Citation Nr: 21026972 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-00 701 DATE: May 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal from January 1, 2013 to May 1, 2013 is denied. Entitlement to a TDIU for the period on appeal from January 1, 2015 to August 21, 2015 is denied. Entitlement to nonservice-connected pension benefits for the period on appeal from January 1, 2013 to May 1, 2013 is denied. Entitlement to nonservice-connected pension benefits for the period on appeal from January 1, 2015 to August 21, 2015 is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for residuals of a left elbow injury with sprain is remanded. Entitlement to a TDIU for the period on appeal from September 26, 2011 to December 31, 2012 is remanded. Entitlement to a TDIU for the period on appeal from May 2, 2013 to December 31, 2014 is remanded. Entitlement to nonservice-connected pension benefits for the period on appeal from September 26, 2011 to December 31, 2012 is remanded. Entitlement to nonservice-connected pension benefits for the period on appeal from May 2, 2013 to December 31, 2014 is remanded. FINDINGS OF FACT 1. For the period on appeal from January 1, 2013 to May 1, 2013, the Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment. 2. For the period on appeal from January 1, 2015 to August 21, 2015, the Veteran's service-connected disabilities did not preclude him from securing and following substantially gainful employment. 3. For the period on appeal from January 1, 2013 to May 1, 2013, the Veteran was not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. 4. For the period on appeal from January 1, 2015 to August 21, 2015, the Veteran was not 65 years of age or older and was not permanently and totally disabled from nonservice-connected disabilities. CONCLUSIONS OF LAW 1. For the period on appeal from January 1, 2013 to May 1, 2013, the criteria for the assignment of a TDIU were not met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.19. 2. For the period on appeal from January 1, 2015 to August 21, 2015, the criteria for the assignment of a TDIU were not met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.19. 3. The criteria for nonservice-connected pension benefits for the period on appeal from January 1, 2013 to May 1, 2013 have not been met. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. 4. The criteria for nonservice-connected pension benefits for the period on appeal from January 1, 2015 to August 21, 2015 have not been met. 38 U.S.C. §§ 1513, 1521, 5107; 38 C.F.R. §§ 3.102, 3.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1989 to November 1990. During his period of service, he earned the Army Service Ribbon, Marksman Qualification Badge (9mm), and Second-Class Qualification Badge (Hand Grenade). In July 2020, the Veteran's attorney submitted VA Form 10182, on the issues of a higher rating for left upper extremity neuropathy and major depressive disorder, as well as entitlement to an earlier effective date for the grant of service connection for major depressive disorder. That appeal is separately docketed under VA's new appeals system the Appeals Modernization Act and will be the subject of a later decision. He also has a separate appeal filed in December 2019 for an increased rating for left lower extremity neuropathy; however, he requested a hearing before the Board on that issue, the scheduling of which remains pending. As discussed in more detail below, the Board has split the TDIU and nonservice-connected benefits claims into various time periods according to the facts (in particular, time periods the Veteran was gainfully employed versus time periods he was not). The RO has already awarded TDIU beginning August 22, 2015, and, as that was a full grant of the benefit sought, the Board is focused on the time period on appeal prior to that date. As for nonservice-connected benefits, with the award of TDIU on August 22, 2015, that claim is moot, as TDIU provides a much greater monetary benefit for the Veteran. 1. Entitlement to a TDIU from January 1, 2013 to May 1, 2013 2. Entitlement to a TDIU from January 1, 2015 to August 21, 2015 In a September 26, 2011 statement, the Veteran asserted that he had difficulty maintaining gainful employment due to his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability 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 ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In order for a Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other Veterans who meet the basic schedular criteria. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361. A. From January 1, 2013 to May 1, 2013 For the period on appeal from January 1, 2013 to May 1, 2013, the Veteran was service-connected for major depressive disorder associated with residuals of C6-7 cervical spine fracture, evaluated as 50 percent disabling, from January 20, 2012; residuals of C6-7 cervical spine fracture, evaluated as 20 percent disabling, from February 22, 2010; and residuals of left elbow injury with sprain, evaluated as 10 percent disabling, effective June 21, 1997. Thus, the Veteran's combined disability rating is 30 percent, effective February 22, 2010, and increased to 60 percent, effective January 20, 2012. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more from January 1, 2013 to May 1, 2013, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet the schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU on an extraschedular basis, there must be impairment so severe that it is impossible for the average person to secure and follow substantially gainful employment. The record indicates that the Veteran completed a bachelor's degree in Business/Project Management and continued coursework in Early Childhood Education. There is no evidence of additional specialized education or training. The record reflects that the Veteran worked on an intermittent basis as a truck driver until May 1, 2013. Here, a review of the competent evidence of record, when taken in total, does not suggest that the Veteran was unable to obtain or maintain substantially gainful employment on account of his service-connected disabilities for the period on appeal from January 1, 2013 to May 1, 2013. Therefore, referral for an extraschedular rating is not warranted. The Veteran's March 2016 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) shows that the Veteran worked for Gas, Inc. until May 1, 2013. The evidence of record also includes Veteran's 2013 W-2 and Earnings Summary, which shows the Veteran earned $13,812.75 in gross wages. The poverty threshold for one person in 2013 was $11,888.00. The Board notes that the Veteran's income exceeds the federal poverty level for an individual for 2013; thus, for the period on appeal from January 1, 2013 to May 1, 2013, the record does not show, nor does the Veteran assert, that he was prevented from obtaining or maintaining substantially gainful employment. He was, as a matter of fact, working during this time and did earn a gainful wage. B. From January 1, 2015 to August 21, 2015 For the period on appeal from January 1, 2015 to April 28, 2015, the Veteran was service-connected for major depressive disorder associated with residuals of C6-7 cervical spine fracture, evaluated as 50 percent disabling, from January 20, 2012; residuals of C6-7 cervical spine fracture, evaluated as 20 percent disabling, from February 22, 2010; and residuals of left elbow injury with sprain, evaluated as 10 percent disabling, effective June 21, 1997. Thus, the Veteran's combined disability rating is 30 percent, effective February 22, 2010, and increased to 60 percent, effective January 20, 2012. Accordingly, the Veteran did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) prior to April 29, 2015. The Board notes that service connection for peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling; and peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling, were awarded, effective April 29, 2015. Hence, the Veteran met the schedular criteria for TDIU rating per 38 C.F.R. § 4.16(a) for the period on appeal from April 29, 2015 to August 21, 2015. However, for the award of a TDIU on both a schedular and extraschedular basis, the evidence must still show that the Veteran is unable to secure and follow substantially gainful employment. The Veteran's March 2016 VA Form 21-8940 shows that the Veteran worked for Gwinnett County Public Schools from July 29, 2014 until August 21, 2015. The evidence of record also includes the Veteran's 2015 W-2 Wage and Tax Statement, which shows the Veteran earned $13,094.39 in gross wages. The poverty threshold for one person in 2015 was $12,082.00. Thus, even considering the Veteran reportedly became too disabled to work on August 21, 2015, the Board notes that the Veteran's income exceeds the federal poverty level for an individual for 2015. Moreover, the record does not show, nor does the Veteran assert, that he was prevented from obtaining or maintaining substantially gainful employment for the periods on appeal from January 1, 2015 to April 28, 2015, or from April 29, 2015 to August 21, 2015. While the Veteran might have had some limitations from his service-connected disabilities, a TDIU is only warranted when service-connected disabilities prevent a person from obtaining or maintaining substantially gainful employment, which is not shown during the periods on appeal from January 1, 2015 to April 28, 2015, or from April 29, 2015 to August 21, 2015. Moreover, there is no evidence, nor has the Veteran asserted, that his employment was considered a protected or sheltered work environment. Because the Veteran was, as a matter of fact, gainfully employed during the periods on appeal, the Board finds that he is not entitled to a TDIU. Accordingly, the Board finds that a TDIU is, therefore, denied on an extraschedular basis for the period on appeal from January 1, 2013 to May 1, 2013, and from January 1, 2015 to April 28, 2015. Moreover, a TDIU is denied on a schedular basis for the period on appeal from April 29, 2015 to August 21, 2015. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to a TDIU, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 3. Entitlement to nonservice-connected pension benefits for the period on appeal from January 1, 2013 to May 1, 2013 4. Entitlement to nonservice-connected pension benefits for the period on appeal from January 1, 2015 to August 21, 2015 Nonservice-connected pension benefits are payable to veterans of a period of war who meet the service requirements prescribed in 38 U.S.C. § 1521(j) because of a disability, or to survivors of such veterans. 38 U.S.C. § 1541(a); 38 C.F.R. § 3.3(b)(4). Basic entitlement exists if (i) the veteran served in the active military, naval or air service for 90 days or more during a period of war; (ii) is permanently and totally disabled from nonservice-connected disability not due to his or her own willful misconduct; and (iii) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the Maximum Annual Pension Rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C. §§ 1502, 1521(j); 38 C.F.R. § 3.3(a). A veteran is considered permanently and totally disabled if the veteran is any of the following: (1) a patient in a nursing home for long-term care because of disability; (2) disabled as determined by the Commissioner of Social Security for the purpose of any benefits administered by the Commissioner; (3) unemployable as a result of disability reasonably certain to continue throughout the life of the person; or (4) suffering from any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person, or any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. 38 C.F.R. § 3.3(a)(3)(vi)(B). The Veteran served on active duty in the United States Army from March 1989 to November 1990, which includes service during the Persian Gulf War Era. 38 C.F.R. § 3.2 (2019). Thus, he meets the requirement of having service during a recognized period of war. The Veteran's DD-214 shows his date of birth as June 9, 1968. Therefore, as the Veteran was not at least 65 years old at the time of application for pension benefits, it will need to be established that he is permanently and totally disabled from nonservice-connected disabilities. For the periods on appeal from January 1, 2013 to May 1, 2013, and from January 1, 2015 to August 21, 2015, the evidence of record is negative for any indication that the Veteran was permanently and totally disabled, to include as due to nonservice-connected disabilities. There is no evidence that the Veteran received Social Security Administration disability benefits from January 1, 2013 to May 1, 2013, or from January 1, 2015 to August 21, 2015; nor was he a patient in a nursing home. Moreover, the evidence of record does not demonstrate that the Veteran was unemployable or had a disability that would render the average person unable to follow a substantially gainful occupation. As noted above, he was in fact working during these time periods. One way for a veteran to be considered permanently and totally disabled for pension purposes is to satisfy the "average person" test. See 38 U.S.C. § 1502(a); 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet. App. 444 (1992); Talley v. Derwinski, 2 Vet. App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or feet, or one hand and one foot, or the sight of both eyes, or be permanently helpless or permanently bedridden; or the permanent disabilities must be rated, singly or in combination, as 100 percent. The Board finds that the evidence of record does not demonstrate that the Veteran meets any of those criteria. Alternatively, all veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one 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 ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (2019). When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. See 38 C.F.R. § 4.17 (2019). Here, there is no competent and credible evidence of record which states that the Veteran was permanently and totally disabled due to a nonservice-connected disability for the periods on appeal from January 1, 2013 to May 1, 2013, or from January 1, 2015 to August 21, 2015. Moreover, the Veteran was not in receipt of nonservice-connected ratings for his claimed disabilities, did not suffer permanent loss of use of his eyes or any of his extremities, nor was he permanently helpless or bedridden during the periods on appeal from January 1, 2013 to May 1, 2013, or from January 1, 2015 to August 21, 2015. 38 C.F.R. § 4.15. The Board acknowledges that the Veteran had nonservice-connected disabilities; however, they were not shown by competent credible evidence to be permanently and totally disabling. In fact, the evidence of record reflects the Veteran had completed four years of college and was employed a truck driver with Gas, Inc. during the period on appeal from January 1, 2013 to May 1, 2013. Moreover, he was employed as a paraprofessional with Gwinnett County Public Schools during the period on appeal from January 1, 2015 to August 21, 2015. Thus, the Veteran was not prevented from maintaining gainful employment for the periods on appeal from January 1, 2013 to May 1, 2013 and from January 1, 2015 to August 21, 2015. In sum, the evidence of record shows that the Veteran was not 65 years old during the periods on appeal from January 1, 2013 to May 1, 2013, and from January 1, 2015 to August 21, 2015, and was not permanently and totally disabled as due to nonservice-connected disabilities. Accordingly, the Board finds that the claim of entitlement to nonservice-connected pension benefits for the period from January 1, 2013 to May 1, 2013, and from January 1, 2015 to August 21, 2015 must be denied. The Board need not make a determination as to whether the Veteran met the income requirements for entitlement to a pension for the periods from January 1, 2013 to May 1, 2013, and from January 1, 2015 to August 21, 2015, as the evidence of the Veteran's age and level of disability are dispositive. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to nonservice-connected pension benefits, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to a higher rating for residuals of a left elbow injury with sprain After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for an initial rating in excess of 10 percent for residuals of a left elbow injury with sprain. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). The Veteran last underwent a VA elbow and forearm conditions examination in September 2014. However, the examination of record does not provide sufficient information regarding range of motion. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In this case, the VA examination of record does not fully comply with the requirements set forth in Correia. As such, a remand is, therefore, required in order to obtain an adequate examination and opinion to correct this deficiency. 2. Entitlement to a TDIU for the period on appeal from September 26, 2011 to December 31, 2012 3. Entitlement to a TDIU for the period on appeal from May 2, 2013 to December 31, 2014 As noted above, the Veteran asserted that he had difficulty maintaining a gainful employment due to his service-connected disabilities in a September 26, 2011 statement. For the periods on appeal from September 26, 2011 to December 31, 2012; and from May 2, 2013 to December 31, 2014, the Veteran was service-connected for major depressive disorder associated with residuals of C6-7 cervical spine fracture, evaluated as 50 percent disabling, from January 20, 2012; residuals of C6-7 cervical spine fracture, evaluated as 20 percent disabling, from February 22, 2010; and residuals of left elbow injury with sprain, evaluated as 10 percent disabling, effective June 21, 1997. Thus, the Veteran's combined disability rating is 30 percent, effective February 22, 2010, and increased to 60 percent, effective January 20, 2012. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more prior to April 29, 2015, he does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). A February 2012 VA treatment note indicates that the Veteran reported cervical spine pain that radiated to his shoulders, down to the left medial forearm, and to the fourth and fifth fingers. The Veteran described his cervical symptoms as constant dull pain with occasional sharp pain. He also reported low back pain that radiated to the left lower leg down to the top of the foot. He described hs lumbar symptoms as constant sharp and dull pain. He states that the pain was aggravated by sitting and walking for long periods and was alleviated by lying down and resting. The Veteran appeared for a VA elbow and forearm conditions examination in May 2012. The examiner noted that the Veteran's elbow disability impacted his ability to work, in that his disability was manifested by left elbow pain and difficulty with heavy lifting. The Veteran appeared for a VA cervical spine conditions examination in October 2012. The examiner noted that the Veteran's cervical spine disability did not impact his ability to work. In a February 2013 statement, the Veteran reported that he could not sit or stand for longer than 10 minutes at a time. He indicated that he could not lift items without pain and experienced weakness in the left hand. The pain disrupted his sleep and he experienced increased pain when the weather changed. The Veteran provided another statement in June 2014, which recounted the pain and symptoms he continued to experience as a result of his service-connected disabilities. The Veteran also reported experiencing depression, as well as sleep disturbance due to pain and stress. He further indicated that his last truck driving job was very stressful and physically demanding. He also expressed his disappointment in his inability to get a decent job because of his condition. A July 2014 VA treatment note documents the Veteran's report that he had to change careers, as he was no longer able to drive trucks due to his pain; thus, he stated that he had been unemployed for several years. Though he was unable to complete his degree program under the Veterans Retraining Assistance Program (VRAP), he did report that he was already certified to teach and would be sitting for the Georgia Assessments for the Certification of Educators (GACE) II examination; however, he reported that he had not studied due to pain. The Veteran next appeared for a VA elbow and forearm conditions examination in August 2014. The examiner noted that the Veteran's elbow disability impacted his ability to work, in that he was unable to lift objects without pain and had pain on range of motion. A September 2014 VA treatment note documents the Veteran's report having a new job working full-time as a paraprofessional with pre-kindergarten students. His duties involved a lot of bending over and being on his feet for much of the day. The Veteran appeared for another VA peripheral nerve conditions examination in April 2015. The examiner noted that the Veteran's elbow disability impacted his ability to work, in that he had difficulty with prolonged standing and walking, which affected physical employment. He also had decreased sensation in his left hand, which affected sedentary and physical employment. The Veteran's March 2016 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) shows that the Veteran worked as a truck driver for Gas, Inc. from June 2012 to May 2013. The Veteran began employment with Gwinnett County Public Schools in July 2014 and remained employed as a paraprofessional until August 21, 2015. The evidence of record also contains income and tax statements submitted in support of his claim of entitlement to a TDIU. The Veteran did not report any income in 2011. A 2012 W-2 Wage and Tax Statement shows the Veteran earned $11,000.99. The Board notes that the poverty threshold for one person in 2012, according to the U.S. Department of Commerce, Bureau of the Census, was $11,720.00; thus, the Veteran's employment can be deemed marginal during 2012. A 2014 W-2 Wage and Tax Statement shows the Veteran earned $5,664.00. The poverty threshold for one person in 2014 was $12,071.00; thus, as the Veteran's income was substantially below the poverty threshold, his employment can be deemed marginal during 2014. The Board finds that the evidence of record as discussed above suggests that the Veteran's ability to obtain and maintain substantially gainful employment may have been impacted by his service-connected disabilities. As the Board cannot adjudicate entitlement to a TDIU on an extraschedular basis in the first instance, referral is required. As such, remand of the Veteran's claim of entitlement to TDIU is warranted for referral to the Director of Compensation Service for extraschedular consideration for the periods on appeal from September 26, 2011 to December 31, 2012; and from May 2, 2013 to December 31, 2014. See 38 C.F.R. § 4.16(b). 4. Entitlement to nonservice-connected pension benefits for the period on appeal from September 26, 2011 to December 31, 2012 5. Entitlement to nonservice-connected pension benefits for the period on appeal from May 2, 2013 to December 31, 2014 The Veteran's claims of entitlement to nonservice-connected pension benefits is inextricably intertwined with his claims for entitlement to a TDIU, which are being remanded for further development. Therefore, a final decision on the claims for nonservice-connected pension benefits cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with the appropriate examiner to determine the current severity and manifestations of his service-connected left elbow disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. (a.) The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected left elbow disability. All appropriate testing, including range of motion, should be performed. (b.) The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (c.) The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. If there is no pain and/or no limitation of function, such facts must be noted in the report. (d.) Pursuant to Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing, if applicable to the joint involved. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 2. Refer the Veteran's claims of entitlement to a TDIU for the periods on appeal from September 26, 2011 to December 31, 2012; and from May 2, 2013 to December 31, 2014, to the Director of Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. A copy of the Director's decision must be associated with the claims file. MICHELLE KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Joseph, 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.