Citation Nr: 21042670 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-24 680 DATE: July 13, 2021 ORDER 1. Entitlement to a compensable rating for bilateral hearing loss is denied. 2. Entitlement to referral for consideration of a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to March 28, 2018 is denied. FINDINGS OF FACT 1. Valid audiological testing has demonstrated the Veteran's bilateral hearing loss to have manifested in no worse than Level I hearing loss in the left and right ears. 2. The preponderance of the evidence is against a finding that the Veteran was unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss has not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86; Diagnostic Code (DC) 6100. 2. The criteria for referral for an extraschedular TDIU rating were not met prior to March 28, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1984 to October 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A copy of the hearing transcript is associated with the claims file. In a letter dated in September 2020, the Veteran was notified that the VLJ who conducted the July 2016 Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. In October 2020, the Veteran responded that he did not want to appear at a Board hearing. Thus, there is no hearing request pending at this time, and the Board may proceed with further appellate review. In a March 2018 decision, the Board determined that the issue of entitlement to a TDIU has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). In the March 2018 decision, the Board remanded the claims on appeal for readjudication of the increased rating claim and development of the TDIU claim. The Veteran was granted TDIU in an April 2019 rating decision, effective March 28, 2018. In December 2020, the Board remanded the matter in order to obtain an updated VA audiological examination, which was provided in March 2021. The issue of TDIU, prior to March 28, 2018, was remanded because it is inextricably intertwined with the Veteran's hearing loss claim. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has alleged progressively worsening bilateral hearing loss that has caused him problems with employment and difficulty navigating conversations in day-to-day life. He has stated that tinnitus, hearing loss, and associated depression have rendered him unemployable. Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 using a mechanical formula. Disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI in DC 6100. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Rating Schedule establishes eleven Roman numeral auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average puretone threshold (derived from the results of puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz) and organic impairment of hearing acuity (measured by controlled speech discrimination test; Maryland CNC). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of decibel loss as measured by puretone threshold averages. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant puretone threshold average with the row that represents the relevant speech discrimination test result. Id. Exceptional patterns of hearing impairment are provided for in 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). However, Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R.§ 4.85(c). The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. Id. In cases where only one ear is service-connected for hearing loss, the nonservice-connected ear is assigned Roman numeral I for purposes of determining the appropriate rating according to Table VII. See 38 C.F.R. § 4.85(f). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for the Veteran's bilateral hearing loss. The reasons follow. The Veteran was granted service connection for bilateral hearing loss in an August 2012 rating decision, based on the results of a June 2012 audiological examination. A noncompensable rating was assigned by applying the Veteran's audiological test results, which showed the Veteran to have no worse than Level I hearing loss bilaterally, to Table VI. The Veteran recorded a 96 percent speech discrimination score in his left ear, and 100 percent speech discrimination score in his right ear. The Veteran filed his claim for an increased rating for bilateral hearing loss disability in September 2012. He underwent another VA audiological examination in February 2013. The Veteran again recorded speech discrimination scores of 96 percent in the left ear, and 100 percent in the right ear. Testing showed the following puretone thresholds, in decibels, obtained for the frequencies of interest in the bilateral ear, in Hertz (Hz): 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 35 35 35 40 36 LEFT 40 40 40 45 41 These results again indicated no worse than Level I hearing loss, bilaterally, which would continue to result in a noncompensable disability rating, when applied to Table VI. The Veteran's test results were found to be valid for ratings purposes. The Veteran continued to report worsening hearing loss thereafter. He underwent a VA audiological examination in August 2016, which showed the Veteran's speech discrimination scores at 6 percent in the right ear and 10 percent in the left ear. The examiner reported that the results were not valid for rating purposes because there were several false positives obtained during pure tone air conduction thresholds. In April 2018, the Veteran reported that his hearing had worsened since his last VA examination. The record shows that the Veteran has undergone separate audiological testing, which were indicative of sensorineural hearing loss; however, word discrimination scores were not provided and are not valid for rating purposes. The Veteran submitted to a VA audiological evaluation in May 2019 showing speech discrimination of 96 percent in the right ear and 88 percent in the left ear. The report did not indicate whether the Maryland CNC test was used, which prompted the December 2020 Board remand for an updated VA examination. However, while the May 2019 audiologist was not specifically asked about validity of the May 2019 audiological examination, the report referenced potential problems with the validity of the testing results. The examiner stated that "[t]here may be some non-organic deficit as [the Veteran] scored only 66% correct at 95 dB HTL, AD, then scored 88% correct at 100 dB HTL, AD." The Veteran underwent a VA audiological examination in March 2021, as directed by the prior Board remand. However, once again, the VA examiner determined the results of audiological testing to be invalid because they were "at extreme variance with [the Veteran's] presentation." The Veteran provided no response to bone conduction testing or speech reception threshold testing, despite repeated instruction, stating that he could not hear anything. The examiner stated that the Veteran was able to respond appropriately from behind and without visual cues, and that it is not possible that the Veteran would not feel vibrotactile bone conduction testing, even if it is not heard. The examiner stated that previous testing has cited poor interest reliability, and the examiner was in agreement that this issue was again present during the present examination. The examiner stated that a consistent reliable evaluation had not been obtained to date and that review of prior testing suggest hearing thresholds are actually significantly better than those obtained on examination. Thus, the examiner stated that he could not opine as to the Veteran's functioning without consistent testing and good reliability with behavioral responses. The Veteran's inconsistent presentation has been noted on interpretation of his audiological testing in 2016, 2019, and 2021, and has invalidated the results of multiple VA examinations, complicating the adjudication of his claim. These recurrent findings have undermined the Veteran's credibility. It is the Veteran's responsibility to cooperate in examinations for the development of his claims. The law has long held that the duty to assist a claimant in the development of an application for benefits is a two-way street. The Board finds the VA audiological examiners to be competent, and the duty to assist the Veteran has been met, as he has been afforded multiple VA audiological examinations. Two VA audiologists, five years apart, provided detailed findings as to why the Veteran's test results were invalidated by the Veteran's presentation, and a third audiologist also pointed to inorganic causes for the Veteran's test results. For these reasons, the Board finds that an additional remand for further audiological testing is not justified. However, the Veteran's February 2013 VA audiological examination occurred during the relevant period for the Veteran's increased rating claim, and continued to show that the Veteran has no worse than Level I hearing loss bilaterally, which supports a continuation of his noncompensable disability rating. There is no credible recent audiometric testing that is sufficient for rating purposes due to inconsistencies in the Veteran's presentation on examination, as documented by multiple medical professions, who observed and performed testing on the Veteran and the two audiologist who performed the 2016 and 2021 hearing tests provided detailed reasons for why the testing was not valid. Thus, the consistent findings by audiologists that the Veteran's hearing test rests are not valid are accorded high probative value. Without credible evidence showing a genuine worsening of the Veteran's bilateral hearing loss disability, an increased disability rating, supported by the required mechanical application of the Rating Schedule to numeric designations assigned based upon audiometric test results, cannot be awarded. The most recent audiological testing found to be valid for ratings purposes occurred in February 2013 and continued to show that the Veteran's hearing loss did not warrant a compensable rating. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to an increased compensable disability rating for the service-connected bilateral sensorineural hearing loss. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service-connected disabilities have not met the schedular criteria for TDIU for the entire appeal period. The Veteran was granted TDIU effective March 28, 2018; therefore, this decision is only considering entitlement to TDIU prior to that date. Prior to March 28, 2018, the Veteran was service-connected for major depressive disorder associated with bilateral hearing loss with a 30 percent disability rating from June 28, 2016; tinnitus with a 10 percent disability rating from April 2, 2012; and bilateral hearing loss with a 0 percent disability rating from April 2, 2012. Based upon the above, the Veteran's combined disability rating during the relevant period was 10 percent from April 2, 2012, and 40 percent from June 28, 2016. As such, the Veteran did not meet the schedular criteria for a TDIU rating prior to March 2018. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis 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). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration prior to March 28, 2018. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims in Ray v. Wilkie directed the Board to consider the following factors: (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 by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran reported that he receives Social Security Administration (SSA) disability benefits, and SSA records indicate that the Veteran was found that he is disabled due to his combined impairments effective in April 2010. It is noted that such a finding is not binding on any determinations made by the VA. VA and SSA use different definitions and standards for determining disability and SSA also considers limitations from all disabilities, versus considering disabilities that are related to service or a service-connected disability. In this instance, the Veteran testified that his SSA disability was based on nonservice-connected disabilities and not his hearing loss. Accordingly, VA is not bound by any findings relating to SSA disability. The above findings relating to the Veteran's increased rating claim for bilateral hearing loss is incorporated herein. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. The reasons follow. The Veteran was fitted for hearing aids in October 2012. The Veteran reported that he was hearing well. At his February 2013 VA audiological examination, the Veteran reported that his hearing loss impacted his ability to work in that he had to use hearing aids. The Veteran's tinnitus was noted not to impact the Veteran's ability to work. At the Veteran's July 2016 hearing, he reported that he had to leave two jobs due to his hearing loss. He stated that he went back to school, got a master's degree, and became a mental health counselor, but that he could not do his job sufficiently because of hearing loss and he "had to let that go." The Veteran reported that he was working part-time as a counselor and that his employer liked his work and asked him to apply for full-time work. However, the Veteran stated that "I knew my hearing loss made it difficult for me, so I didn't apply full-time because of my hearing loss" and he stopped working part-time as well. The Veteran stated that it was difficult for him to hear clients, particularly in a group setting, and that it was embarrassing for him to ask people to speak up. The Veteran also recounted having to leave part-time work answering calls on a suicide hotline in 2012, due to his hearing difficulties. During the Veteran's August 2016 VA audiological examination, the Veteran reported that he had discontinued working as a counselor due to an inability to hear and understand people. The Veteran's tinnitus was noted to impact the Veteran's functioning because it is bothersome in quiet settings. The Veteran stated that his tinnitus was frequent, but not constant. The Veteran underwent a VA examination for assessment of his psychiatric disorder in August 2016. The Veteran reported experiencing depressive episodes that have increased in intensity over the past three to five years as his hearing progressively deteriorated. He described feelings of worthlessness because he has had to leave his two jobs due to his hearing issue. He ruminated about his inability to provide for his family, and reported that he lost interest in previously enjoyed activities, wants only to stay in bed, isolates himself from his family and friends, and eats and sleeps more during these periods which tend to last two to three weeks at a time. On mental status examination, the Veteran was cooperative and friendly. It was noted that the Veteran's hearing loss was an issue at times, as he could only make out the examiner's words if he was able to see her lips moving. The Veteran's own speech was also impacted by hearing loss with affected rate, volume, and flow of speech. The Veteran's thought process was linear, logical, and goal-directed. His attention was normal, his memory was intact, and his judgment and insight were fair. The Veteran was noted to experience a depressed mood and disturbances of mood and motivation. The examiner described the Veteran's overall impairment as 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. This assessment is commensurate with a 10 percent disability rating. The Veteran underwent another VA psychological examination in June 2018. While this occurred after the effective date of the award of TDIU, it is addressed herein to the extent that it may reflect the Veteran's functioning during the relevant period. The Veteran's diagnosis was changed to persistent depressive disorder, a correction of a previous erroneous diagnosis. The examiner stated that the Veteran's depressive condition is milder than major depression, persistent, and unremitting. He was noted to be prescribed half a starting dose of Sertraline, consistent with a milder degree of depression. The Veteran's level of overall impairment was assessed as 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. This assessment is commensurate with a 30 percent disability rating. The examiner noted the Veteran's secondary education and stated that his education increases his potential work possibilities. The examiner wrote that the Veteran's hearing loss impacts the Veteran's work as a counselor, but that he did not appear willing to look at other types of jobs he could do with a hearing deficit. The Veteran reported that not working affects his self-esteem and contributes to depression. The Veteran's depression medication was described as minimal. While the adjudicator makes determinations regarding entitlement to TDIU, the assessments VA examiners support the within conclusion that the Veteran was not prevented from obtaining and carrying out substantially gainful employment prior to March 28, 2018. The Veteran reported that he stopped working part-time as a counselor in 2014 due to hearing difficulties. However, by his own admission, his employer was pleased with his work and wanted him to begin full-time employment in the same position. This is probative evidence that the Veteran's hearing loss was not a substantial detriment to the Veteran's job performance. Thereafter, a VA examiner stated that the Veteran did not appear willing to look at other types of jobs he could do with a hearing deficit even though his education expanded his potential work opportunities. Despite hearing difficulties, the Veteran routinely demonstrated the ability to interact effectively and appropriately during recurrent medical examinations, as well as at his July 2016 Board hearing. The Veteran did not require urgent or inpatient treatment for a service-connected disability or disabilities during the relevant period. He required minimal psychiatric treatment, maintained independence in activities of daily living, and was generally described as friendly and cooperative with intact cognitive functioning. Such findings are probative evidence against a finding that the Veteran was unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities prior to March 2018. Regarding the Veteran's education, training, skills, and work history, the Veteran reported that he earned an undergraduate degree in psychology from Temple University in 2010 and a master's degree in mental health counseling from Springfield College in 2011. The Veteran reported that he last worked as a mental health counselor from 2010 to 2014. He has also reported that he worked as a suicide hotline operator ending in 2012. Additionally, the record reflects that the Veteran has previous work experience as a mail carrier. The Veteran reported that he stopped working as a counselor in 2014 due to hearing loss. A 2018 VA examiner stated that the Veteran's education expanded his potential work opportunities. Overall, the Veteran's work history and education demonstrate a capacity for skilled work and an ability to learn, train, and adapt that would not be hindered by his service-connected disabilities. These attributes would have facilitated the Veteran's return to substantially gainful employment. As to the Veteran's physical ability to perform substantially gainful employment, the Board acknowledges that the Veteran has some hearing difficulties resulting from hearing loss and tinnitus. However, the record does not show that these disabilities caused significant functional deficits that would preclude the Veteran's ability to work. As mentioned, the Veteran reported that his employer was pleased with his performance and wanted him to work full time when he quit working in 2014. A VA examiner indicated that the record is indicative of the Veteran's hearing thresholds being significantly better than those obtained on recent examination. He has demonstrated the ability to communicate effectively in face-to-face interactions. As such, prior to March 2018, the Veteran's hearing limitations could be reasonably accommodated by restricting the Veteran to occupations that do not require routine interaction with the general public, and primarily allow for face-to-face communication without routine use of a telephone. As to the Veteran's mental ability to perform substantially gainful employment, the Board recognizes that the Veteran experienced some depressive symptoms associated with his hearing loss. However, the Veteran's treatment has been relatively limited, consisting of a low-dose anti-depressant. The Veteran's service-connected disabilities have not been shown to impact his cognitive functioning or his ability to socialize appropriately with others. During the relevant period the Veteran was described as friendly and cooperative and was generally found to be fully alert and oriented. His thought process was linear, logical, and goal directed; his attention was normal; his memory was intact; and his judgment and insight were fair. The Veteran maintained independence in activities of daily living and did not require urgent or inpatient treatment for any psychiatric symptoms. The record does not show significant vocational impairment caused by the Veteran's depressive disorder and the weight of the evidence shows that the Veteran is mentally capable of performing substantially gainful employment. Based on the above assessment of the Veteran's physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran's service-connected disabilities did not preclude him from work that would result in income at the level of substantially gainful employment prior to March 28, 2018. For example, the Veteran could perform his past work as a mental health counselor. The Veteran has experience in this field and quit under his own volition in 2014. Despite some hearing difficulties and embarrassment due to asking people to speak up, the Veteran reported that he performed his job adequately at the time and that his employer was pleased with his work and wanted him to start working full time. As such, the preponderance of the evidence is against a finding that the Veteran was precluded from his past employment due to his hearing loss. If the Veteran was unable to return to his past work, there are numerous other positions that would accommodate the Veteran's disabilities. For example, the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities precluded him from jobs that involve data entry. With data entry, the Veteran is primarily responsible for entering data into a system. These jobs can usually be performed without significant training or experience and require little social interaction. Based on the Veteran's education history, his recent college and graduate experience, and intact cognitive functioning, the Veteran has, or is capable of quickly gaining, the basic computer skills needed for such a position. Additionally, the Veteran's hearing disabilities would not preclude the Veteran from occupations such as a warehouse worker, assembly line worker, or custodian, positions that would involve repetitive tasks without significant social interaction, such as a packer and sorter at an Amazon warehouse. These are jobs that use everyday skills of lifting, cleaning, and organizing. These examples are not exhaustive but are merely illustrative of potential occupations that the Veteran could perform. This is evidence against a finding that the Veteran is unable to secure or follow all forms of substantially gainful employment due to his service-connected disabilities. For all the reasons described above, the Board finds that the preponderance of the evidence is against a finding that the Veteran is precluded from all forms of substantially gainful employment and, therefore, is not entitled to referral for consideration of an extraschedular TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to referral for consideration of a TDIU rating on an extraschedular basis is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.