Citation Nr: 1039587 Decision Date: 10/22/10 Archive Date: 10/27/10 DOCKET NO. 05-01 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable rating for allergic conjunctivitis with a history of angioedema prior to December 1, 2009. 2. Entitlement to an initial rating in excess of 10 percent for allergic conjunctivitis with a history of angioedema from December 1, 2009. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1983 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for allergic conjunctivitis with a history angioedema and assigned a 0 percent (noncompensable) evaluation, effective December 1, 2003. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in March 2006. A copy of the hearing transcript is associated with the claims file. The Board then remanded this matter for additional development in October 2007. After that development was completed, the Appeals Management Center (AMC) in Washington, D.C. promulgated a rating decision in December 2009 which granted a 10 percent disability rating for the claimed condition, effective December 1, 2009. The case now returns to the Board for appellate review. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. From December 1, 2003 to March 8, 2006, the Veteran's allergic conjunctivitis with angioedema was manifested by minimal allergic conjunctivitis and swelling of the eyelids. 2. From March 9, 2006, the Veteran's allergic conjunctivitis with angioedema was manifested by attacks which involved swelling of the throat and difficulty breathing that occurred more often that twice per year; debilitating episodes occurring at least 4 times in a 12 month period have not been shown. CONCLUSIONS OF LAW 1. From December 1, 2003 to March 8, 2006, the criteria for an initial rating in excess of 10 percent for allergic conjunctivitis with a history of angioedema have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7118 (2010). 2. From March 9, 2006, the criteria for an initial 40 percent rating for allergic conjunctivitis with a history of angioedema have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7118 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2009). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the Veteran's claims, a letter dated in June 2003 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, as noted in the Board's October 2007 remand, this notice was deficient. Corrective notice was sent to the Veteran in December 2007. Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. In the Veteran's July 2004 notice of disagreement (NOD), he took issue with the initial disability rating assigned and is presumed to be seeking the maximum benefits available under the law for each appealed issue. Dingess; see also AB v. Brown. Therefore, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO properly issued a November 2004 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). Therefore, VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. As noted above, the Veteran was also provided with additional notice in December 2007. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim. Thus, even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran's service treatment records, private treatment records, VA treatment records, VA authorized examination reports, lay statements, and hearing transcript have been associated with the claims file. Pursuant to the Board's October 2007 remand, VA made efforts to obtain additional private treatment records identified by the Veteran. Those efforts have been documented in the claims file. The Veteran was notified that VA was unsuccessful in obtaining those records and that it was his responsibility to provide those records. To date, however, these records have not been associated with the claims file. Nonetheless, the Board will proceed. The Board notes that the Veteran was afforded VA examinations with respect to his disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's allergic conjunctivitis with angioedema. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Evidence The Veteran was afforded a general VA examination in July 2003. He reported a history of being diagnosed with angioedema with type 1 hypersensitivity. He experienced swelling of the eyelids, and was treated with Atarax, Singulair, Claritin D, and Epinephrine injections. He would get Epinephrine injections 2 to 3 times per week. The Veteran also underwent a VA eye examination in July 2003. Uncorrected vision was 20/20 in the right eye and 20/25 in the left eye. Slit lamp biomicroscopy on lid eversion revealed a mild papillary response. The anterior chambers were quiet, without cell or flare. The corneas were clear, and lids and lashes were normal. The Veteran was diagnosed with minimal allergic conjunctivitis. The Veteran testified at a Travel Board hearing in March 2006. He stated that when he experienced an allergic reaction, he would have tearing and swelling of the eyes. The angioedema, rather than the conjunctivitis, was the predominant disability affecting him. When he experienced an attack, he had difficulty swallowing and breathing due to throat swelling, and had hypersalivation. He experienced conjunctivitis only in about 50 percent of his attacks. Some attacks were more severe than others, and attacks generally occurred about two to three times per month. He treated these attacks with Epinephrine injections, and he kept Epi-pens in close proximity at all times. He also used Atarax, Claritin, and Zyrtec. The Veteran indicated that he had difficulty obtaining employment after disclosing his condition to potential employers. He was also unable to travel or leave the house as much as he would like, due to his fear of experiencing an attack away from home. A March 2008 statement from one of the Veteran's acquaintances confirmed that the Veteran periodically injects himself with Epinephrine due to difficulties with swallowing and breathing. The Veteran submitted his own statement in May 2008. He reiterated that his angioedema attacks cause his throat to swell shut. He occasionally woke up in the middle of the night with hypersalivation while experiencing an attack. Attacks occurred anywhere from "occasionally" to 3 to 4 times per week. The condition also affected his ability to get a job. The Veteran was afforded an additional VA examination in December 2009. The Veteran reported episodes of angioedema which he treated about 4 to 6 times per month, though they have occurred more than once daily in the past. Attacks consisted of swelling of the throat and tongue, shortness of breath, and hypersalivation. These usually resolve within 10 minutes of the administration of Epinephrine. There was a post-attack malaise that lasted for a day or so. Allergies were year-round with some seasonal exacerbations. Conjunctivitis also worsened with seasonal flares. Current treatment included Claritin, Albuterol, and Epinephrine. On examination, there was no evidence of sinus disease or nasal obstruction. The larynx was normal. There were marked allergic shiners and sclera injections, bilaterally. There was also moderate nasopharyngeal cobblestoning, consistent with chronic allergic rhinitis. The Veteran was diagnosed with a chronic allergic profile, including bilateral allergic conjunctivitis, rhinitis, and mild asthma. The profile was moderately controlled on the Veteran's current regimen on antihistamines and Albuterol. He was also diagnosed with angioneurotic syndrome with post-attack malaise in a moderately active state. Acute episodes were controlled with the administration of Epinephrine. The Veteran's condition resulted in poor social interactions, decreased mobility, speech difficulty, vision difficulty, lack of stamina, weakness, and pain. The examiner noted that the effect on the Veteran's ability to play sports was severe. Effects on activities such as chores, shopping, exercise, recreation, traveling, feeding, bathing, dressing, toileting, and grooming were moderate. She also noted that some of the Veteran's episodes were debilitating and required bed rest. The last such debilitating episode was July 2009, when the Veteran's Epi-pen was not readily available during his attack. C. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's allergic conjunctivitis with history of angioedema is currently rated under Diagnostic Code 6018. He was assigned a noncompensable rating from December 1, 2003, and a 10 percent rating from December 1, 2009. Under Diagnostic Code 6018, a 10 percent rating is assigned for active conjunctivitis; otherwise, healed conjunctivitis is rated based on the healed residuals. 38 C.F.R. § 4.79, Diagnostic Code 6018. However, the assignment of a particular Diagnostic Code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which Diagnostic Code or Codes are most appropriate for application of an appellant's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board has also considered Diagnostic Code 7118, which provides that a 10 percent rating is warranted for angioneurotic edema if there are attacks without laryngeal involvement lasting one to seven days and occurring two to four times a year. A 20 percent rating is warranted if there are attacks without laryngeal involvement lasting one to seven days and occurring five to eight times a year, or; attacks with laryngeal involvement of any duration occurring once or twice a year. A 40 percent rating is warranted where there are attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times a year, or; attacks with laryngeal involvement of any duration occurring more than twice a year. 38 C.F.R. § 4.104, Diagnostic Code 7118 (2010). Finally, the Board has considered Diagnostic Code 7825, which provides that a 10 percent rating is warranted for urticaria for recurrent episodes occurring at least four times during the past 12-month period, and responding to treatment with antihistamines or sympathomimetics. A 30 percent rating is warranted for recurrent debilitating episodes occurring at least four times during the past 12-month period, and requiring intermittent systemic immunosuppressive therapy for control. A maximum 60 percent rating is warranted for recurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy for control. 38 C.F.R. § 4.118, Diagnostic Code 7825. D. Analysis 1. Rating Prior to December 1, 2009 Based on the evidence of record, the Board finds that a staged rating is warranted during this period. Prior to March 9, 2006, a rating of 10 percent is warranted. VA examinations conducted in July 2003 indicate that the Veteran had minimal allergic conjunctivitis and experienced swelling of the eyelids. A higher rating is not warranted under Diagnostic Code 7118 as there is no indication that attacks, with or without laryngeal involvement, occurred at least 5 times per year. Similarly, a higher rating under Diagnostic Code 7825 is not warranted, as there is no indication of recurrent debilitating episodes of angioedema. However, as of March 9, 2006, the date of the Veteran's Travel Board hearing, a 40 percent rating under Diagnostic Code 7118 is warranted. As discussed above, a 40 percent rating is warranted where there are attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times a year, or; attacks with laryngeal involvement of any duration occurring more than twice a year. During the aforementioned hearing, the Veteran testified that when he experienced an attack, he had difficulty swallowing and breathing due to throat swelling, and had hypersalivation. Though some attacks were more severe than others, attacks generally occurred about two to three times per month and had to be treated with epinephrine. The Board finds the Veteran's account of his symptomatology to be credible and generally supported by the other evidence of record. These symptoms are consistent with the criteria for a 40 percent rating, which is the maximum rating available under Diagnostic Code 7118. The March 2008 statement of the Veteran's acquaintance and May 2008 statement from the Veteran also describe a disability picture that is generally consistent with the 40 percent rating. A higher 60 percent rating under Diagnostic Code 7825 is not warranted. Although the record demonstrates that the Veteran has received ongoing treatment with immunosuppressants, the evidence does not establish that the Veteran experienced recurrent debilitating episodes, such as episodes requiring bed rest, at least four times during a 12-month period. 