Citation Nr: 21024835 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-34 335 DATE: April 26, 2021 ORDER Entitlement to an increased rating greater than 10 percent for Graves' disease is denied. Entitlement to an increased compensable rating for pulmonary tuberculosis (TB) is denied. Entitlement to service connection for hypertension, secondary to service-connected Graves' disease on a causation basis, is granted. Entitlement to an effective date of July 30, 2013 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, subject to the law and regulations governing the award of monetary benefits. REMANDED Entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to July 30, 2013 is remanded. FINDINGS OF FACT 1. The Veteran's Graves' disease symptoms do not more nearly approximate tachycardia, tremor, and increased pulse pressure and other residuals of the disease or complications of treatment are separately service connected. 2. The Veteran's pulmonary TB is currently inactive and was not shown to have compensable residuals. 3. The Veteran’s hypertension is caused by his service-connected Graves' disease. 4. From July 30, 2013, but no earlier, the Veteran met the schedular criteria for a TDIU and was unemployable due to his service-connected disabilities and there was a pending rating claim of which the issue of entitlement to a TDIU was part and parcel. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for Graves' disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.13, 4.14, 4.119, Diagnostic Code (DC) 7900. 2. The criteria for a compensable rating for pulmonary TB are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.6, 4.7, 4.97, DC 6731. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for hypertension, secondary to Graves' disease, on a causation basis, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for a TDIU due to service-connected disabilities from July 30, 2013 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1978. These matters initially came before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating greater than 10 percent Graves' disease, a compensable rating for pulmonary TB, and service connection for hypertension. In July 2013 the Veteran filed a notice of disagreement (NOD) and in June 2016 the RO issued a statement of the case (SOC). In July 2016 the Veteran filed a substantive appeal (via VA Form 9). In November 2016 the Veteran testified at a travel board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. In July 2019 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to retrieve medical records and to determine the nature and etiology of the Veteran’s hypertension. The Board also remanded the Veteran’s claim to determine the current severity of the Veteran’s service-connected Graves' disease and pulmonary TB. As will be discussed below, the RO substantially complied with the July 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Additionally, a November 2020 decision granted entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) and assigned an effective date of March 6, 2020. In Harper v. Wilkie, 30 Vet. App. 356, 362 (2018), the Court held that even if TDIU is granted for part of the claim period, TDIU nonetheless remains part and parcel of a veteran’s increased rating claim, if raised by the evidence of record, unless they have received the highest rating possible for the whole period on appeal. In this case, the Veteran indicated in his March 2020 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that he last worked full time on September 08, 2008. Thus, the issue of entitlement to a TDIU has been raised by the record prior to March 6, 2020. For the reasons below, the issue of entitlement to a TDIU has been bifurcated into two separate time periods; prior July 30, 2013 and from July 30, 2013. Such bifurcation of the issue permits a grant of benefits under 38 C.F.R. § 4.16(a) to which the evidence that is of record shows the Veteran is entitled, without delay of this grant of benefits awaiting compliance with procedural adjudication of the remainder of the TDIU appeal under 38 C.F.R. § 4.16(b) for the period for which the service-connected disabilities did not meet the schedular criteria. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA’s discretion). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Graves' disease A 10 percent rating is currently assigned to the Veteran's service-connected Graves' disease, effective May 11, 2004, pursuant to 38 C.F.R. § 4.119, DC 7900. The Board notes that there has been a regulation change to DC 7900, effective December 10, 2017. See 82 Fed. Reg. 50802 (Nov. 2, 2017). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the Veteran will be applied. However, the amended regulations cannot be applied any earlier than the December 10, 2017 effective date of the amendments. Under the old criteria for DC 7900, a 10 percent rating for hyperthyroidism required tachycardia, which may be intermittent, and tremor; or continuous medication required for control. A 30 percent rating required tachycardia, tremor, and increased pulse pressure or blood pressure. A 60 percent rating required emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure. A 100 percent required thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms. Under the revised rating criteria, effective December 10, 2017, a 30 percent rating requires hyperthyroidism, including, but not limited to Graves' disease for six months after initial diagnosis. Thereafter, residuals of the disease or complications of medical treatment are to be rated within the appropriate diagnostic code within the appropriate body system. Under the revised DC 7900, the criteria for a higher rating are not met. Although DC 7900 provides for a 30 percent rating for hyperthyroidism, to include Graves' disease, it is only assigned for six months after the initial diagnosis. Here, the Veteran was diagnosed with Graves' disease in 1976 as noted on the September 2020 VA examination report. Therefore, the 30 percent rating is no longer applicable as it has been decades since the initial diagnosis. A June 2013 VA examiner noted that the Veteran required continuous medication to control the Veteran’s thyroid condition. The VA examiner did not attribute any findings, signs or symptoms to his thyroid condition. The VA examiner noted exophthalmos. The Veteran’s pulse was regular and his blood pressure measured 143/84. In the July 2016 VA Form 9 the Veteran stated that he has great difficulty getting the correct amount of medication to regulate his thyroid. In an October 2016 letter, the Veteran’s private physician stated that the Veteran’s poorly controlled thyroid supplementation caused his weight gain. At the November 2016 Board hearing the Veteran stated that it is difficult for him to keep his blood pressure under control and he believes it is due to his Graves' disease. A February 2017 VA examiner who conducted a VA examination in January 2017 noted that the Veteran’s disease has remained the same since being diagnosed in service and that when not taking his medicine the Veteran reported symptoms such as nervousness and palpitations. The VA examiner attributed fatigue, cardiovascular symptoms, and cold intolerance to the Veteran’s Graves' disease. The Veteran’s pulse was regular and his blood pressure measured 130/75. A November 2017 private treatment note indicates that the Veteran experienced fatigue and unintentional weight gain. A September 2020 VA examiner noted that since the Veteran was diagnosed with Graves' disease his condition has stayed the same. The VA examiner noted that the Veteran experienced symptoms such as fatigue, cold intolerance, and weight gain. The VA examiner attributed the Veteran’s mental and psychological symptoms to his Graves' disease, including hallucination of thoughts. The VA examiner noted the Veteran experienced exophthalmos. The Veteran’s pulse was regular and his blood pressure measured 124/86. In the present case, the Veteran requires continuous medication to control his Graves' disease and he has exhibited symptoms such as increased blood pressure, emotional instability, fatigability, eye involvement, and sympathetic cardiovascular symptoms. The evidence does not show tachycardia, tremors, or increased pulse pressure. The Veteran is currently service connected for several disabilities associated with his Graves' disease (i.e. unspecified depressive disorder, proptosis, dry eye syndrome, diabetes mellitus type II, erectile dysfunction, hypertension, and coronary artery disease). As these disabilities are etiologically related to his Graves' disease and contemplate the Veteran’s symptomatology and disability picture, the Board will not discuss those symptoms within the context of evaluating the severity of the Veteran's Graves' disease. Although various manifestations of a single disability may be assigned separate disability evaluations, VA regulations preclude the practice of "pyramiding," which is the evaluation of the same manifestation of a disability under different diagnoses. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). The Court has noted that 38 U.S.C. § 1155 implicitly contains the concept that "the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology; such a result would overcompensate the claimant for the actual impairment of his earning capacity" and would constitute pyramiding. Esteban, 6 Vet. App. at 261, quoting Brady v. Brown, 4 Vet. App. 203 (1993). Because the Veteran has several service-connected disabilities associated with his Graves' disease which are separately rated, they cannot be used to establish entitlement to a higher rating for Graves' disease. That would constitute impermissible pyramiding, or the rating of the same disability under different Diagnostic Codes. 38 C.F.R. § 4.14. Based on the evidence of record, the Veteran’s symptoms associated with the his service-connected Graves' disease more closely approximate the type of symptoms described in the criteria for the currently assigned 10 percent disability rating when accounting for the other service-connected disabilities associated with his Grave’s disease. Therefore, the preponderance of the evidence is against a rating greater than 10 percent for the Veteran's Graves' disease and his claim must be denied. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As the Veteran underwent radiation treatment to reduce his thyroid hormone production, he is now in fact, hypothyroid. Given the facts as set forth above, the Veteran’s Grave’s disease could be rated under the provisions of DC 7903, instead of DC 7900. However, since this rating is not higher than the Veteran's current rating under DC 7900, the Board does not find it necessary to change the Diagnostic Code for his current rating since the same symptoms would not result in a higher award. See Butts v. Brown, 5 Vet. App. 532 (1993) (noting that the choice of diagnostic code should be upheld if supported by explanation and evidence). 2. Pulmonary TB A noncompensable rating is currently assigned to the Veteran's pulmonary TB, effective May 11, 2004, pursuant to 38 C.F.R. § 4.97, DC 6731. Under DC 6731, inactive pulmonary TB is rated based on residuals, such as interstitial lung disease, restrictive lung disease or when obstructive lung disease is the major residual, as chronic bronchitis. Restrictive lung diseases and interstitial lung diseases are rated under general rating formulas, while chronic bronchitis is rated under DC 6600. A June 2013 VA examiner noted that the Veteran’s pulmonary TB is inactive. The VA examiner did not note any residual findings, signs, and/or symptoms due to his pulmonary TB. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. At the November 2016 Board hearing the Veteran testified that his pulmonary TB is inactive but that he experiences bronchitis and shortness of breath which may be related to his pulmonary TB. A November 2020 VA examiner noted that the Veteran’s pulmonary TB was inactive since 1978. The VA examiner noted that the Veteran did not have any residual findings, sings and/or symptoms due to his pulmonary TB. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. The Board has considered the Veteran’s assertions that his current pulmonary symptoms are related to his service-connected pulmonary TB. However, while lay witnesses are competent to opine as to some matters of relating to diagnosis and etiology, they are not competent to opine as to complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Board finds the record does not show any specific functional impairment or symptoms related to pulmonary TB. The medical evidence is devoid of any complaints of, diagnosis of or treatment for pulmonary TB as this disease is currently inactive. Therefore, the preponderance of the evidence is against the Veteran's claim for a compensable schedular rating for his pulmonary TB. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered whether the Veteran is entitled to a higher disability rating for inactive pulmonary TB under diagnostic codes. However, the Veteran is not entitled to a separate disability rating under DC 6723 because VA regulation does not allow a compensable rating for inactive pulmonary TB to be combined with ratings for other respiratory disabilities. See 38 C.F.R. § 4.97, Note 2 following the General Rating Formula for Inactive Pulmonary TB. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Hypertension Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was caused by a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran has been diagnosed with hypertension. Thus, the remaining question is whether the Veteran’s service-connected Graves' disease caused his hypertension. In an October 2016 letter the Veteran’s private physician opined that the Veteran’s hypertension is at least likely as not proximately due to or the result of the Veteran’s service-connected Graves' disease. While the October 2016 physician relied on the service history provided by the Veteran, the discounting of a medical opinion that relied on service history provided by the Veteran is only warranted in certain circumstances, none of which are present here. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). The December 2020 VA examiner opined that the Veteran’s hypertension was less likely than not proximately due to or the result of the Veteran’s service-connected Graves' disease or coronary artery disease. The VA examiner explained that there is no specific evidence gathered from the Veteran’s history or noted in the medical literature to show his hypertension was caused by or aggravated beyond natural progression by his Graves' disease or coronary artery disease. In a January 2021 addendum, the VA examiner further explained that he reviewed a medical study that linked hypothyroidism to hypertension and concluded a thyroid condition of any type can cause a secondary hypertensive condition, however, this is rare and the Veteran’s service treatment records (STRs) are silent of any complaints, treatment or a diagnosis of hypertension. The Board finds the positive nexus opinion provided by the Veteran’s private physician to be equal in probative weight to the negative nexus opinion provided by the December 2020 VA examiner. Therefore, the evidence is at least evenly balanced as to whether the Veteran’s hypertension is related to his service-connected Graves' disease. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for hypertension, secondary to Graves' disease, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.310. 4. TDIU In the November 2020 rating decision, the RO granted entitlement to a TDIU, effective March 6, 2020, the date the Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In the present case, the Veteran was in receipt of service connection for unspecified depressive disorder associated with Graves’ disease rated 30 percent disabling, Graves' disease rated 10 percent disabling, proptosis associated with Graves’ disease rated 30 percent disabling, dry eye syndrome associated with Graves’ disease rated 20 percent disabling, and tinnitus rated 10 percent disabling for a combined 70 percent rating, effective July 30, 2013. Pursuant to 38 C.F.R. § 4.16(a)(2), disabilities resulting from a common etiology are considered a single disability for purposes of one 40 percent disability. As the Veteran’s unspecified depressive disorder, Graves' disease, proptosis, dry eye syndrome share a common etiology, the Veteran met the percentage requirements for a TDIU from July 30, 2013. The law regarding effective dates provides that, unless specifically stated otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A claim for a TDIU is a type of increased rating claim. See Dalton v. Nicholson, 21 Vet. App. 23, 3234 (2007). The effective date for the grant of an increased rating claim may be as early as one year prior to the date of claim if the increase occurred within that year. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2) ("[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date"). The Board notes that the Veteran filed claims for increased ratings for Graves' disease and pulmonary TB on May 20, 2013. On the Veteran’s March 2020 VA Form 21-8940 the Veteran stated that his Graves' disease, diabetes, and depression prevents him from securing or following any substantial gainful occupation. Under Rice v. Shinseki, a claim for TDIU is considered to be part and parcel of an increased rating claim (to include an initial higher rating claim), and therefore when evidence is submitted during the course of an appeal from an assigned disability rating, a claim for TDIU is raised and must be addressed. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In order for TDIU to be inferred as part and parcel of a pending claim, there must be a pending appeal from an assigned disability rating. Id. Here, the claim of entitlement to an increased rating for Graves' disease was ongoing when the Veteran submitted his formal application for TDIU in March 2020. Thus, the Veteran's claim for entitlement to a TDIU is not a free-standing claim because there was a pending increased rating appeal at the time the Veteran submitted his formal TDIU application. In addition, the Court held in Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) that when the issue of entitlement to a TDIU is raised as part and parcel of an increased rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal. Here, the issue of entitlement to a TDIU is part and parcel of a rating claim even though the formal TDIU claim was received March 6, 2020. As the issue of entitlement to a TDIU is part and parcel of the claim for an increased rating for Graves' disease, which was pending prior to March 6, 2020, and there is evidence that the Veteran was unemployable due to his service connected Graves' disease prior to that date, an effective of July 30, 2013, is warranted. That is the date on which the Veteran became eligible for a TDIU on a schedular basis. The RO’s November 2020 decision implied, and the above evidence reflects, that the Veteran’s service connected disabilities did not suddenly cause unemployability on March 6, 2020, but, rather, had caused unemployability from at least July 13, 2013. For the foregoing reasons, entitlement to an effective date of July 30, 2013, is warranted for a TDIU. REASONS FOR REMAND Entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to July 30, 2013 is remanded. In the present case, the Veteran has been granted an earlier effective for entitlement to a TDIU, effective July 30, 2013. As noted, the claim for an increased rating of which TDIU is part and parcel was filed on May 20, 2013. Thus, the appeal period begins one year prior to that date, on May 20, 2012, although in order for a date within a year of the date of claim to be the effective date requires that it was factually ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(3); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (noting the language specifying that the “effective date of an increase ‘shall be the earliest date’ that the evidence shows ‘an increase in disability had occurred’”). For the period prior to July 30, 2013, the Veteran was service connected for several disabilities but did not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a). However, the Board has now granted service connection for hypertension secondary to Graves' disease. The AOJ should therefore consider the issue of entitlement to a TDIU prior to July 30, 2013 after implementing the Board's grant of service connection for hypertension. If the Veteran meets the schedular requirements, the AOJ should readjudicate entitlement to a TDIU on this basis. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." In the present case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to July 30, 2013. However, even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted.” Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). (continued on next page) This matter is REMANDED for the following action: After implementing the Board's grant of service connection for hypertension, refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to July 30, 2013, to the Director of Compensation Service, for any period from May 20, 2012 during which the Veteran does not meet the criteria of 38 C.F.R. § 4.16(a), if any. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.