Citation Nr: 23011237 Decision Date: 02/23/23 Archive Date: 02/23/23 DOCKET NO. 19-16 663 DATE: February 23, 2023 ORDER An effective date prior to February 17, 2017, for a 50 percent rating for adjustment disorder with anxiety and depression ("adjustment disorder") is denied. A rating in excess of 50 percent for adjustment disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for adjustment disorder was granted in a September 2010 rating decision, with a 30 percent rating assigned effective September 29, 2009. The Veteran did not appeal the initial rating. 2. In a June 2015 rating decision, the 30 percent rating for adjustment disorder was continued. The Veteran did not appeal the rating. 3. The Veteran filed an Application for Disability Compensation and Related Compensation Benefits on February 17, 2017, requesting an increased rating for adjustment disorder. 4. There is no evidence in the claims file dated between June 2015 and February 2017 that the Veteran filed a claim for an increased rating for adjustment disorder, and it is not factually ascertainable that a 50 percent rating was warranted before February 17, 2017. 5. The severity, frequency, and duration of the Veteran's adjustment disorder symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas at any point during the period of appeal. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 17, 2017, for the grant of a 50 percent rating for adjustment disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400. 2. The criteria for a rating in excess of 50 percent for adjustment disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1979 to August 1980, and from May 2004 to May 2005. 1. Earlier effective date for the award of a 50 percent rating for adjustment disorder. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1) and (2). Thus, according to Harper v. Brown, 10 Vet. App. 125, 126 (1997), three possible effective dates may be assigned depending on the facts of the particular case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (i.e., the date the increase is factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Here, service connection was granted for adjustment disorder in September 2010, with a 30 percent rating assigned effective September 29, 2009. The Veteran did not appeal the issue. As such, the September 2010 rating decision is final. In February 2015, the Veteran requested an increased rating. In a June 2015 rating decision, the 30 percent rating was continued. The rating decision noted that the Veteran had been a "no show" for a VA mental disorders examination scheduled earlier that month. The Veteran did not appeal the issue. As such, the June 2015 rating decision is final. On February 17, 2017, the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) requesting an increased rating for adjustment disorder. In a May 2017 rating decision, the rating for adjustment disorder was increased to 50 percent effective February 17, 2017. The Veteran perfected an appeal to entitlement to an earlier effective date for the 50 percent rating. The Veteran contends that an earlier effective date for the grant of the 50 percent rating is warranted. He did not make any more specific allegations in his notice of disagreement (NOD) or substantive appeal (VA Form 9); however, he noted in a statement submitted in October 2022 that he moved from New York to Florida in 2015 and did not remember getting any correspondence from VA about an examination or missing an examination. The Board finds that an effective date prior to February 17, 2017, for the award of a 50 percent rating for adjustment disorder is not warranted. First, the Board acknowledges the Veteran's contention about moving to Florida in 2015; however, the June 2015 rating decision was sent to the Veteran's address in Florida on June 18, 2015, and there is no indication that it was not received. The presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 71 L. Ed. 131 (1926)). Here, the presumption of regularity means that, if notice is sent to the Veteran's last known address of record, it will be presumed that VA properly discharged its official duties. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). Indeed, the Veteran himself has not alleged that he did not receive the rating decision. As such, the Veteran had until June 17, 2016, to initiate an appeal of the June 2015 rating decision. There is no evidence of any NOD during this one-year period. Thus, the June 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Next, there is no evidence of request for an increased rating submitted after the June 2015 rating decision and prior to the February 2017 application for increased rating. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). In this regard, the Board notes that the only correspondence received from the Veteran during this period was related to vocational rehabilitation. Finally, the Board finds that it is not factually ascertainable that a 50 percent rating for adjustment disorder was warranted before February 17, 2017. See 38 C.F.R. § 3.400(o). Under Diagnostic Code 9440, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130. Here, VA treatment records dated prior to February 17, 2017, indicate that the Veteran's symptoms consistently included impaired sleep, crying spells, low energy and drive, and difficulty finding and keeping work, which was at least partially due to pain in his shoulder, back, and knee. He was also consistently noted to have recurrent major depressive disorder or unspecified depressive disorder, moderate without psychosis; and a history of chronic adjustment disorder and/or chronic adjustment disorder, stable. In an April 2017 VA mental disorders examination, the Veteran reported that he continued to have times of depressed and anxious feelings, difficulty sleeping, low motivation, times of feeling worthless, inability to concentrate or focus, and misplaced things. The examiner concluded that the Veteran's mental health symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication (which warrants a 10 percent rating under Diagnostic Code 9440). In sum, the Veteran did not appeal prior rating decisions that assigned 30 percent ratings in September 2010 and June 2015. As such, these rating decisions are not appropriate dates from which to assign an increased rating for adjustment disorder, absent a finding that clear and unmistakable error (CUE) has occurred. Accordingly, entitlement to an effective date earlier than February 17, 2017, for the increased 50 rating for adjustment disorder is not warranted. In reaching this conclusion, the benefit of the doubt has been considered; however, the evidence supports a finding that an earlier effective date for the 50 percent rating for adjustment disorder is not warranted. A such, there is no benefit of the doubt to resolve in the Veteran's favor. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 2. Increased rating for adjustment disorder. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The rating criteria for rating mental disorders, including anxiety disorder and PTSD, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. The Board notes that the DSM-5 states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court's holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores; however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board will not afford any GAF scores mentioned in the record any probative value in cases where the DSM-5 applies. See also Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. February 23, 2018) (finding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim). In this case, the Veteran's appeal was certified to the Board in August 2019. As such, the DSM-5 applies, and the Board will not afford GAF scores any probative value. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. The Board finds that for the entire period of appeal, the Veteran's adjustment disorder does not more closely approximate the schedular criteria for a rating in excess of 50 percent under Diagnostic Code 9440 at any point during the period of appeal (from February 17, 2017). VA treatment records indicate that in February 2017, the Veteran requested that he be seen to get a letter indicating that he had "mental health clearance" to be an armed security guard. He was advised that those types of "fitness for duty" clearances were not done. The Veteran was noted by the treating psychiatrist to be alert, oriented, well groomed, attentive, and pleasant. He was understandably frustrated by the circumstances, had normal speech, and goal-directed thought processes. His chronic adjustment disorder was noted to be stable. The Veteran declined need or interest in medication management, and requested follow-up supportive therapy counseling in 1-2 months. In April 2017, the Veteran was afforded a VA mental disorders examination. He reported that he continued to experience times of depressed and anxious feelings, difficulty initiating sleep because he felt panicky and fearful that he would have a heart attack when asleep, and was in pain all the time. He also had low motivation, times of feeling worthless because he could not find gainful employment and let his family down, could not concentrate or focus, and misplaced things. The Veteran continued to be married to his third wife and had three daughters. He kept up with the veterans he served with and had met some neighbors since moving to Florida in 2015, but did not socialize with anyone. He was currently driving part time for Uber, but was "mostly in the bed" because of his pain. On examination, the Veteran was noted to be alert and oriented, adequately groomed and dressed, and emotionally upset talking about his disappointment in getting injured in military training prior to deployment. His affect and mood were anxious, speech was normal, thought processes were circumstantial, and there were no suicidal or homicidal symptoms. The examining psychiatrist indicated that the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, circumstantial or circumlocutory speech, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances including work or a worklike setting. He was capable of managing his financial affairs. The examiner concluded that the Veteran's mental health symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. In May 2019, the Veteran reported having passive suicidal ideation due to physical pain, including chronic back and arthritis pain, which he felt had not been effectively treated by VA doctors. He also had difficulty sleeping due to pain, and he used to be prescribed a medication, but he did not know what it was called. The Veteran denied having a current plan or intent to harm himself or others, and denied a history of suicide attempts. He was future-oriented and expressed a sense of responsibility and attachment. The treating social worker assessed the Veteran's acute risk of suicide to be low, and he was encouraged to make a follow-up mental health appointment. In July 2019, the Veteran had another VA mental disorders examination. He reported having difficulty falling and staying asleep, procrastination, isolation, crying spells, racing thoughts, irritability, and being verbally aggressive. He had been married for 22 years and lived with his wife and daughter. The Veteran stated that he had no friends that he socialized with, and his family suffered because he did not go anywhere. He last worked as a cashier/stocker for two months before quitting in November 2017. Previous jobs included being a truck driver for 1.5 years and being employed in the national guards. The Veteran attended Keiser University for 14 months, but was unable to complete a degree due to trouble with VA paperwork. On examination, the Veteran was oriented, he was adequately dressed and groomed, and his demeanor was cooperative. The Veteran's manner of relating, social skills, and overall presentation were fair; his expressive and receptive languages were adequate; thought processes were goal-directed without evidence of delusions, hallucinations, or disordered thinking; mood was euthymic and affect congruent; and attention and concentration appeared age appropriate. The examining psychologist indicated that the Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. He was capable of managing his financial affairs. The examiner concluded that the Veteran's mental health symptoms resulted in occupational and social impairment with reduced reliability and productivity. In a March 2020 VA telephone appointment for an annual exam and lab review, the Veteran denied having any unmet mental health needs at the time, and denied having anxiety, depression, sleep disturbances, suicidal or homicidal ideation. He did have some other stressors related to chronic pain. In April 2020, the Veteran reported having sleep disturbance with difficulty falling and staying asleep, increased appetite, and feelings of worthlessness. He had fleeting, passive thoughts of death that occurred "rarely," and he adamantly denied any intention or plan to act on thoughts. He also had depressed mood nearly every day, lack of interest in previously enjoyed activities, fatigue, loss of energy, and difficulty concentrating. In March 2021, the Veteran requested an appointment with VA mental health. He was noted to have a previous mental health consult request in April 2020, which was discontinued due to failed scheduling efforts. The Veteran reported symptoms of sleep deprivation, mental confusion, feeling on edge and anxious most of the time. He denied having suicidal or