Citation Nr: 0811278 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-31 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for right foot pes planus, third degree, with claw toes and history of osteomyelitis and amputation of the right great toe (right foot disability), currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for left foot pes planus, third degree, with claw toes, postoperative (left foot disability), currently evaluated as 30 percent disabling. 3. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from March 1974 to February 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision in which the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) awarded the veteran a temporary total (100 percent) rating for bilateral pes planus, for the period from January 10, 2003, through February 28, 2003. Prior to January 10, 2003, this disability had been rated as 50 percent disabling. As of March 1, 2003, this disability was again rated as 50 percent disabling, with an additional separate 10 percent rating assigned for amputation of the right great toe, and a noncompensable rating assigned for osteomyelitis of the right great toe. In that rating action, the RO also denied entitlement to TDIU compensation. In September 2003, the RO assigned a separate 40 percent rating for the veteran's right foot disability, and a separate 30 percent rating for his left foot disability, as characterized on the first page of this decision. These ratings were effective as of March 1, 2003. This case was previously before the Board in April 2006 when it was remanded for additional development. The Board remanded this case again in August 2007 to afford the veteran a Travel Board hearing before a Veterans Law Judge. The veteran was notified of such a hearing scheduled for October 24, 2007 via a notice letter dated September 24, 2007, but the veteran failed to report. The veteran did not offer to show good cause for his failure to attend and did not request that another hearing be scheduled. See 38 C.F.R. §§ 20.702, 20.704 (2007). As such, the Board will consider the request for a hearing to be withdrawn. The case has now been returned to the Board for further appellate consideration. In August 2003, a Decision Review Officer (DRO) hearing was held at the RO and a transcript of that hearing is of record. As a final preliminary matter, the Board notes that statements made by the veteran in the notice of disagreement, dated in June 2003, reflect his assertion that he is entitled to special monthly compensation due to the loss of use of his foot. As the RO has not yet adjudicated this issue, and it is not inextricably intertwined with the issues adjudicated on the merits, herein. As such, it is not properly before the Board and is referred to the RO for appropriate action. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The 40 percent rating currently assigned for the veteran's service-connected right foot disability is the maximum evaluation for an amputation of a leg below the knee; and factors warranting extraschedular consideration have not been shown. 2. There has not been demonstration by competent clinical evidence that the veteran's left foot disability results in functional impairment equivalent to the loss of use of the left foot. CONCLUSIONS OF LAW 1. The schedular criteria for a disability rating in excess of 40 percent for right foot pes planus, third degree, with claw toes and history of osteomyelitis with amputation of the right great toe have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.68, 4.71a, Diagnostic Codes 5165-67, 5276, 5278 (2007). 2. The schedular criteria for a disability rating in excess of 30 percent for left foot pes planus, third degree, with claw toes, postoperative, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.63, 4.71a, Diagnostic Codes 5165-67, 5276, 5278 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify 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 claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned in the event of award of benefits sought. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. In the present case, VA issued a VCAA notice letter in May 2006 from the VA to the appellant. The letter informed the appellant of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was requested to submit any relevant evidence in his possession to VA. The May 2006 letter also informed the veteran as to the law pertaining to assignment of a disability rating and effective date as the Court required in Dingess/Hartman. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In the case currently before the Board, the VCAA notice did not make specific reference to the relevant diagnostic codes and other applicable information. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no prejudice. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "[n]othing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. A statement of the case under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under those diagnostic codes. The appellant was, thus, informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the evaluation that the RO had assigned. Also, in the present case, the claimant demonstrated that there was actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements by the claimant and the claimant's representative, to include sworn testimony and arguments presented at the August 2003 DRO hearing on appeal, that demonstrates awareness of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). (See also DRO Transcript "Tr." at 1-3). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claims, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. After the notice was provided, the case was readjudicated and a Supplemental Statement of the Case was provided to the veteran in March 2007. The veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to him. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service VA treatment and examination. Additionally, the claims file contains the veteran's and lay statements in support of his claims, to include testimony at a local RO hearing. The Board has carefully reviewed his statements and testimony and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes 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 (2007). Amputation of the leg at a lower level, permitting prosthesis, warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2007). A loss of use of foot also warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5167 (2007). Analysis The Board has reviewed all of the evidence in the veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The veteran contends that higher ratings are warranted for his service-connected right and left foot disabilities. I. Increased rating- right foot disability Historically, an October 1975 rating decision granted service connection for bilateral pes planus, third degree, acquired with claw toes, postoperative, and assigned a 10 percent rating from February 4, 1975, then a total temporary (100 percent) rating from April 13, 1975, and then resumed the 10 percent rating from June 1, 1975. A June 1981 rating decision increased the evaluation to 30 percent disabling, effective October 31, 1980. A September 1997 rating decision granted a temporary total rating from March 15, 1996. After the convalescence period for the total temporary rating ended, the RO increased the veteran's service-connected bilateral pes planus disability to a 50 percent evaluation from June 1, 1996. The May 2003 rating decision on appeal awarded the veteran a temporary total rating for bilateral pes planus, for the period from January 10, 2003, through February 28, 2003. As of March 1, 2003, this disability was again rated as 50 percent disabling, with an additional separate 10 percent rating assigned for amputation of the right great toe, and a noncompensable rating assigned for osteomyelitis of the right great toe. In September 2003, the RO assigned a separate 40 percent rating for the veteran's service-connected right foot pes planus, third degree, with claw toes and history of osteomyelitis with amputation of the right great toe disability under Diagnostic Codes 5278-5165, and a separate 30 percent rating for his left foot disability, both effective March 1, 2003. In this regard, VA regulations provide that "[t]he combined ratings for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." 38 C.F.R. § 4.68 (2007). Since the schedular criteria provide for a maximum 40 percent disability for the amputation of a leg below the knee, including amputation of the foot, under 38 C.F.R. § 4.71a, Diagnostic Codes 5165-5167, a combined evaluation in excess of 40 percent for the veteran's right foot disability may not be granted under any schedular regulatory provision from March 1, 2003. As this is the maximum rating possible for the right foot, consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Therefore, any evaluation for the veteran's right foot disability in excess of 40 percent is only justified on an extraschedular basis. In this regard, the Board notes that ratings shall be based as far as practicable, upon the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluation is found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: "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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2007). The Board has considered entitlement to an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. In the instant case, however, the evidence does not show that the veteran's right foot disability alone interferes with employment beyond that contemplated in the currently assigned evaluation. Moreover, the evidence does not demonstrate that the right foot disability has resulted in the need for frequent periods of hospitalization. The evidence gathered at the August 2006 VA examination showed the veteran's shoe wear pattern is normal and that he had a cane to ambulate. The examiner noted that the veteran was healthy looking and did not appear to be in any pain. Further, it was noted that the veteran was working part-time as a parking lot attendant at the VA hospital for that last two months. The VA examiner opined that veteran's moderate pes planus is not of such severity as to preclude him from obtaining gainful employment. In light of the foregoing, the Board finds that the application of the regular schedular standards has not been rendered impracticable as the Board finds that his right foot symptomatology is contemplated by the schedular criteria of his current rating. Accordingly, the Board finds that an evaluation in excess of 40 percent for right foot disability, based on extraschedular entitlement, is not warranted. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In conclusion, the veteran has been assigned the maximum schedular disability rating of 40 percent for his service- connected right foot disability throughout the rating period on appeal period and the clinical evidence does not show distinct time periods exhibiting symptoms warranting staged evaluations. 38 C.F.R. § 4.68; Hart, 21 Vet. App. at 509-10. II. Increased rating- left foot disability As noted above, the veteran's service-connected left foot disability is currently rated as 30 percent disabling, under Diagnostic Code 5278. This Diagnostic Code provides for a 30 percent evaluation for unilateral pes cavus with marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus. A 50 percent evaluation is warranted for bilateral pes cavus with marked contraction of the plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus. 38 C.F.R. § 4.71a, Diagnostic Code 5278. In this regard, the Board notes that bilateral claw foot (Diagnostic Code 5278) and flatfoot (Diagnostic Code 5276) could afford the veteran a 50 percent rating, but the record reflects that the veteran has already been assigned separate ratings for his service-connected right and left foot disabilities. As such, a 50 percent rating for bilateral flatfoot or claw foot would constitute pyramiding. 38 C.F.R. § 4.14 (2007) (noting that the evaluation of the same disability or the same manifestations of a disability constitutes pyramiding and is prohibited); see also Brady v. Brown, 4 Vet. App. 203, 206 (1993) (noting that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity"). The Board notes that no other diagnostic code for rating the foot (Diagnostic Codes 5276-5284) can provide a rating greater than 30 percent and it also finds no alternative Diagnostic Code is more appropriate for rating the left foot disability at issue. The Board has also considered whether this case presents other evidence that would support a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of a claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain is a listed criterion for Diagnostic Codes 5276 and 5278 and the record does not otherwise denote fatigability or incoordination. As the evidence of record otherwise indicates that the 30 percent rating assigned adequately compensates the veteran for the level of impairment demonstrated, including pain on manipulation, the assignment of a schedular evaluation in excess of 30 percent is not found to be warranted on the basis of 38 C.F.R. §§ 4.40, 4.45, 4.59, or DeLuca. The pain documented in the record has been appropriately accounted for in the veteran's currently assigned 30 percent evaluation for his service- connected left foot disability. The Board has further considered whether the veteran's service-connected left foot disability is equivalent to the loss of use of the foot to warrant a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5167. The loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. See 38 C.F.R. §§ 3.350(b) and 4.63 (2007). Upon physical examination of the veteran's left foot, the VA examiner, in August 2006, stated that the veteran had moderate flatfoot with no clawing of the toes. The examiner noted that the heel and the Achilles tendon were neutral and there was no pain on manipulation of the foot. As previously stated, the VA examiner noted the veteran's shoe wear pattern was normal and that he had a cane to ambulate. The Board acknowledges the severity of the veteran's service-connected left foot, but it observes that the veteran retains effective function in his left foot. As such, the Board finds that the competent medical evidence does not show the equivalent of loss of use of the left foot. Additionally, it is noted that the veteran's disability involves a scar on his left foot. Therefore, the Board has considered whether the veteran is entitled to a separate rating for a scar. Disabilities of the skin are addressed under 38 C.F.R. § 4.118. Throughout the entirety of the appeal, evidence of a superficial and painful scar is required in order to achieve a rating under Diagnostic Code 7804. Here the evidence does not establish that such criteria have been met. Upon VA examination in August 2006, a surgical scar was noted over the dorsum of the second and third toes. The VA examiner did not provide any further description of the scar. Even so, the Board notes that the veteran has not raised any complaints regarding the scar. In view of the foregoing, the Board finds that a separate compensable evaluation for a left foot scar is not appropriate here. Esteban v. Brown, 6 Vet. App. 259 (1994). In conclusion, throughout the rating period on appeal, the competent clinical evidence does not demonstrate that the veteran's left foot disability results in functional impairment equivalent to the loss of use of the left foot and the clinical evidence does not show distinct time periods exhibiting symptoms warranting staged evaluations. Hart, 21 Vet. App. at 509-10. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, the evidence does not reflect that the left foot disability at issue causes marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to a rating in excess of 40 percent for right foot pes planus, third degree, with claw toes and history of osteomyelitis with amputation of the right great toe, is denied. Entitlement to a rating in excess of 30 percent for left foot pes planus, third degree, with claw toes, postoperative, is denied. REMAND In April 2006, the Board noted that the record reflected VA vocational rehabilitation treatment as of September 2003. It was noted that the claims file was devoid of evidence pertaining to vocational rehabilitation after that date. The Board instructed that the veteran's VA vocational rehabilitation records be associated with the claims folder. An e-mail of record, dated in May 2006, indicates that the requested "CER [was] mailed." The March 2007 supplemental statement of the case lists records from vocational rehabilitation in the "EVIDENCE" section of that document. However, after reviewing of the record, the Board cannot locate the aforementioned vocational rehabilitation records. Without such records, the Board is precluded from proper appellate review of the veteran's TDIU claim. As such, the Board finds that a remand is necessary to obtain the vocational rehabilitation records and associate them with the claims folder. Additionally, while this case was pending on appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that for an increased-compensation claim (to include a TDIU), 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the case must also be remanded for proper notice pursuant to Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of entitlement to TDIU in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), 38 C.F.R. § 3.159 (2007), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) and any other applicable legal precedent. Specifically, notify the claimant that, to substantiate the TDIU claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the service- connected disabilities and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to a TDIU, e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the service-connected disabilities. 2. Associate with the veteran's claims file all documentation/records prepared pursuant to VA vocational rehabilitation accorded him on and after September 2003. 3. Thereafter, readjudicate the issue of entitlement to TDIU on appeal. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B and 7112 (West Supp. 2007). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs