013 because the record does not show moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Joint stability tests were normal at the February 2012 VA examination, and the record does not otherwise show that there was instability during this period. Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. At the February 2012 examination, there was pain at 90 degrees of flexion. There was not additional limitation of motion following repetitive use testing. Flare-ups were associated with prolonged standing, walking, and bending. The currently assigned separate 10 percent evaluations for the right knee prior to May 16, 2013, contemplate the limitations during flare-ups, and the 10 percent evaluation for limitation of flexion of the right knee is based specifically on pain given that flexion was not limited to 45 degrees, as is required for a 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Regarding the period from July 1, 2014, the Veteran reported at September 2014 VA treatment that his knee was significantly better post-replacement. It was noted at November 2014 VA treatment that the Veteran’s knees were “doing well” besides a possible “patellar clunk,” and were not painful. There was a full range of motion. The Veteran reported at January 2015, February 2018, and February 2019 VA treatment that his knees were “doing well.” In contrast, the Veteran testified at the June 2016 Board hearing that the right knee had continued to be painful since the replacement, and at September 2018 VA treatment the Veteran said he was still having pain in both knees. At the January 2020 examination the Veteran rated the right knee pain as eight out of ten in severity and reported that there was pain on a daily basis. There was objective evidence of pain on passive range of motion, and no evidence of pain on non-weight bearing. Pain significantly limited functional ability with repeated use over time and flare-ups, limiting flexion to 90 degrees and extension to 0 degrees. There was not joint instability on testing. The examiner felt that the Veteran had an intermediate degree of residual weakness, pain, or limitation of motion from the right total knee joint replacement. The Veteran does not qualify for an evaluation of 60 percent, the next highest available under Diagnostic Code 5055, because the record does not show chronic residuals consisting of severe painful motion or weakness in the right lower extremity. 38 C.F.R. § 4.71a. While the Veteran has pain in the right knee, even with pain limiting functional ability with repeated use over time and flare-ups, flexion was still to 90 degrees and there was full extension. This is analogous to noncompensable ratings for flexion and extension. See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5260, 5261. The record also shows that there have been times at treatment when the Veteran has reported not having pain. Furthermore, there was no right knee instability at the January 2020 examination. The examiner’s opinion that the Veteran has an intermediate degree of residual weakness, pain, or limitation of motion of the right knee is supported by the record and examination results. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“…[M]ost of the probative value of a medical opinion comes from its reasoning” and the Board “must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.”). Under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca, the Board is required to consider the Veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation of motion diagnostic codes. The currently assigned 30 percent evaluation for the right knee from July 1, 2014 contemplate the limitations during flare-ups and with repetitive use, and pain. With the exception of the assignment of a separate 20 percent rating for the Veteran’s right knee under Diagnostic Code 5258 for the period prior to May 16, 2013, because the evidence otherwise preponderates against the claims for evaluations greater than 10 percent prior to May 16, 2013, and in excess of 30 percent from July 1, 2014, for the right knee, the benefit of the doubt doctrine is inapplicable, and the claims must otherwise be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 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 additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities, alone, must be found to be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and his previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection was in effect for right knee traumatic arthritis with a 10 percent rating prior to May 16, 2013 and a 30 percent rating from July 1, 2014, right knee instability prior to May 16, 2013 with a 10 percent rating, and a right knee scar, rated as noncompensable. With the addition of the 20 percent rating prior to May 16, 2013, under Diagnostic Code 5258, the combined rating is now 40 percent prior to May 16, 2013 and 30 percent from July 1, 2014. As discussed above, a 100 percent rating was in effect from May 16, 2013 through June 30, 2014. Thus, the Veteran still does not meet the schedular requirements of 38 C.F.R. § 4.16(a) at any point during the time frame on appeal. However, a TDIU evaluation can still be awarded if it is established by the evidence that service-connected disabilities rendered the Veteran unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation Services for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). The February 2012 VA examiner noted that the Veteran had worked as a clerk with the postal service and had been on disability since 1998 due to a knee condition. The Veteran also testified at the June 2016 hearing that he stopped working in 1998 because he could not stand on concrete due to his right knee. His job as a postal clerk required him to stand for the entire workday. He had not been able to work since then. His level of education is junior college. The Veteran also testified at the June 2016 hearing that he could not do things around the house such as mowing the lawn or climbing a ladder. He sometimes had to sit down while performing tasks. The Veteran could take out the garbage and carry groceries if they were not too heavy. The January 2020 examiner opined that the Veteran could perform work involving sitting for most of the time and only involves walking for standing for brief periods. Jobs requiring sitting for most of the time but entailing pushing and/or pulling of arm or leg controls would not be appropriate. The Veteran additionally could not do jobs requiring walking, standing, or working at a production rate pace entailing the constant pushing and/or pulling of materials, or exerting greater than 20 pounds of force occasionally and/or frequently. Furthermore, he could not do tasks requiring climbing stairs and ramps, stooping, crouching, kneeling, and crawling. Recently, the United States Court of Appeals for Veterans Claims (Court) explained that this initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a Veteran may be unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Accordingly, based on the above, the Board finds that the Veteran’s claim for TDIU must be remanded for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following actions: Refer the issue of entitlement to a TDIU to VA’s Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.