2. Rating From December 1, 2009 A 40 percent rating under Diagnostic Code 7118 is also warranted from December 1, 2009. During the Veteran's VA examination on that date, he reported that angioedema attacks occurred 4 to 6 times per month. These attacks involved swelling of the throat and tongue and required treatment with epinephrine. He also experienced a post-attack malaise which lasted about a day. These symptoms are consistent with the criteria found in the 40 percent rating under Diagnostic Code 7118. A higher 60 percent rating under Diagnostic Code 7825 is not warranted. Although the examiner indicated that the Veteran had some episodes which were debilitating and required bed rest, the last such episode was in July 2009. Moreover, the examination report noted that this episode was the result of the Veteran's epinephrine not being readily available at the time, and also noted that the Veteran's attacks are generally resolved within 10 minutes of the administration of epinephrine. The evidence does not demonstrate that 4 debilitating episodes occurred within the preceding 12 month period. 3. Extraschedular Rating In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the allergic conjunctivitis with angioedema with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Indeed, it does not appear from the record that he has been hospitalized at all for that disability. Although the Veteran offered statements regarding the impact of his condition on his ability to work, there is no persuasive evidence in the record to indicate that this service- connected disability on appeal alone would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disabilities have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER From December 1, 2003 to March 8, 2006, a rating of 10 percent for allergic conjunctivitis with a history of angioedema is granted, subject to the laws and regulations governing the award of monetary benefits. From March 9, 2006, a 40 percent rating for allergic conjunctivitis with a history of angioedema is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND During the Veteran's March 2006 hearing, and again in his May 2008 written statement, the Veteran asserted that he is unable to work due to his allergic conjunctivitis with angioedema. The Board notes that although the issue of TDIU has not been certified on appeal, the Board does have jurisdiction to decide the claim. In this regard, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for total disability rating, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. Accordingly, the Board concludes that it does have jurisdiction over the issue of the Veteran's entitlement to TDIU, and that issue has been added, as listed above. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised); see also VAOPGCPREC 12-2001 (July 6, 2001) (further expansion on the concept of when an informal claim for TDIU has been submitted). As such, the issue is properly before the Board and should be adjudicated by the RO on remand. In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995). The Court stressed that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a). An examination is warranted in this regard. The Veteran should be scheduled for a VA examination, and the examiner should be asked to conduct a physical examination of the Veteran, review of the medical evidence, and provide a medical opinion addressing the question of whether the Veteran's service- connected disabilities combine to make him unemployable. See 38 U.S.C.A. § 5103A(d) (West 2002); Friscia v. Brown, 7 Vet. App. 294 (1995). Such opinion must be based upon consideration of the Veteran's current medical condition as well as his documented history and assertions, to include employment history and education, and medical evidence associated with the record. 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU. 2. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran furnish any additional information and/or evidence pertinent to the claim for a TDIU. The RO/AMC's letter should specifically explain how to establish entitlement to a TDIU. 3. The Veteran should be afforded an examination to ascertain the impact of all of his service-connected disabilities (allergic conjunctivitis with angioedema, hiatal hernia, tinnitus, asthma, recurrent athlete's feet, left hand dupuytren's contracture with neuroma, left ear hearing loss, and left hand scar) on his unemployability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on the Veteran's employability. The examiner should opine as to whether it is as likely as not (50 percent or more probability) that the Veteran's service-connected disabilities, without consideration of his nonservice- connected disabilities or age, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed should be provided. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 4. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2010). 5. After the requested development has been completed, the AMC/RO should adjudicate the merits of the appellant's claim for a TDIU based on all the evidence of record, including any additional information obtained as a result of this remand. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs