Citation Nr: 21021959 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 19-02 811 DATE: April 14, 2021 ORDER Entitlement to a disability rating in excess of 30 percent, prior to November 27, 2017, for service-connected bipolar disorder is denied. Entitlement to a disability rating of 50 percent, and no higher, from November 27, 2017 to December 27, 2020, for service-connected bipolar disorder is granted. Entitlement to a disability rating of 100 percent from December 28, 2020, for service-connected bipolar disorder is granted. REMANDED Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to December 28, 2020, on an extraschedular basis is remanded. FINDINGS OF FACT 1. Prior to November 27, 2017, the Veteran’s service-connected bipolar disorder resulted in no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as: depressed mood, chronic sleep impairment, and disturbances of motivation and mood. 2. From November 27, 2017 to December 27, 2020, the Veteran’s service-connected bipolar disorder resulted in no worse than occupational and social impairment with reduced reliability and productivity due to symptoms such as: depressed mood, anxiety, chronic sleep impairment, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control. 3. As of December 28, 2020, the Veteran’s service-connected bipolar disorder resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to November 27, 2017, the criteria for entitlement to a disability rating in excess of 30 percent for bipolar disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432. 2. From November 27, 2017 to December 27, 2020, the criteria for entitlement to a 50 percent disability rating, and no higher, for bipolar disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432. 3. As of December 28, 2020, the criteria for entitlement to a 100 percent disability rating for bipolar disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9432. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1998 to February 2001. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2018 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified at a Board videoconference hearing, before the undersigned Veterans Law Judge (VLJ). The hearing transcript will be associated with the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2019). 38 U.S.C. § 7107 (a)(2) (2012). 1. Entitlement to a disability rating in excess of 30 percent for service-connected bipolar disorder By way of history, the Veteran was granted entitlement to service connection for mood disorder, not otherwise specified (NOS), in June 2012, rated as 30 percent disabling effective April 2011. An April 2018 rating decision recategorized the Veteran’s psychiatric disability as bipolar disorder and continued his 30 percent disability rating. The Veteran contends that he is entitled to a disability rating in excess of 30 percent. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 - 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected bipolar disorder has been rated under the provisions of Diagnostic Code 9432, which uses the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 Under the General Rating Formula, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted when the Veteran experiences occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The focus is on the levels of social and occupational impairment caused by the psychiatric symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Board finds that the symptoms related to the Veteran’s service-connected bipolar disorder more closely approximate the 30 percent disability rating prior to November 27, 2017. From November 27, 2017 to December 27, 2020, the Board finds the Veteran’s symptoms more closely approximate the 50 percent disability rating. As of December 28, 2020, the Board finds the Veteran’s symptoms warrant a 100 percent disability rating under 38 C.F.R. § 4.130, Code 9432. The Veteran was afforded a VA examination in December 2011. The VA examiner noted a diagnosis of mood disorder, NOS. The Veteran reported being in a long-term relationship and the VA examiner noted that the relationship appears to have been adversely affected by a concurrent relationship with a manager at one of his jobs. The Veteran reported having only one friend, but the VA examiner noted VA treatment records suggesting multiple friends. The Veteran further reported working as a new car salesman for different dealerships prior to 2009, with his longest period of employment with one dealership for three years. He reported leaving one job due to a romantic relationship with a manager and another because he had to deliver a damaged car. He related other job losses to not being able to arrive on time. The Veteran completed his Associate’s degree approximately in 2009 or 2010, and he did not report any academic impairment as a result of psychiatric symptoms. The VA examiner reported that it is likely that the Veteran’s psychiatric symptoms have resulted in some job losses in the past, and also resulted in his separation from service. The VA examiner noted that the Veteran participates in outpatient psychiatric treatment and has an active prescription for Venlafaxine. The Veteran endorsed symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood, in addition to periodic weight gain and anhedonia in conjunction with his periods of depression. The VA examiner reported that the Veteran’s psychiatric disability results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. A September 2012 VA treatment record shows the Veteran’s report of a suicide attempt in January 2012 due to severe feelings of depression. The Veteran further reported experiencing short-term memory loss due to his suicide attempt. The Veteran denied any current homicidal or suicidal ideation or intention. The VA psychologist reported that the Veteran’s memory issues are likely not organically based; rather, it is more subjective experiences secondary to primary difficulties associated with functional factors such as extreme emotional distress. The Veteran was afforded a VA examination on November 27, 2017. The VA examiner noted a diagnosis of unspecified depressive disorder, updating the previous mood disorder, NOS, diagnosis. The Veteran reported minimal social interaction and having a girlfriend for a year and a half with whom he gets frequently anxious with and lashes out at. The Veteran further reported experiencing a lack of motivation since early 2016, losing several jobs at different car dealerships, and being unemployed since May of 2017. The Veteran endorsed experiencing periods of depression and suicidal ideation, with his worst period during 2011-2012. The Veteran endorsed psychiatric symptoms of depressed mood, anxiety, chronic sleep impairment, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control. The Veteran was described as appropriately dressed and groomed, with appropriate behavior and unimpaired communication. The Veteran denied current homicidal and/or suicidal ideation. The VA examiner reported that the Veteran’s psychiatric disability results in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran was afforded a VA examination in March 2018. The VA examiner noted a diagnosis of bipolar disorder and noted that the diagnosis is a correction of the service-connected unspecified depressive disorder. The Veteran reported being unemployed, living with his fiancée and two year-old son, and having minimal social support. The VA examiner noted increased financial pressures, citing a January 2018 social work note indicating a Veterans’ Organization helped the Veteran pay for rent and that the Veteran recently received Social Security disability payments. The Veteran endorsed symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The Veteran was described as alert, cooperative, and attentive with a dysphoric mood and congruent range of emotional depression. He did not appear as an imminent risk for harm to himself or others nor was there evidence of delusions or hallucinations. The VA examiner reported that the Veteran’s psychiatric disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. A March 2018 VA treatment record shows the Veteran’s report that he is not working due to being “blackballed” from the industry, as he has been told he is difficult to work with and doesn’t know how to speak to people. The Veteran reported caring for his fiancée’s two-year-old son and feeling conflicted and tense about the relationship with his fiancée. The Veteran stated that he is feeling depressed and sad over the past two years, with it becoming increasingly worse. The social worker reported that the Veteran poses no risk to himself nor others. An October 2020 VA treatment record notes the Veteran’s peer support group. The Veteran reported feeling depressed and that recent events in his life, including the death of his nephew, losing his job, lack of finances, and relationship struggles with his fiancée, has made it “almost impossible for [him] to take care of [himself].” A September 2020 VA treatment note shows the Veteran’s report of passive suicidal thoughts for years, consisting of not wanting to wake up. During these periods, he considers that he has a tree on which he could hang himself. He denied having any current plan or intent to do so. Noted verbal or non-verbal expressions of suicidal ideation included anger, anxiety, increased isolation, and sleep disturbance. The social worker reported that the Veteran is an intermediate acute risk. The Veteran was afforded a VA examination on December 28, 2020. The VA examiner noted a diagnosis of bipolar disorder, type I. The Veteran reported his fiancée ending their engagement and moving out with her son due to his mood swings and overall lability. He stated that the did not have sexual intimacy in over a year and fighting that sometimes got physical. The Veteran recently filed for bankruptcy. The Veteran reported that he spends his days alone at home and that his friends do not call him and thinks he pushes them away. In the past year, the Veteran has had seven jobs and reported that he is frustrated that his mental illness gets in the way of success. The Veteran endorsed symptoms of depressed mood, anxiety, near-continuous panic or depression, chronic sleep impairment, flattened affect, impaired judgment, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran was described as cooperative, depressed, with congruity to content affect. The Veteran began the interview lying in bed, but later turned on the lights sat upright. The VA examiner reported the Veteran as a low acute risk of suicidal ideation, reporting the last attempt in 2011 but present intrusive thoughts of suicide ideation. The VA examiner reported that the Veteran’s psychiatric disability results in total occupational and social impairment. A review of the Veteran’s Social Security Administration (SSA) records shows the Veteran reported needing help or reminders to shower and change clothes, but he can prepare his own meals, do laundry, taking out the trash, and clean. The Veteran further reported going outside four times a week. The Veteran’s hobbies and interests include sports, watching television, reading, and going on the computer. The Veteran reported spending time with others online everyday as well as on the phone. The Veteran stated that his frequent mood changes impacts his daily life in multiple ways, including losing jobs, causing stress, inability to finish what he’s started, and trouble remembering things. The Veteran listed multiple previous jobs, none lasting more than two years. See March 2012 Social Security Disability Benefits Questionnaire. Prior to November 27, 2017 During this time period, the Veteran endorsed symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. See December 2011 VA Examination Report. The Board further notes that the Veteran also experienced short-term memory loss. See September 2012 VA Treatment Record. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating, experiencing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). This is evidenced by the Veteran’s reports of having friends, holding multiple jobs that were impacted by his psychiatric symptoms, memory loss, depression, and chronic sleep impairment. See December 2011 VA Examination Report; see also September 2012 VA Treatment Record. However, the Board does not find that the Veteran’s symptoms reach the level of impairment associated with the 50 percent disability rating prior to November 2017. During this time period, there is no evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; impaired abstract thinking; difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he has been able to hold a job for three years and the December 2011 VA examiner reported that the Veteran’s bipolar symptoms have resulted in only some job losses. Furthermore, the December 2011 VA examiner only found occupational and social impairment due to mild or transient symptoms. The Board notes the Veteran’s suicide attempt in January 2012. See September 2012 VA Treatment Record. While the Veteran did make one suicide attempt in 2012, numerous psychologists have assessed his imminent risk of self-harm as low. Despite some passive suicidal ideation since that attempt, he has not shown intent or a plan. Temporary flare-ups of symptoms do not constitute a permanent increase in severity to warrant a higher rating than 30 percent. Therefore, the Board finds that the preponderance of the evidence does not warrant a disability rating in excess of 30 percent disability rating, prior to November 2017. November 27, 2017 to December 27, 2020 From November 27, 2017 to December 27, 2020, the Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control. The Veteran has stated that his psychiatric symptoms negatively affected his relationship with his then-fiancée, but he actively cared for her son, seeing himself as the child’s father figure. He also said that his psychiatric symptoms prevented him from socializing and his unstable moods lead him to isolate himself. He reported holding several jobs over the years, none for longer than a couple years, with his bipolar disorder contributing to his short periods of employment. See November 2017 and March 2018 VA Examination Reports. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating, experiencing occupational and social impairment with reduced reliability and productivity. This is demonstrated by his ability to interview for and obtain employment, but subsequent difficulty dealing with coworkers and maintaining employment. It is also demonstrated by his difficulty dealing with people in social situations and self-isolation, while managing to maintain his current family relationships. The Board notes the Veteran’s report of passive suicidal ideation. See August 2020 VA Treatment Records. Suicidal ideation is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, at no point during this period were such symptoms shown to result in occupational and social impairment with deficiencies in most areas as required for a 70 percent rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013) (holding that veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage). The Board recognizes that the 70 percent rating criteria do not distinguish between active and passive suicidal ideation and that, in some cases, the mere presence of suicidal ideation (ranging from passive thoughts of one’s own death to active thoughts of engaging in suicide-related behavior), may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin., 29 Vet. App. 10 (2017). However, “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead, 29 Vet. App. at 22 (internal citations omitted). In this case, as explained in detail above, the notations of suicidal ideation (passive or otherwise), even when considered with other symptoms, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. The Veteran denied suicidal ideation in his November 2017 and March 2018 VA examinations. Furthermore, the record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood, such that the Veteran’s symptoms equate to the severity, frequency and duration of near continuous panic or depression, impaired impulse control, obsessional rituals or spatial disorientation. While the Veteran did experience some symptoms contemplated by a 70 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the preponderance of the evidence warrants a 50 percent disability rating, and no higher, from November 2017 to December 2020. As of December 28, 2020 As of December 2020, the aforementioned medical evidence of record supports the finding that the Veteran’s overall symptomatology more nearly approximated the criteria for a 100 percent rating, but not sooner. Specifically, the December 2020 VA examiner noted the Veteran lives alone following the end of his engagement to his fiancée, that he recently filed for bankruptcy, and that he has held multiple jobs in the past year that were all impacted by his mental illness. The Veteran stated that he thinks his friend don’t call him because he pushes them away. The examiner endorsed symptoms including suicidal ideations, neglect of personal appearance and hygiene, panic attacks more than once a week and chronic sleep impairment, amongst others, and found that the Veteran’s bipolar disorder causes total occupational and social impairment. In light of these symptoms, the Board finds the Veteran has a total occupational and social impairment and warrants a rating of 100 percent from December 2020, but not sooner. REASONS FOR REMAND 1. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to December 28, 2020, on an extraschedular basis is remanded. The Veteran’s entitlement to a TDIU as of December 2020 is rendered moot in light of the 100 percent rating assigned, as he is not service-connected for any other disabilities. See, e.g., Bradley v. Peake, 22 Vet. App. 280 (2008). The Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. In Bradley v. Peake, the Court indicated that a schedular 100 percent rating for a single disability or for a combination of disabilities did not necessarily render moot a claim for a TDIU, because the grant of a TDIU could result in eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). 22 Vet. App. at 294. The Court subsequently declared that if a veteran were awarded a TDIU rating based on multiple underlying disabilities and then later received a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, the order of the awards would not be relevant to the inquiry as to whether any of the disabilities alone would render the Veteran unemployable and thus entitled to a TDIU rating based on that condition alone. Buie v. Shinseki, 24 Vet. App. at 250. However, because the Veteran is receiving the highest possible award (a 100 percent rating for a single service-connected disability) from December 2020 and is not service connected for any other disability, the claim for TDIU is moot from December 2020. Cf. Bradley, supra (holding that a 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact SMC eligibility based on receipt of service connection for a disability with a 100 percent rating and with a separate 60 percent rating). However, prior to December 2020, there is evidence of employment impairment, discussed above, due to the Veteran’s service-connected bipolar disorder. For the period prior to December 2020, the Veteran’s single disability rating did not meet the schedular criteria as outlined in 38 C.F.R. § 4.16 for entitlement to TDIU. However, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16 (b) (2019). Specifically, the regulations provide that, in exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In such a case, the Under Secretary for Benefits or the Director, Compensation Service is authorized to approve an award on an extraschedular basis. The Board is not authorized to award extraschedular benefits in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-36 (2015). Given the evidence of employment impairment due to the service-connected bipolar disorder, the RO should refer the Veteran’s claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating prior to December 2020. 38 C.F.R. § 4.16 (b) (2019). The matters are REMANDED for the following action: 1. Refer the claim of entitlement to TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.