Citation Nr: 1615660 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 10-13 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent hepatitis C from October 11, 2001, and in excess of 20 percent from June 24, 2015. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of September 2007 that granted service connection for hepatitis C, and assigned a 10 percent rating, effective October 11, 2001. In December 2014, the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. During the course of this development, the AOJ assigned a 20 percent rating for hepatitis C, effective June 24, 2015. The two-tier issue remains on appeal, as a grant of less than the maximum available rating does not terminate the appeal, unless the veteran expressly states he is satisfied with the assigned rating. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). FINDINGS OF FACT 1. For the period from December 17, 2001, through February 28, 2002, hepatitis C was manifested by near-constant debilitating symptoms. 2. From March 1, 2002, through December 31, 2002, hepatitis C was manifested by daily fatigue, malaise, and anorexia with minor weight loss and anemia. 3. From October 11, 2001, through December 16, 2001, and from January 1, 2003, through March 5, 2015, hepatitis C was manifested by fatigue and occasional malaise and anorexia, without weight loss or continuous medication or incapacitating episodes. 4. Symptomatology warranting an evaluation of 20 percent, but no higher, reported on the examination report dated June 24, 2015, were present at the beginning March 6, 2015. CONCLUSIONS OF LAW 1. For the period from December 17, 2001, through February 28, 2002, the criteria for a 100 percent evaluation for hepatitis C are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2015). 2. For the period from March 1, 2002, through December 31, 2002, the criteria for a 40 percent evaluation for hepatitis C are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2015). 3. For the period from October 11, 2001, through December 16, 2001, and from January 1, 2003, through March 6, 2015, the criteria for a rating in excess of 10 percent for hepatitis C are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.114, Diagnostic Code 7354 (2015). 4. For the period beginning March 6, 2015, the criteria for a 20 percent rating, but no higher, for hepatitis C are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7354 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claims, and of his and VA's respective obligations in obtaining various types of evidence. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Here, however, the appeal arises from disagreement with the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Sutton v. Nicholson, 20 Vet. App. 419 (2006). VA also has a duty to assist the Veteran by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). Service treatment records have been obtained, as have all identified VA and private treatment records. The appellant has not identified any other potentially relevant records. VA medical examinations and opinions were obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The examinations described the disabilities in sufficient detail for the Board to make an informed decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no evidence, including statements from the Veteran, indicating that there has been a material change in the disability since the last examination. 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). The Board notes that the report of a March 2015 VA examination is no longer of record. In a Disability Benefits Questionnaire (DBQ) dated in June 2015, it is noted the examination involved a review of available records in conjunction with a telephone interview with the Veteran (without in-person or telehealth examination) using the ACE process. The examiner noted that the existing medical evidence supplemented with a telephone interview provided sufficient information on which to prepare the DBQ. She added that such an examination would likely provide no additional relevant evidence. Neither the Veteran nor his representative has provided any evidence or argument to refute this finding. As such, the June 2015 examination with the associated laboratory reports from March 2105 are deemed adequate to decide the appeal. Pursuant to the Board remand, additional treatment records were obtained, as well as a current VA examination. Therefore, the remand development was satisfactorily accomplished. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (veteran is entitled to substantial compliance with the Board's remand directives). As there is no indication that any additional notice or assistance could aid in substantiating the claims decided herein, VA has satisfied its duties under the VCAA and the Board may proceed with consideration of the Veteran's appeal. 38 U.S.C.A. § 5103A(a)(2) (West 2014); see Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2 (2015); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The rating schedule provides for hepatitis C, confirmed by serologic testing, to be rated under diagnostic code 7354, based on symptoms due to hepatitis C infection. Nonsymptomatic hepatitis C is assigned a noncompensable evaluation. Hepatitis C manifested by intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period, a 10 percent rating is warranted. A 20 percent evaluation contemplates daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. 38 C.F.R. § 4.114, Codes 7345, 7354. A 40 percent evaluation is assigned in cases of daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 60 percent evaluation is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. A 100 percent evaluation is assigned in cases of near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). Id. Under Diagnostic Code 7354, an "incapacitating episode" means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id, Note (2). A review of the private medical records on file shows that serologic evidence of hepatitis C infection was shown beginning in May/June 2001. On December 13, 2001, the Veteran was started on a combination treatment for hepatitis C, consisting of PEG Intron therapy and Ribavirin. On December 17, 2001, he reported having flu-like symptoms, insomnia, mild diarrhea, and mild fatigue. On January 8, 2002, he complained of chills and diarrhea when receiving his hepatitis C treatment, and it was noted that he had already been off work for 2 weeks. In May 2002, it was noted that he was currently experiencing chills, dizziness, fatigue, and insomnia, noted to be side effects of the hepatitis C treatment. In June 2002, he was noted to still be on the combination treatment, and that he had developed anemia. He still complained of some fatigue and flu-like symptoms after injections. His insomnia was not too bad, but he reported irritability. The dosage of his medication regimen was adjusted. He remained on the treatment regimen until November 2002, for a total of 48 weeks. After the end of his treatment, in December 2002, his treating physician wrote that after the Veteran was diagnosed as having chronic hepatitis C viral infection, he declined a liver biopsy and was treated with combination therapy for approximately 11 months duration. His HCV-RNA quantitative count on November 12, 2002, was not detectable. He stated that he was now beginning to feel better. His appetite had improved, he was gaining weight, and his strength and energy were beginning to return. The impression was chronic hepatitis C with HCV-RNA quantitative count undetectable after 11 months of therapy. On a private medical doctor's evaluation concerning a prostate condition, in July 2004, and in August 2004, the Veteran denied muscle weakness and fatigue. He reported a normal appetite, and no weight loss. Private medical records show that in March 2005, the Veteran reported fatigue, and that laboratory studies showed an increase in liver enzymes. In July 2005, he complained of heartburn. A slight increase in liver function tests, as well as a history of hepatitis C, were noted. On a VA examination in February 2006, the Veteran was noted to be currently employed full-time. It was noted that in 2001, he had been found on routine screening to have abnormal liver function tests, and subsequently was found to have hepatitis C with increased viral load. He completed treatment with PEG interferon and ribavirin in 2002 without any further treatment for hepatitis C since then. He had developed transient treatment-induced anemia which had been corrected with Procrit, with no further evidence of anemia. The examiner noted that the Veteran apparently had good response to the treatment for hepatitis C, which appeared to be in clinical remission at present. He experienced residual mild easy fatigability, but denied any incapacitating episodes. He also denied malaise, polyarthralgia, anorexia, weight loss, weight gain, nausea, vomiting, abdominal pain, and "etc." On physical examination, he had no pallor or jaundice. The abdomen was unremarkable, and there were no signs of liver disease, malnutrition, or muscle wasting. There were elevated liver function tests in February 2006, but abdominal ultrasound was normal except for benign simple renal cysts. Another VA examination was performed in May 2010. It was noted that after he began treatment in 2002, he had various side effects from his treatment which consisted of feeling cold, malaise, lassitude, abdominal cramps, abdominal pain, and, he had been unable to work initially. He persisted in the year of treatment despite the side effects. For the past 8 years he had experienced intermittent abdominal cramping and pain, with nausea and sometimes vomiting. These cramps occurred about twice a month with a duration of about 1-2 days. The symptoms had been about the same for the past 8 years. He also had fatigue and lassitude which had been present for the past 8 years. He never had any energy. There had been no incapacitating episodes prior 12 months. There was no evidence of malnutrition, and abdominal examination was normal. There was no evidence of portal hypertension or other signs of liver disease. He reported current symptoms of intermittent fatigue, malaise, nausea, vomiting, anorexia, and right upper quadrant pain. He had not had any weight loss. He was employed full time, and had lost 2 weeks in the previous 12 months due to abdominal cramps, nausea and frequent respiratory conditions. VA treatment records show that in November 2010, a history and physical examination of the Veteran was obtained. With respect to hepatitis C, he reported a history of hepatitis C, treated in 2002 with injections for a year, with normal liver tests since then. He had worked for the City for the past 38 years, and currently was a foreman. He also did extra work cutting grass in the evenings. He reported being tired all the time, without the energy he thought he should have. He said he had been told he had reflux and ulcers, but had no recent problems with them, although he said he felt bloated and tired after eating. Physical examination was normal. In June 2015, an examination report was prepared based on a telephone interview, and review of the claims file and medical records. The examination was conducted in this manner, because although the Veteran reported for a VA examination on March 6, 2015, the documentation related to that examination had been lost, except for diagnostic studies, to include lab work and ultrasound of the liver. The Veteran agreed to a telephone interview. It was noted that the Veteran had had recurring elevated hepatitis C viral loads since at least 2010. He reported feeling tired much of the time, which he attributed to his hepatitis. He stated that he retired "a little early" at 62 years old, due to this tiredness. He denied denies nausea, vomiting, loss of appetite, loss of weight, or having unusual swelling of extremities or abdomen. Continuous medication was not required for control. He reported symptoms of daily fatigue. There had been no incapacitating episodes during past 12 months. Ultrasound in January 2012 showed a normal liver. Laboratory tests in March 2015 showed positive hepatitis C titers of 15, 900,000. Liver function tests were normal. The Veteran reported the impact of his hepatitis C condition as tiredness. In evaluating the evidence pertaining to this lengthy appeal period, the Board observes that if the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Before the Veteran began receiving treatment of hepatitis C in December 2001, he has not been shown to have been suffering significant symptoms, and a rating in excess of 10 percent is not warranted. However, the Veteran reports that when he was undergoing the treatment regimen in 2002, his symptoms were of such severity as to cause him to miss 2 months of work. In correspondence dated in March 2010, the payroll accountant for the Veteran's employer stated that the Veteran was currently employed and had been since 1972. She stated that between January 1, 2002 and February 28, 2002, he used 312 hours of sick leave. Based on a 40 hour workweek, this is 7.8 weeks, or roughly the entire 2 months. In addition, medical records show that on January 8, 2002, he had already been off work for two weeks. Based on this evidence, and the pertinent medical records, the Board finds that for this period, the Veteran's symptoms more closely approximated near-constant debilitating symptoms, and a 100 percent rating is warranted for the period from December 17, 2001, (when he first began experiencing significant side effects of the treatment) through February 28, 2002. After February 2002, he was able to return to work, and his symptoms showed improvement. However, during the remainder of the treatment period, he displayed significant symptoms, which the Board finds more closely approximate the criteria for a 40 percent rating. Daily fatigue, malaise, anorexia, and minor weight loss were all demonstrated. Although he did not have hepatomegaly, anemia was documented. Therefore, for the period from March 1, 2002, through December 31, 2002, a 40 percent rating is warranted. A rating higher than 40 percent is not warranted for that period. The Veteran did not have a substantial weight loss; even though his weight decreased to 158 pounds from 170 pounds shown in December 2001 at the outset of his treatment, he was still described as well-nourished. He did not have incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) requiring treatment and bedrest prescribed by a physician. By late December 2002, however, the Veteran's symptoms had improved dramatically. He no longer required continuous medication, and he had few symptoms. Indeed, no positive findings were reported until March 2005, when he reported fatigue, and laboratory studies showed an elevation in liver function tests. On the VA examination in February 2006, he appeared to be in clinical remission, and although he experienced residual mild fatigability, he denied any incapacitating episodes or other pertinent symptoms. On the VA examination in May 2010, he stated that for the past 8 years he had experienced intermittent abdominal cramping and pain, with nausea and sometimes vomiting. These cramps occurred about twice a month with a duration of about 1-2 days. He reported current symptoms of intermittent fatigue, malaise, nausea, vomiting, anorexia, and right upper quadrant pain. A 10 percent rating is already in effect for the period beginning December 31, 2002. As can be seen above, the rating criteria for higher ratings (except a 100 percent rating) provide for two alternative bases for an assigned rating-one based on the level of daily symptomatology, and the other based on the frequency of incapacitating episodes. For the next higher rating of 20 percent, if based on daily symptomatology, the symptoms must more closely approximate daily fatigue, malaise, and anorexia, requiring dietary restriction or continuous medication. The primary symptom he reported was fatigability. On the May 2010 examination, he also reported additional symptoms abdominal cramping and pain, with nausea and sometimes vomiting, on occasion. However, there were no dietary restrictions noted, nor did he require continuous medication; therefore a rating of 20 percent is not warranted on this basis. If rated based on incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain), the episodes must have a total duration of at least two weeks during a 12 month period. However, for an acute episode to constitute an "incapacitating episode" for rating purposes, it must be severe enough to require bed rest and treatment by a physician. Such has not been shown in this case after December 31, 2002. The AOJ granted a 20 percent rating effective June 24, 2015, explicitly based on the findings of a June 2015 VA examination. Because the 20 percent rating was granted, the Board declines to discuss whether the criteria for a 20 percent rating were met, based on the findings of the June 2015 examination report. However, as pointed out by the Veteran's representative, the examination itself was actually conducted in March 2015. The report of the examination was lost, and, as a result, a telephone interview of the Veteran was conducted in June 2015. The final report consisted of the results of that interview and the laboratory test results of March 2015, which were available. Accordingly, the Board agrees with the representative that the effective date of the increase to 20 percent should be the date of the March 2015 VA examination. With respect to whether an evaluation in excess of 20 percent is warranted on or after March 6, 2015, for a higher rating of 40 percent, based on daily symptoms, there must be, in addition to the daily fatigue, malaise, and anorexia contemplated for a 20 percent rating, there must be minor weight loss and hepatomegaly, neither of which has been demonstrated in this case. The Veteran denied loss of appetite and loss of weight in June 2015. An ultrasound in January 2012 showed a normal liver, and although laboratory tests in in March 2015 showed positive hepatitis C titer, liver function tests were normal. As to incapacitating episodes, the Veteran denied having any incapacitating episodes during the previous 12 months. Therefore, the Veteran's symptoms do not more closely approximate the criteria for a 40 percent rating. In conclusion, the Board has considered all relevant evidence of record, including the examination reports detailed above, and treatment records. Consideration has also been given to the Veteran's personal assertions regarding the severity of his hepatitis C. The collective body of evidence establishes that, for the reasons discussed above, staged ratings are warranted as follows: A 100 percent rating is warranted for the period from December 17, 2001, through February 28, 2002. A 40 percent rating, but no higher, is warranted for the period from March 1, 2002, through December 31, 2002. A 20 percent rating, but no higher, is warranted for the period beginning March 6, 2015. In reaching these determinations, the benefit-of-the-doubt rule has been applied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the remainder of the appeal period, i.e., from October 11, 2001, through December 16, 2001, and from January 1, 2003, through March 5, 2015, the evidence establishes that an evaluation in excess of 10 percent for hepatitis C is not warranted. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, to this extent, the preponderance of the evidence is against the claim. Id. Additionally, the procedural protections regarding reduction of evaluations do not apply in this case, where the reduction is a retroactively assigned staged disability rating. See Reizenstein v. Peake, 22 Vet App 202 (2008) aff'd sub nom 583 F.3d 1331 (Fed. Cir. 2009); Singleton v. Shinseki, 23 Vet. App. 376 (2010) In particular, the Veteran's disability rating was not reduced, for any period of time, to a level below what was in effect when the matter was appealed to the Board. See O'Connell v. Nicholson, 21 Vet. App. 89 (2007). Extraschedular Consideration The Board has also considered the application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the symptomatology related to the Veteran's service-connected hepatitis C. He has described symptomatology involving fatigability, as well as, at times, abdominal cramping, nausea, vomiting, malaise, and anorexia. Such symptoms are contemplated by the rating schedule. The Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an evaluation in excess of 10 percent for hepatitis C prior to December 17, 2001, is denied. Entitlement to an evaluation of 100 percent for hepatitis C December 17, 2001, through February 28, 2002, is granted. Entitlement to a 40 percent rating, but no higher, for the period from March 1, 2002, through December 31, 2002, is granted. Entitlement to an evaluation in excess of 10 percent for the period from January 1, 2003, through March 5, 2015, is denied. Entitlement to a 20 percent rating, but no higher, for the period beginning March 6, 2015, is granted. (REMAND ON NEXT PAGE) REMAND During most of the lengthy appeal period concerning the issue of entitlement to a higher rating for hepatitis C, the Veteran was noted to be employed on a full time basis. However, in his June 2015 VA examination, he stated that he retired "a little early" at 62 years old, due to fatigability resulting from hepatitis C. Where a TDIU claim is raised in connection with a claim for a higher rating, it is inferred to be part of that claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran did not expressly state that he was unemployable due to service-connected disabilities, his assertion that he retired early from his job due to symptoms of a service-connected disability is sufficient to warrant further action. Accordingly, he should be asked to complete an application for a TDIU rating if he wishes to pursue that aspect of his claim, and, unless he does not, the RO must develop this issue. Accordingly, the case is REMANDED for the following action: 1. Tell the Veteran that it appears from his June 2015 statement that he retired "a little early" at 62 years old, due to fatigability resulting from hepatitis C, that he may be claiming to be unemployable due to service-connected disabilities. If so, such is considered to be part of his claim for an increased rating. If he wishes to pursue this aspect of the claim, he should complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, which should be enclosed. 2. Unless the Veteran indicates otherwise, take all necessary action to develop the claim, including notice, obtaining information from his previous employer and Social Security Administration (SSA), as well as relevant medical records. 3. Thereafter, adjudicate the TDIU claim. If it is denied, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board for action. 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs