Citation Nr: 21010662 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-29 040 DATE: March 2, 2021 ORDER Entitlement to a rating of 20 percent for radiculopathy affecting the sciatic nerve of the left lower extremity is granted. Entitlement to a rating of 20 percent for radiculopathy affecting the sciatic nerve of the right lower extremity is granted. Entitlement to total disability due to individual unemployability (TDIU) as of January 7, 2008 is granted REMANDED Entitlement to a rating in excess of 10 percent prior to March 7, 2018 and in excess of 20 percent thereafter for degenerative disc disease of the cervical spine is remanded. Entitlement to a rating in excess of 10 percent prior to March 7, 2018 and in excess of 20 percent thereafter for degenerative disc disease of the lumbar spine is remanded. Entitlement to TDIU prior to January 7, 2008 is remanded. FINDINGS OF FACT 1. The Veteran’s radiculopathy affecting the sciatic nerve of the left lower extremity is manifest by no more than moderate incomplete paralysis. 2. The Veteran’s radiculopathy affecting the sciatic nerve of the right lower extremity is manifest by no more than moderate incomplete paralysis. 3. The Veteran’s service-connected disabilities render him unemployable as of January 7, 2008. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for radiculopathy affecting the sciatic nerve of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 2. The criteria for a disability rating of 20 percent for radiculopathy affecting the sciatic nerve of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 3. The criteria for entitlement to TDIU as of January 7, 2008 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to March 1970. 1. Entitlement to a rating in excess of 10 percent for radiculopathy affecting the sciatic nerve of the bilateral lower extremities (wholly sensory) associated with degenerative disc disease of the lumbar spine The Veteran contends that he is entitled to a higher rating for his radiculopathy affecting the sciatic nerve. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720, utilizing the same criteria as Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran attended a VA examination in March 2006 and reported lower back pain that radiated to his buttocks and no further. The physical examination revealed a normal gait and no assistive devices for ambulation. He had normal reflexes, sensation and muscle strength. The examiner did not report any lower extremity radiculopathy. In December 2011 the Veteran underwent another VA examination for low back pain. He had normal muscle strength, no muscle atrophy, normal reflexes, and normal sensory examination results. He had a positive straight leg raise on the left side only. The examiner noted intermittent pain in the right and left lower extremities but did not indicate any involvement of the nerves. In March 2018 the Veteran had a VA examination for his lumbar spine condition and reported low back pain that goes down his right hip. He had normal muscle strength, no muscle atrophy, absent reflexes in the left knee only, and normal sensations. The straight leg raise yielded negative results and the examiner reported no signs or symptoms of radiculopathy. The Veteran attended a VA examination for radiculopathy in July 2019 and received a diagnosis of only right lower extremity radiculopathy. The Veteran reported intermittent stabbing pain in his back that radiated down his right leg. He displayed no symptoms for the left lower extremity and had mild constant pain, moderate intermittent pain, and severe paresthesias and/or dysesthesias affecting the right lower extremity. Examination revealed normal muscle strength, no muscle atrophy and the sensation examination yielded normal results. For the reflex examination he had hypoactive reflexes bilaterally in the ankles. There were no trophic changes, but the Veteran had an antalgic gait due in part to radiculopathy. The examiner found mild incomplete paralysis of the right lower extremity affecting the sciatic nerve. Functionally, the Veteran’s leg pain interferes with standing or ambulating for short periods. The Veteran underwent an additional VA examination for radiculopathy, also in July 2019 and reported back pain and leg weakness. The examiner found moderate intermittent pain, paresthesias and/or dysesthesias, and numbness for the bilateral lower extremities. The Veteran had normal muscle strength, no muscle atrophy, hypoactive reflexes in the bilateral ankles, and decreased sensation in the left lower extremity. There were no trophic changes, but a profound limp attributed to radiculopathy. The examiner reported mild incomplete paralysis of the left lower extremity affecting the sciatic nerve. The Veteran reported constant use of a cane due to leg weakness and functionally, the examiner concluded that peripheral neuropathy causes pain, numbness, and tingling in the feet which causes difficulty with standing and walking. Review of the medical records reveal that the Veteran complained of continuous back pain that radiated to both legs in February 2008 and expressed difficulty with ambulation. Examination revealed normal muscle strength and full sensation but hypoactive reflexes in the bilateral ankles. In May the Veteran described an improvement in back pain since surgery and stated that he had a full resolution of his leg pain and claudication symptoms and was walking several miles at a time. In September the Veteran reported left lower extremity weakness and numbness; however, the examination did not reveal any neurological deficits of the lower extremities and he had a normal gait. In January 2012 the Veteran ambulated with a cane due to an antalgic gait with mild instability. His sensation examination was unremarkable with the exception of diminished right lower extremity vibration. He had a positive straight leg raise bilaterally at 20 degrees. In September he reported falls due to his back and knee problems, he described back pain that shoots down the knee and to the bottom of his foot with tingling. In September 2013 the Veteran had a positive straight leg raise on the right side only. His muscle strength was normal with normal deep tendon reflexes and no sensory deficits. The Veteran complained of radiating back pain into his lower extremities in March 2015. The examination revealed normal muscle strength, normal reflexes and no sensory deficits. The straight leg raising test was equivocal on the right side. In June the Veteran reported radiating back pain in both legs impeding his ability to walk. Examination revealed normal muscle strength, normal sensation, and normal pulses. The Veteran again complained of chronic lower back pain that radiated down the back of both legs in July and needing a walker due to falls and pain. The examination revealed normal muscle strength, no muscle atrophy but a positive straight leg raise. He received a diagnosis of abnormal gait and lumbar radiculopathy. The Veteran reported to physical therapy in a wheelchair and ambulated short distances with a cane in August 2015. The physical therapist noted an antalgic gait, reduced muscle strength of four out of five, and sensation intact to light touch. In January 2016 the Veteran complained of tremors in his lower extremities. In February the treatment records reported lower extremity pain predominately radiating to his right buttock but also down his left leg with difficulty ambulating despite significant rounds of physical therapy and epidural injections requiring the need for a rolling walker for mobilization. In December 2017 the Veteran’s gait was described as unsteady with his cane. In January 2018 the Veteran reported back pain but denied tingling, numbness, weakness or paralysis of the legs. He also denied any recent falls or trauma to the back; however, the Veteran reported intermitted falls due to leg pain and weakness in June. The Board finds that when considering the overall evidence of record the Veteran’s radiculopathy of the bilateral lower extremities is most consistent with the criteria contemplated by moderate incomplete paralysis. The July 2019 VA examiners found radiculopathy of the sciatic nerve to be no more than mild in severity bilaterally. However, the examiner’s findings were inconsistent as one examiner reported mild constant pain, moderate intermittent pain, and severe paresthesias and/or dysesthesias for only the right lower extremity and the other reported moderate intermittent pain, paresthesias and/or dysesthesias, and numbness for the right and left lower extremities. Functionally, they both reported difficulty with standing and walking. Throughout the appeal period, the evidence reveals consistent complaints of pain and difficulty with ambulation due at least partially to radiculopathy of the lower extremities. While the Veteran was walking several miles at a time in May 2008 shortly after his back surgery, it was not long before the Veteran complained of difficulty with ambulation again and required the use of a cane and/or walker. The Veteran is competent to provide testimony as to the presence of his observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the Veteran’s subjective complaints of pain and difficulty walking to be competent and persuasive evidence as to the severity of his symptomology. The Board notes that record also reveals fluctuations in the severity of symptoms as the Veteran had inconsistent findings for both sensory and reflex examinations. While his sensations were generally intact, the treatment notes from January 2012 noted decreased sensation and the July 2019 examiner found decreased sensation for the left lower extremity; however, at a VA examination conducted later that month the Veteran’s sensory examination yielded normal results. Similarly, for reflexes, generally the Veteran’s had normal reflexes; however, he displayed hypoactive reflexes in February 2008 and at both VA examinations in July 2019. At no time during the appeal period did the evidence reveal any trophic changes, muscle atrophy or evidence of complete paralysis. Therefore, the Veteran’s radiculopathy is primarily manifest by pain and difficulty with ambulation. The Board acknowledges that the Veteran uses an assistive device due to his radiculopathy. However, 38 C.F.R. § 4.120 “contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker.” Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that a rating of 20 percent for moderate incomplete paralysis of the bilateral lower extremities is warranted. 2. TDIU as of January 7, 2008 The Veteran contends his service-connected disabilities prevented him from securing and following a substantially gainful occupation prior to June 13, 2011. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability or as a result of two or more disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16 (a). Throughout the period at issue, the Veteran was service connected for PTSD, bilateral hearing loss, degenerative disc disease of the cervical and lumbar spine, tinnitus, and radiculopathy of the lower extremities affecting the sciatic nerve. However, the Veteran had a combined disability rating of 50 percent from October 19, 2005 to January 6, 2008 and a combined rating of 70 percent thereafter. Thus, prior to January 7, 2008 the Veteran did not meet the threshold requirements for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). If the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a) are not met, but evidence indicates that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Therefore, the Board must specifically adjudicate whether to remand a case for referral to the Director of the Compensation Service for consideration of an extraschedular TDIU. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). As such, TDIU prior to January 7, 2008 is further discussed below in the remand section. The Veteran had a combined disability rating of 70 percent as of January 7, thereby meeting the threshold requirements for entitlement to TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). As such, the central inquiry is than “whether that veteran's service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is not required to show 100 percent unemployability; the question is whether he is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Whether the veteran can actually find employment is not determinative, as the focus of the inquiry is on “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Board incorporates by reference the Veteran’s medical history and analysis regarding radiculopathy of the lower extremities discussed in detail above. The Veteran filed a claim received October 19, 2005 requesting service connection for his back and peripheral neuropathy. The Veteran also filed a claim requesting TDIU received March 27, 2013 alleging the inability to secure or follow substantial gainful employment as the work environment exasperated his PTSD symptoms including startle response, hyper-arousal, hyper-vigilance, anxiety and irritability. A March 2014 rating decision denied the claim noting that the Veteran reported being unable to work due to problems with movement related to his back and neck and concluded that the VA examinations revealed that physical limitations are his primary obstacle to successful employability. The Veteran filed another claim alleging TDIU due to PTSD in April 2014 stating that he became too disabled to work in 2007. The April 2016 granted TDIU due to PTSD effective June 13, 2011. However, as the Veteran also raised the issue of TDIU in conjunction with his claim for an increased rating for his back and neck condition, the Board must consider whether TDIU is warranted prior to June 13, 2011. The Veteran underwent a general VA examination in March 2006. He complained of being unable to do any activities that required his arms to be above shoulder height due to neck pain and limitation of motion and the inability to stand more than an hour without a break due to lower back pain. He reported increased pain at work where he operated a press in a machine shop that resulted in missing six days of work but denied any periods of incapacity in the last year and denied any functional impairment due to his legs. In April 2007 the Veteran complained of back, neck, and shoulder pain that kept him in bed for two days. The Veteran underwent a VA examination for PTSD in February 2008, the examiner noted a sleep impairment that interfered with daytime activities and symptoms resulting in a moderate impairment in functional status with reduced reliability and productivity. In April 2008 M.B., a social worker, opined that the increased severity of PTSD impeded the Veteran’s ability to maintain any level of sustainable employment due to symptoms such as hyper-arousal, sleep impairment, and intrusive thoughts of past trauma. In June 2017, the Veteran submitted a medical opinion from Dr. J.K., who opined that it is as least as likely as not the Veteran’s orthopedic conditions rendered him unable to secure gainful employment since his retirement in 2007. Dr. J.K. provided a detailed summary of the Veteran’s medical history beginning with his in-service injuries. The Veteran also provided a statement explaining that he retired in 2007 secondary to low back and neck pain and underwent two back surgeries in 2008. He described difficulty with ambulating, lifting, and numbness and tingling in the extremities aggravated by activity. Based on the medical history and interview with the Veteran, Dr. J.K. concluded that the cervical and lumbar spine residuals were severe since at least October 2005; thus, total disability should be dated back to 2007 when he was no longer able to work due to low back pain. The Veteran provided a statement received February 16, 2018 stating that he worked 30 to 40 hours per week up until 2007. He claimed that he was not able to stay focused and remained isolated from his coworkers due to his PTSD. The Veteran expressed that his cervical and lumbar spine conditions influenced his decision to leave full-time work as he could not bend, carry, climb stairs or operate basic machinery without constant pain. Additionally, he described difficulty hearing and discriminating sounds due to his hearing loss and tinnitus, resulting in further isolation. The Veteran alleged that all his service-connected conditions prevented him from obtaining and maintaining substantially gainful employment since 2007. The Veteran underwent a vocational assessment from a private consultant, L.S. in October 2020, who reviewed the record and conducted a telephone interview with the Veteran. The Veteran described experiencing symptoms such as numbness in his leg, alternating between sitting and standing every 30 minutes, the inability to walk farther than 200 yards at a time, pain and swelling and requiring a cane and walker prior to June 2011. L.S. concluded that the Veteran was a credible reporter and opined that the limitations in sitting, standing and walking for prolonged periods are inconsistent with the exertional demands of even sedentary employment based on the Dictionary of Occupational Titles (DOT) definition. L.S. noted that most sedentary jobs required the ability to perform work tasks that involve motion or rotation of the neck; however, the evidence established that the Veteran had pain and limited range of motion and would therefore more likely than not be additionally precluded from completing the full range of physical requirements for even sedentary employment on a consistent and reliable basis since at least January 2007. Additionally, the Veteran was more likely than not unable to maintain concentration for at least two hours at a time due to his pain and limitations and his pauses and lapses in concentration throughout the day would more likely than not have caused him to be off task and unproductive in excess of the tolerated 10 percent of a workday. This was also compounded by the Veteran’s social isolation and difficulty interacting appropriating and effectively with others due to PTSD. Furthermore, L.S. noted that the Veteran did not have any professional degrees, certifications, licensures or noted computer skills which would have provided an advantage at the unskilled sedentary level or possess skills from past employment that would have readily transferred to sedentary employment. The Veteran’s employment history reveals full-time work as a stamping press operator from November 25, 2002 to April 15, 2007. According to the information provided by the employer, the Veteran retired and lost no time during the 12-months preceding retirement due to his disability and did not require any concessions due to age or disability. See VA 21-4192 May 2018. The Veteran reported a seventh-grade education with no other training. See VA 21-8940 March 2013. The DOT definition provided by vocational consultant L.S. describes sedentary work as exerting up to 10 pounds occasionally (1/3 of the time) and/or a negligible amount of force frequently (1/3 to 2/3 of the time), lifting, carrying, pushing, pulling or otherwise moving objects, to include the human body, sitting most of the time and possibly walking or standing for brief periods (occasionally). The evidence reveals that prior to June 13, 2011 the Veteran’s physical service-connected conditions caused difficulties with standing, sitting, and raising his arms above shoulder level and these limitations and pain also caused difficulties with concentration and focus. According to the Veteran he had to alternate between sitting and standing every 30 minutes; thus, in an eight-hour day he would be able sit for approximately half the day. L.S. opined that this frequent need to alternate position would likely have precluded him from sustaining concentration as he would have to pause to adjust. The Board notes that these physical limitations would have impacted the Veteran’s ability to engage in certain employment but would not have precluded all types of employment. However, when considering the overall combined effects of the Veteran’s physical service-connected conditions with his limitations from his service-connected PTSD in conjunction with his seventh grade level of education, lack of special training, and previous work experience with no transferable skills to sedentary work the Board finds that the evidence supports a finding of TDIU as of January 7, 2008. As such, the claim is granted. REASONS FOR REMAND 1. Entitlement to an increased rating for degenerative disc disease of the cervical and lumbar spine The Veteran’s August 2019 VA examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). At the examination, the Veteran reported flare ups that cause difficulty with bending, sitting or standing. The examiner failed to provide an estimation of functional loss during flare-ups, stating that in mild cases there are minimal decreases and in severe cases there would be more noticeable decreases in range of motion. An addendum requested the examiner provide an estimation of range of motion; however, the examiner merely repeated his prior report. An examiner must attempt to ascertain adequate information from the Veteran such as frequency, duration, characteristics, and severity and provide flare-ups estimates based on available information from all relevant sources, to include lay statements. Id. As such, a remand is necessary to obtain Sharp compliant VA examinations. 2. TDIU prior to January 7, 2008 The Board acknowledges the contention that the Board does not need to refer the issue of TDIU to the Director. The Representative alleges that the language of 38 C.F.R. § 4.16(b) stating that rating boards “should” is permissive and not mandatory. The representative also argues that the Court majority in Wages v. McDonald noted that “In sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected.” Wages v. McDonald, 27 Vet. App. 233, 238 (U.S. 2015) Despite the Representative’s familiarity with this case, the arguments provided misapply the established precedent. The Court in Wages held that the Board is not bound by the Director’s decision and specifically stated that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU” and “On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.” Wages, 27 Vet. App. 233. The Board also rejects the argument that referral to the Director in the first instance is not required because section 4.16(b) uses the word “should” and is therefore permissive rather than mandatory. This is contrary to the long-standing and unambiguous precedent that the Board is prohibited from awarding extraschedular TDIU in the first instance. Id. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA medical examination to determine the current severity of his service-connected degenerative disc disease of the cervical and lumbar spine. The electronic claims file must be reviewed in conjunction with the examination. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and provide an estimate of additional functional loss in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Refer the Veteran's claim for an extraschedular TDIU to the Director, Compensation Service for consideration of whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) for any portion of the appeal period prior to January 7, 2008. Provide the claims file to the Director, Compensation Service. 4. Finally, readjudicate the appeal. If the benefits sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Prinsen 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.