Citation Nr: 21041539 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-00 216A DATE: July 9, 2021 ORDER Entitlement to a rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 5, 2016 forward is granted. REMANDED Entitlement to a TDIU prior to May 5, 2016, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The Veteran's service-connected back disability was not shown to be manifested by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, to include during flare-ups. 2. From May 5, 2016 forward, the Veteran was rendered unable to obtain or maintain substantially gainful employment due to his service-connected disabilities when considering his education, special training, and employment history. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met for any period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237. 2. The criteria for TDIU from May 5, 2016 forward have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1974 to February 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this claim in July 2019 for additional development. As the actions specified in the remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that since the most recent adjudication of this appeal by the agency of original jurisdiction (AOJ), additional evidence has been associated with the file. However, in a May 2021 statement the Veteran waived AOJ review of all additional evidence associated with the file since the most recent AOJ adjudication. 38 C.F.R. § 20.1305(c). As such, the Board may consider this additional evidence in the first instance. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca, 8 Vet. App. at 206. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's low back disability is rated under Diagnostic Code 5243. All spine disabilities covered by Diagnostic Codes 5235 to 5242 are rated according to the General Rating Formula for Diseases and Injuries of the Spine (General Formula) based on limitation of motion. 38 C.F.R. § 4.71a, General Formula. Under the General Formula, the spine is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. As an initial matter, the Board notes that effective February 7, 2021 VA amended the schedule of ratings for musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). However, this amendment did not change the rating criteria contained in the General Formula. Id. While the amendment did change the language contained in Diagnostic Code 5242 and 5243, these changes simply provided clarification that Diagnostic Code 5242 should be utilized for disc disease other than intervertebral disc syndrome and that Diagnostic Code 5243, governing intervertebral disc syndrome specifically, should be used only when there is disc herniation with compression and / or irritation of the adjacent nerve root. Id. at 76,462. As the amendment did not substantively change the rating criteria utilized in rating the Veteran's spine disability, the Board will not address the amendment further herein. Under the General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. See General Rating Formula for Diseases and Injuries of the Spine, Note 2. Additionally, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See General Rating Formula for Diseases and Injuries of the Spine, Note 5. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note 2. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. 1. Entitlement to an increased rating for a back disability. The Veteran contends his lumbar spine disability is more severe than his current disability rating reflects. His symptoms are rated as 20 percent disabling throughout the appeal period. The Board notes that the Veteran filed his claim for an increased rating in January 2010; therefore, the following analysis considers the relevant evidence of record up to one year prior to the date of claim. For the following reasons, the Board finds that a rating in excess of 20 percent is not warranted at any time during the period on appeal. The Veteran was provided with VA spine examinations in December 2011 and January 2020. In December 2011, the Veteran reported back pain with limitation of motion. He also endorsed flare-ups of his low back disability that were characterized by increased pain. Back pain was noted to limit the Veteran's ability to lift things. On examination, the Veteran had forward flexion to 80 degrees, reduced to 70 degrees following repetitive testing. The examiner observed the less motion than normal, noted pain present in all planes of movement, and the Veteran displayed pain on palpitation. The examiner stated that the Veteran did not have IVDS nor ankylosis. In January 2020, the Veteran continued to report back pain with limitation of motion. He also endorsed flare-ups of his low back disability that were characterized by increased pain, especially on cold and rainy days. Back pain was noted to limit the Veteran's ability to stand or walk for longer than an hour at a time. On examination, the Veteran had forward flexion to 60 degrees, with no further loss of range of motion after repetitive testing. Pain was present on forward flexion, as well as on weightbearing. No pain was observed on non-weightbearing or on passive range of motion testing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Localized tenderness was noted to be present on the right side of the Veteran's mid back. The examiner noted that the examination results were consistent with the Veteran's reports of functional loss during flare-ups and after repeated use over time. Sharp, 29 Vet. App. at 34-36. No ankylosis or loss of use was present. The examiner stated that the Veteran did not have IVDS. There is no evidence that any of the above examiners were either not competent or credible. Further, each assessment was based on the Veteran's own reports of his symptoms as well as each examiner's own objective examination of the Veteran's spine. The Board notes that the required testing for pain was not conducted and an estimate concerning motion loss during flare-usp was not provided during the December 2011 examination. However, these failures do not vitiate the accuracy or probative value of the other findings contained in the report. Further, the appropriate testing for pain and estimate concerning motion loss during flare-ups were obtained in the January 2020 VA examination, thereby curing the defects in the prior examination. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Both VA and private treatment records generally reflect on-going treatment for the Veteran's low back disability, with consistent reports of back pain and limitation of motion. However, no further range of motion testing, expressed in degrees, is included in either the VA or private treatment records. The Board acknowledges a March 2018 private treatment record summarizing an assessment administered by Dr. K.L. that noted no ankylosis and that the Veteran experiences pain at 30 degrees or less on flexion, but did not express the Veteran's range of motion in degrees. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 20 percent for the Veteran's low back disability is warranted. Both the VA examiners found that the Veteran was capable of forward flexion in excess of the degree of limitation contemplated by a 40 percent rating, and none of the examination reports or treatment records reflect that the Veteran has ankylosis. While the private treatment record documented that the Veteran experienced pain at 30 degrees, as noted the Veteran's full range of motion was not recorded, only the point at which pain began. As such, this record does not necessarily reflect that the Veteran's range of motion was in fact limited to 30 degrees. Further, even if it is assumed for the sake of argument that the record establishes limitation to 30 degrees, the VA examinations both prior to and after the notation reflect that the Veteran was capable of flexion in excess of 30 degrees. As such, the finding of pain at 30 degrees, even if accepted as a notation that motion ended at that point, is outweighed by the other evidence of record. In evaluating the Veteran's current level of disability for the period on appeal, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. However, the Veteran's noted loss of motion upon repetitive motion is already contemplated by the assigned 20 percent rating. The December 2011 examiner estimated that the Veteran likely lost approximately 10 degrees of his range of motion with repetitive use. However, even when 10 degrees is subtracted from any of the range of motion results from any of the examinations during the period on appeal, the Veteran at no point was limited to 30 degrees or less of forward flexion. Further, it was at no point noted that flare-ups or other factors resulted in the Veteran's lumbar or entire spine being fixed in place, with the January 2020 examiner specifically noting that the range of motion results taken at the time were representative of the Veteran's degree of limitation during flare-ups. Finally, the evidence does not reflect that the Veteran has the functional equivalent of ankylosis during flare-ups, with the January 2020 examiner specifically noting that the Veteran would still be capable of motion during a flare-up. In addition, there is no evidence of any of the symptoms associated with unfavorable ankylosis during flare-ups. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). As such, an increased rating in excess of 20 percent is not warranted based on additional functional loss during flare-ups or do to other factors. 38 C.F.R. §§ 4.40, 4.45. As noted above, the Veteran's complaints of pain on motion are fully contemplated by his current ratings. 38 C.F.R. § 4.59. No additional higher or alternative ratings under different Diagnostic Codes can be applied. None of the medical evidence reflects that the Veteran currently has a diagnosis of IVDS, or that he has at any point been prescribed bedrest by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. In light of the lay and medical evidence of record, an increased rating in excess of 20 percent based on incapacitating episodes is not warranted. Id. When evaluating disabilities of the spine, any associated objective neurologic abnormalities are to be rated separately under an applicable Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Here, service connection for the Veteran's left and right lower extremity radiculopathy has already been granted, and therefore those neurologic abnormalities are already contemplated by their assigned ratings. Further the Veteran is currently separately appealing the initial ratings assigned for the left and right lower extremity radiculopathy, and therefore the issue of entitlement to increased ratings for those disabilities is not within the scope of the current appeal. Chavis, 2021 U.S. App. Vet. Claims LEXIS 660. No other neurologic abnormalities have been noted as being associated with the low back disability. As such, additional separate compensable ratings are not warranted. 38 C.F.R. § 4.71a, General Formula, Note 1. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). Accordingly, the Board finds that a rating in excess of 20 percent is not warranted for the lumbar spine disability at any time for the period on appeal. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal for higher rating for lumbar spine disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU The Board notes that on May 2019, VA received an, on its face, untimely appeal to the Board for the issue of entitlement to a TDIU. In response to this, the AOJ sent the Veteran and his representative a letter dated May 24, 2019 advising that the appeal was untimely and that if the Veteran wished to appeal that decision, then they would need to file a Notice of Disagreement (NOD) within one year from the date of that decision. The Board notes that no such NOD has been received. However, the Veteran's claim for a TDIU was raised during the pendency of his appeal of increased rating claims for his service-connected lumbar spine disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) in January 2016, when VA received an August 8, 2013 private lumbar spine impairment questionnaire from Dr. S. S., which noted that the Veteran would not be capable of gainful employment due to the symptoms and limitations stemming from his spinal impairment. The Veteran continues to assert that his low back condition prevents him from securing and following a substantially gainful occupation. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341 (a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, will be considered as one disability. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" has been interpreted to consist of two components: one economic and one noneconomic. Ray v. Wilkie, 31 Vet. App. 58, 7274 (2019). The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. at 73. With respect to the noneconomic component, when determining whether a veteran can secure and follow a substantially gainful occupation, consideration should be given to the following: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required; and, (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. at 7374. 2. Entitlement to a TDIU from May 5, 2016 forward. As an initial matter, the Board notes that the Veteran does not meet the schedular criteria for the award of a TDIU prior to May 5, 2016, which is addressed in the remand section below. This portion of the decision will address only entitlement to a TDIU from May 5, 2016 forward, the period during which the Veteran met the schedular criteria for a TDIU and therefore the period during which the Board may award a TDIU in the first instance. From May 5, 2016 forward, the Veteran is service-connected for an adjustment disorder (rated 50 percent disabling effective May 5, 2016); a lumbar spine disability (rated 20 percent disabling); radiculopathy of the right and left lower extremities (each rated 20 percent disabling); and pseudofolliculitis barbae (rated 0 percent disabling). The Veteran's combined disability rating, with consideration of the bilateral factor, is 80 percent. See 38 C.F.R. § 4.25, Combined Ratings Table. Therefore, from May 5, 2016 forward the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher, and a combined rating of at least 70 percent. As such, the Board finds that the Veteran meets the percentage requirements under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU as of May 5, 2016. With the threshold requirements satisfied, the Board must determine whether the Veteran's service connected disabilities precluded him from obtaining and maintaining substantially gainful employment from May 5, 2016 forward. On his formal claim for a TDIU the Veteran reported that he had most recently worked for the New York City Transit Authority (NYCTA) as a cleaner from July 1985 to October 2010. Additional evidence of record indicates that the Veteran held prior jobs in food service and as a security guard. The Veteran reported that he had a high school education, as well as some cooking training. The Veteran's report of his employment was verified by the NYCTA in July 2017 correspondence, in which the NYCTA stated that the Veteran retired in October 2010. At a June 2016 VA mental disorders examination, he stated that he is currently unemployed. The Veteran stated that he last worked for the NYC transit authority as a cleaner but that he retired because he was having a lot back pain that made it difficult to work. Upon examination, the VA examiner opined that the Veteran's adjustment disorder 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. In June 2019, the Veteran underwent an additional mental disorders examination. The VA examiner determined that the Veteran's adjustment disorder is productive of 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. In January 2020, the Veteran underwent an examination to assess his low back condition. The VA examiner determined that the Veteran's back disability impacts his ability to perform occupational tasks, stating that the Veteran cannot stand or walk for more than an hour at a time. At a May 2021 VA examination of his peripheral nerve condition (radiculopathy of the upper and lower extremities), the Veteran reported that his symptoms prevent him from prolonged standing or walking. The VA examiner opined that this condition does not impact the Veteran's ability to work. Finally, in a June 2011 decision the Social Security Administration (SSA) determined that the Veteran was unemployable due primarily to his low back disability, with other unspecified arthropathies listed as a secondary diagnosis. While SSA disability determinations are not binding on the Board, the SSA finding that the Veteran was disabled primarily due to a service-connected disability is entitled to significant probative weight. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Based on the foregoing evidence of record, the Board finds that from May 5, 2016 forward the Veteran has been rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. As discussed above, the Veteran's work history consists of approximately 25 years as a cleaner, with additional work experience prior to that in other non-sedentary professions. The spine examinations of record reflect that the Veteran has limited range of motion of the spine and limitations on his ability to stand and walk for prolonged periods. Given that the Veteran's work history is entirely in areas requiring physical labor and extensive standing and walking, the Board finds the limitations imposed by the low back and bilateral lower extremity radiculopathy would significantly interfere with the Veteran's ability to do the physical tasks required of work. Ray, 31 Vet. App. at 7274. As to the Veteran's ability to perform the mental tasks required of work, the Board notes that the examinations of record reflect that he has occupational impairment due to impaired sleep, diminished affect, irritability, and difficulty establishing and maintaining effective relationships symptoms. The Board further notes that a May 2019 letter of record from private psychologist, R.A.S., opined that he should be considered unemployable as he is "totally disabled emotionally and unable to function at any job in any capacity." While this assessment is much more severe than the level of occupational impairment noted by the VA psychiatric examiners, the Board finds that the Veteran's psychiatric disability does result in at least moderate impairment with respect to the mental abilities required for work. Id. In sum, the Board finds that the Veteran is rendered unemployable due to the combined effects of his service-connected disabilities from May 5, 2016 forward. The Veteran's psychiatric disability results in difficulty concentrating and interacting with others, and his physical disabilities significantly interfere with his ability to perform jobs requiring physical labor. While the Board notes that the Veteran may be theoretically capable of sedentary employment, in light of the fact that the Veteran's work history is exclusively in non-sedentary employment, the Board finds that it is unlikely that the Veteran would be able to secure such employment. Finally, as noted the SSA has determined the Veteran to be unemployable due to his service-connected disabilities. As such, entitlement to a TDIU from May 5, 2016, is warranted. 38 C.F.R. §§ 4.3, 4.7, 4.16. REASONS FOR REMAND 1. Entitlement to a TDIU prior to May 5, 2016. For the period prior to May 5, 2016, the Veteran does not meet the schedular criteria for a TDIU. Accordingly, a TDIU cannot granted under the schedular provisions of 38 C.F.R. § 4.16(a) prior to May 5, 2016. However, a TDIU may be granted on an extra-schedular basis where a veteran who fails to meet the schedular percentage requirements but is nonetheless unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the evidence of record reflects that the Veteran's low back and bilateral lower extremity radiculopathy may have rendered him unemployable prior to May 5, 2016. As such, a remand is necessary so that the issue of entitlement to a TDIU prior to May 5, 2016 may be referred to for extraschedular consideration. The matters are REMANDED for the following action: 1. Forward the Veteran's claim to the Director, Compensation Service, for consideration of the assignment of a total disability rating based upon individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(b) prior to May 5, 2016. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.