homicidal intentions or plans. He was given sleep hygiene recommendations and was referred to the mental health department. The following week, the Veteran had a consult for symptoms of insomnia, depression, and anxiety. He also reported that he was frustrated with the VA. The Veteran endorsed having severe depression and severe anxiety. He also stated that he had fleeting passive suicidal ideation, without thoughts of a method/plan/intent. The treating psychiatrist assessed the Veteran as having adjustment disorder with anxious distress, rule-out PTSD, and rule-out bipolar II disorder. The Veteran was started on venlafaxine (for adjustment disorder) and advised to continue taking melatonin (for insomnia). He was also referred to psychotherapy, although he did not respond to four phone calls and at least one letter to schedule an appointment. In April 2022, the Veteran requested a refill of his medications, including venlafaxine, which was noted to have last been requested for refill in March 2021. He was advised that he would need a mental health provider to do a refill. In May 2022, the Veteran was seen by VA psychiatry, reporting that he was feeling overall significantly improved regarding target symptoms of mood, irritability, and anxiety. He rated his global intensity of symptoms to be "mild with infrequent exacerbation to moderate (2-3 times per month)." Venlafaxine was able to suppress his irritability, which he said was "a miracle." The Veteran stated that he had no particular mental health symptoms that he wanted to address, and denied having suicidal or homicidal ideation, excess mood lability, problematic anger outbursts, mania/hypomania, psychosis, or a thought disorder. The treating psychiatrist raised the Veteran's venlafaxine dosage and advised him to continue taking melatonin. He was also advised to return in 180 days for a follow-up appointment. The weight of the evidence shows that the Veteran's symptoms have been relatively consistent for the entire period of appeal, including depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. The Board find that such symptoms more nearly approximate that of occupational and social impairment with reduced reliability and productivity, which warrants a 50 percent rating under Diagnostic Code 9440. As such, the Board also finds that the Veteran's symptoms have not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a higher 70 percent evaluation at any point during the period of appeal. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (stating that use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating). As noted above, the criteria for a 70 percent rating includes symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. In this case, the Veteran has not been found to have symptoms of obsessional rituals which interfere with routine activities; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. The Board acknowledges that the Veteran reported having passive suicidal ideation on three occasions during the period of appeal. However, he consistently and "adamantly" denied having intent or a plan to harm himself or others, and had no history of attempts. The Veteran was also noted to be future-oriented, had a sense of responsibility and attachment, and was assessed as being low risk. The Board does not consider these notes of "fleeting, passive thoughts" of suicide to be so frequent and disabling as to result in occupational and social impairment with deficiencies in most areas. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that symptoms contained in rating schedule criteria are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."). The Board also acknowledges that the Veteran was noted to have circumstantial or circumlocutory speech in the April 2017 VA examination, and that he was found to have difficulty in adapting to stressful circumstances including work or a worklike setting in the April 2017 and June 2019 VA examinations. However, the Board also does not find these two symptoms to be so frequent and disabling as to result in occupational and social impairment with deficiencies in most areas at any point during the period of appeal. See Mauerhan v. Principi, at 442 (2002). Rather, the Veteran has remained married for the entire period of appeal, has adult children with whom he has relationships, and has worked intermittently during the period of appeal, including driving part time for uber and working as a cashier/stocker. The Veteran indicated that much of his reason for not working was due to chronic physical pain, and not mental health symptoms. The Veteran was also noted in both VA examinations to be capable of completing his activities of daily living and managing his financial affairs, and he reported that Venlafaxine was "a miracle" and reduced his symptoms to "mild with infrequent exacerbation to moderate." The Board finds it significant that both VA examiners concluded that the Veteran's adjustment disorder symptoms resulted in, at worst, occupational and social impairment with reduced reliability and productivity, which warrants a 50 percent rating. Accordingly, the Board finds that the Veteran's symptoms are not of such frequency, severity, and duration that they result in occupational and social impairment with deficiencies in most areas to warrant a higher 70 percent evaluation at any point during the period of appeal. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. A TDIU award of benefits may be granted where the schedular rating is less than total, but 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). Here, the Veteran's service-connected disabilities consist of adjustment disorder (50 percent disabling), right shoulder rotator cuff tear (10 percent), right knee condition with popliteal cyst (10 percent), stomach condition (10 percent), and left ear hearing loss (noncompensable). His combined evaluation has been 60 percent from February 17, 2017. As such, the Veteran does not meet the schedular requirements for a TDIU on a schedular basis. A TDIU may be granted alternatively on an extra-schedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. However, the Board is precluded from granting a TDIU on an extra-schedular basis in the first instance and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. Thus, the issue of entitlement to a TDIU is being referred to the Director of the Compensation Service for initial adjudication. The matter is REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of assignment of an extraschedular rating for TDIU, pursuant to 38 C.F.R. § 4.16(b). Prior to submission of the claim to the Director of Compensation Service, prepare 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 of entitlement to TDIU. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.