Citation Nr: 1004664 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 08-05 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to service-connected intervertebral disc syndrome and service-connected depressive disorder. 2. Entitlement to service connection for hypertension to include as due to service-connected intervertebral disc syndrome and service-connected depressive disorder. 3. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to a disability rating in excess of 50 percent for depressive disorder. 5. Entitlement to a disability rating in excess of 40 percent for intervertebral disc syndrome. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from April 1970 to April 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from the April 2007 and September 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal. The Board notes that the RO previously characterized two of the issues on appeal as entitlement to service connection for hypertension to include as due to service-connected depressive disorder and entitlement to service connection for diabetes mellitus, type II to include as due to service- connected depressive disorder. However, the record reveals that the Veteran has also contended that his hypertension and diabetes mellitus, type II were caused by his service- connected intervertebral disc syndrome. Although intervertebral disc syndrome was not listed in the issues on appeal, the RO did discuss the Veteran's contentions related to his service-connected disabilities, including intervertebral disc syndrome, and denied the claims in the January 2008 statement of the case. As such, the issues have been recharacterized as shown on the title page. The issues of entitlement to service connection for hypertension, entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, entitlement to a disability rating in excess of 40 percent for intervertebral disc syndrome, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. There is no evidence of diabetes mellitus, type II during active service or within one year after separation from service and no medical evidence relating the Veteran's diabetes mellitus, type II, to active service. 3. There is no medical evidence relating the Veteran's diabetes mellitus, type II to his service-connected intervertebral disc syndrome or service-connected depressive disorder. 4. The evidence of record shows that the Veteran experiences nightmares, flashbacks, irritability, disturbances of mood, difficulty understanding complex commands, short-term memory loss, some impaired impulse control, social and occupational impairment, and sleep impairment, but does not show that the symptomatology associated with the Veteran's service- connected depressive disorder more closely approximates occupational and social impairment with deficiencies in most areas due to such symptoms as: suicidal ideation, illogical speech, difficulty in adapting to stressful circumstances, spatial disorientation, neglect of personal hygiene and appearance, or inability to establish and maintain effective relationships. CONCLUSIONS OF LAW 1. Diabetes mellitus, type II, was not incurred in or aggravated by active military service, and may not be presumed to be, and is not proximately due to, the result of, or aggravated by the Veteran's service-connected disabilities. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.310 (2009). 2. The criteria for a disability rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 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. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran submitted his claim for an increased disability rating in February 2007 and the Veteran was sent a letter in March 2007. The letter notified him that, to substantiate a claim for increased compensation, the evidence must show that his service-connected disability had gotten worse. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was also informed 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. The Veteran was also notified as to the assignment of effective dates. Although the Veteran was not provided notification regarding the types of medical and lay evidence that the Veteran may submit prior to the initial adjudication of the claim, the Veteran was sent proper notice in May 2008. The May 2008 letter informed the Veteran of the types of evidence that might show such a worsening of the disability, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. Although the letter was not sent prior to initial adjudication of the claim, the Veteran was given an opportunity to respond following this notice and the claim was subsequently readjudicated in a June 2009 supplemental statement of the case and, therefore, any defect in the timing of the notice of this information was harmless. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Furthermore, with respect to the other claim on appeal, the notification requirements have been met. In the November 2006 letter, the Veteran was informed as to the requirements of service connection on a direct and secondary basis. Specifically, the letter stated that the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. Further, the letter noted that in order to establish entitlement to a disability that was caused or aggravated by a service-connected disability, the evidence must show that the Veteran currently has a physical or mental disability shown by medical evidence, in addition to the service- connected disability and evidence that the service-connected disability either caused or aggravated the additional disability. In addition, the RO notified the Veteran in the November 2006 letter about the information and evidence that VA will seek to provide. The letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as military records, and VA medical records. The Veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The Veteran was informed that he must provide enough information about his records so that they could be requested from the agency or person that has them. The November 2006 letter requested that the Veteran complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the letters informed him that it was his responsibility to ensure that VA received all requested records that are not in the possession of a Federal department or agency. Lastly, the November 2006 letter notified the Veteran regarding the assignment of disability ratings and effective dates. Thus, the Board finds that all notification requirements have been met. See Dingess, supra. VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate the claims, including VA treatment records, and by affording VA examinations. Concerning this, 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). The Board recognizes the Veteran's contention that his depressive disorder should be re-evaluated as he deserves a higher disability rating. However, the Board finds that the VA examination obtained in this case is adequate as it was based on a review of the claims file and all pertinent evidence of record as well as on a physical examination, and provides the medical information needed to address the rating criteria relevant to this issue. The Board notes that the Veteran was not provided a VA examination with respect to his claim for entitlement to service connection for diabetes mellitus, type II. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board concludes an examination is not needed in this case because the Veteran's service treatment records are absent for any evidence of diabetes mellitus, type II and the post- service treatment records are absent for any evidence of diabetes mellitus, type II until many years after service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). Furthermore, there is no indication that the Veteran's diabetes mellitus, type II, is related to any service- connected disability. As such, a remand for an additional VA examination is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. LAW AND ANALYSIS I. Service Connection for Diabetes Mellitus, type II In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In certain circumstances, presumptive service connection is awarded. For chronic diseases, exclusively listed in 38 C.F.R. § 3.309(a), to include diabetes mellitus, the disease must have become manifest to a degree of 10 percent or more within 1 year from date of separation from service. 38 C.F.R. § 3.307(a)(3). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the preponderance of the evidence is against the grant of service connection for diabetes mellitus, type II, on a direct basis. Initially, the Board notes that the VA treatment records confirm that the Veteran has a diagnosis of diabetes mellitus, type II. See January 2006 VA treatment record. However, the Veteran's service treatment records are negative for any findings, notations, or documentation of diabetes mellitus, type II. The March 1974 separation examination report was completely negative for any diagnosis or notation of diabetes mellitus. Moreover, the medical evidence of record does not show that the Veteran sought treatment for diabetes mellitus, type II immediately following his period of service or for many years thereafter. Indeed, the first diagnosis of diabetes mellitus was not noted until the 2000s, more than 20 years after the Veteran's separation from active service. The Board finds this gap in time significant and it weighs against the existence of a link between his current diabetes mellitus, type II, and his time in service. Cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). Therefore, the Board finds that the diabetes mellitus, type II, did not manifest in service or within one year thereafter. In addition to the lack of evidence showing that diabetes mellitus, type II, manifested during service or within close proximity thereto, the medical evidence of record does not link the Veteran's current diabetes mellitus, type II, to the Veteran's military service. Moreover, the Veteran has not alleged that his diabetes mellitus, type II, is directly related to service, as he has instead claimed that it is secondary to his service-connected intervertebral disc syndrome. Therefore, the Board finds that diabetes mellitus, type II did not manifest during service or within one year thereafter, and has not been shown to be causally or etiologically to an event, disease, or injury in service. In light of the above, the Board finds that the preponderance of the evidence weighs against service connection for diabetes mellitus, type II, on a direct basis and therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Furthermore, in considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for diabetes mellitus, type II, on a secondary basis. As noted above, the Veteran has a current diagnosis of diabetes mellitus, type II and is service-connected for intervertebral disc syndrome. Thus, elements (1) and (2) of Wallin are met. However, the third element of Wallin has not been met. Although the Board acknowledges the Veteran's statements that his intervertebral disc syndrome and depressive disorder caused him to gain weight which in turn caused his diabetes mellitus type II, there is no competent medical evidence that provides a link between the Veteran's diabetes mellitus type II and his service-connected disabilities. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, in this case, the Veteran is not providing statements related to a simple diagnosis or symptomatology, but is instead rendering an opinion as to the etiology of his diabetes mellitus, type II. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). There is no indication in the record that the Veteran is a physician or other health care professional. Therefore, as a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); see also Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). Therefore, the Veteran's statements regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. For the reasons stated above, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus, type II, on a direct and secondary basis. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with must be denied. II. Increased Disability Rating for Depressive Disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran's depressive disorder has been rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. Under this code, a 50 percent evaluation is contemplated for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability evaluation is contemplated for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is contemplated for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. Under the criteria when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126 (2009). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. The Veteran contends that his service-connected depressive disorder warrants a disability rating in excess of 50 percent. In the September 2007 statement, the Veteran stated that his depression has been characterized as severe and, therefore, he warrants a 100 percent disability rating. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a disability rating in excess of 50 percent for his service-connected depressive disorder. Initially, the Board notes that the VA treatment records reveal symptoms of sleep impairment, disturbances of mood, short term memory loss, difficulty in understanding complex commands, and social and occupational impairment. The foregoing symptoms have been contemplated in the Veteran's currently assigned 50 percent disability rating. Moreover, the Board notes that the overall symptomatology associated with the Veteran's depressive disorder does not closely approximate the schedular criteria for the next higher 70 percent disability rating. There is no evidence of suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, difficulty in adapting to stressful circumstances, or inability to establish and maintain effective relationships. In this regard, the VA treatment records show that the Veteran as oriented in all spheres. Additionally, the Veteran's speech has consistently been characterized as coherent. Further, the Veteran has consistently denied experiencing suicidal ideation and has not reported any obsessional rituals. See VA treatment records and October 2006 QTC examination report. Although the Veteran does have abnormal mood and affect as he is depressed, there is no indication of any deficiencies in judgment or thought. Although the Veteran reported once that his thoughts were difficult to keep in order, his thoughts, overall, have been noted as organized. See VA treatment records. In fact, the October 2006 examiner explained that the Veteran's behavior was appropriate, judgment was not impaired, and abstract thinking was normal. Furthermore, the Board recognizes that there was a notation of neglect of hygiene in the October 2006 QTC examination report; however, the examiner also noted that appearance and hygiene were appropriate. In addition, the Veteran has been noted as well groomed in the VA treatment records. Furthermore, the Board acknowledges that the Veteran experiences near-continuous depression. See VA treatment records. However, the October 2006 QTC examination report specifically explained that the Veteran's near-continuous depression does not affect his ability to function independently. The Board notes that there has been some indication of impaired impulse control. In this respect, the lay statements from D.R.D. and K.M. explained that the Veteran had a short-tempered which included yelling at his wife. Although the Board acknowledges that this is a symptom addressed in the criteria for a 70 percent disability rating, the Board finds that, overall, the Veteran's disability picture more nearly approximates a 50 percent disability rating. Accordingly, the Board finds that the Veteran's overall symptomatology more closely approximates the schedular criteria associated with the currently assigned 50 percent evaluation for his PTSD. In rendering the above determination, the Board recognizes that the Veteran has experienced social and occupational impairment. Socially, the Veteran has avoided social activities, has increased conflict with family and friends, lack of intimacy with his wife, and his best friend has stopped talking to him. However, it does not appear that the Veteran has an inability to maintain effective relationships. Indeed, although the Veteran has problems with his wife, he is still married and attends family functions, albeit, with limited involvement. See lay statements. More importantly, the October 2006 examiner noted that while the Veteran had difficulty maintaining effective relationships, he did not have an inability to maintain effective relationships. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Industrially, the Veteran has reported that he has difficulty understanding complex commands and trouble maintaining work and social relationships because of his severe back pain and depression. The Veteran also stated that he was scared that he would lose his job because of his symptoms. However, the Veteran still reported that his relationships with his supervisor and co-workers were fair and has consistently attributed the majority of his problems at work due to his service-connected back disability. See VA treatment records. Indeed, the Veteran's psychiatrist even stated that the Veteran could not work due to his back disability. See July 2006 VA treatment record. The Veteran's co-worker, M.C., also attributed the Veteran's difficulty at work to his back disability. Thus, although the Veteran obviously has occupational impairment, primarily consisting of difficulty understanding complex tasks and some conflict with others, this symptom does not warrant a higher disability rating of 70 percent. In fact, the Veteran's currently assigned disability rating of 50 percent contemplates occupational impairment with reduced reliability and productivity. The Board further observes that the next higher rating is not warranted because the competent evidence of record does not demonstrate that the Veteran's symptomatology most closely approximates a 100 percent rating. The Board recognizes that one VA treatment record noted that the Veteran was permanently disabled due to his service-connected back disability and depression. However, this opinion does not suggest that the Veteran has total occupational and social impairment solely due to his service-connected depressive disorder. Indeed, the Veteran does not exhibit any of the symptoms listed in the criteria for a 100 percent disability rating. The Veteran does not experience total occupational and social impairment as the Veteran is currently employed and still married to his wife. Further, the evidence does not show that the Veteran has gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation as to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the Veteran has reported occasional hypnogogic hallucinations and sometimes hears music when he is very tired. However, there is no indication that this symptom is persistent and one displayed symptom does not warrant a disability rating of 100 percent. As noted above, the Veteran's depressive disorder has been consistently noted as 55, indicative of moderate impairment, not serious impairment or symptomatology. Therefore, the Veteran's overall symptomatology more closely approximates the schedular criteria for the 50 percent disability rating. In reaching this conclusion, the Board takes note of the GAF scores. As noted above, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). For example, a 61-70 GAF score reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. GAF scores ranging between 51- 60 reflects moderate symptoms (e.g., flat affect, circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; see also VAOPGCPREC 10-95 (Mar. 31, 1995) (cited at 60 Fed. Reg. 43,186 (Aug. 18, 1995)). The records show that the Veteran has been assigned GAF scores of 65 and higher, indicating mild symptomatology. However, he has been most recently assigned GAF scores of 55, indicating moderate symptomatology. As such, the Board finds that the preponderance of the evidence, indicates that the Veteran's depressive disorder symptoms more nearly approximate a moderate occupational and social impairment, and do not equal or more nearly approximate the criteria for a 70 percent disability rating. The Board acknowledges the Veteran's and his family and friends beliefs that his symptoms are more severe than the current disability rating reflects. In a June 2006 statement, the Veteran's wife stated that the Veteran had mood swings, was hostile with verbally abusive outbursts, was easily irritated, and had conflicts with others. In a July 2006 statement, A.W. stated that the Veteran was short- tempered and anxious. In a statement from E.A.H., it was noted that the Veteran can be irritable and emotionally distant. In a July 2006 statement, D.R.D. explained that the Veteran had become verbally hostile and agitated and verbal and emotional abuse to his wife. However, the Board finds more probative the examiner's psychiatric opinion in the October 2006 QTC examination report. The VA examiner reviewed the Veteran's claims file as well as examined him, noted his relevant history and complaints, and provided a GAF score of 55, indicative of moderate impairment. The Board has taken into account the Veteran's short temper and irritability, but has determined that the Veteran's overall symptomatology more nearly approximates the currently assigned 50 percent disability rating. While the Veteran and his friends and family are competent to provide evidence of visible symptoms, they are not competent to provide opinions regarding the severity of the Veteran's service-connected depressive disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In sum, the evidence of record demonstrates that the Veteran successfully maintains his personal appearance and hygiene, has coherent thoughts, and normal judgment. Although the Veteran has exhibited irritability with some poor impulse control, there is no indication that the Veteran has ever become violent. The record also demonstrates that he is able to function independently, and has no delusions or cognitive impairment. He does, however, exhibit a depressed mood, anxiety, and chronic sleep impairment due to nightmares and difficulty in maintaining family and occupational relationships. Based on the foregoing, the Board finds that the Veteran's depressive more closely approximates the criteria for a 50 percent rating for the entire appeal period and entitlement to an increased rating on a schedular basis is therefore unwarranted. Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board has also considered referral for extra-schedular consideration. See Thun v. Peake, 22 Vet App 111 (2008). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected depressive disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's symptoms with the established criteria found in the rating schedule for mental disorders shows that the rating criteria reasonably describe ratings for mental disorders, but the Veteran simply does not exhibit those symptoms. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), there is no evidence in the medical records of an exceptional or unusual clinical picture. Further, the record does not show that the Veteran has required frequent hospitalizations for his service- connected disability. In addition, there is nothing in the record which suggests that the above condition markedly impacted the Veteran's ability to work. Although it is clear that the Veteran's service-connected depressive disorder has resulted in occupational impairment, the evidence as explained previously, shows that the Veteran's service- connected intervertebral disc syndrome plays the largest role in the Veteran's employment. In any event, it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Therefore, the Board finds that the criteria for submission for assignment of extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for a 50 percent disability evaluation and a higher rating is not warranted. Therefore, the Veteran's claim for an initial increased disability evaluation in excess of 50 percent for depressive disorder must be denied. 38 C.F.R. § 4.71a, Diagnostic Code 9434. ORDER Entitlement to a disability rating in excess of 50 percent for depressive disorder is denied. Entitlement to service connection for diabetes mellitus, type II to include as secondary to service-connected intervertebral disc syndrome and service-connected depressive disorder, is denied. REMAND Reasons for Remand: To afford the Veteran VA examinations. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). First, with respect to the Veteran's claim for a disability rating in excess of 40 percent for service-connected intervertebral disc syndrome, the Board finds that an additional VA examination report is necessary. Initially, the Board observes that the Veteran's disability was previously characterized as compression fracture of L1 with spondylolisthesis at L5-S1. However, in an addendum to the October 2006 QTC examination report, the examiner explained that the Veteran's diagnosis had progressed to include intervertebral disc syndrome of the lumbar spine at L3-S1 with peripheral nerve involved being the right sciatic nerve. After reviewing the October 2006 QTC examination report, the Board finds that it is inadequate for rating purposes. Although the examination report contains range of motion findings, the examiner did not note as to whether the Veteran experienced any incapacitating episodes. The medical evidence shows that the Veteran had to take one month off due to his back pain. Further, the September 2006 VA treatment record shows that the Veteran requested a work excuse for his back pain. The Veteran stated that he had much worse pain in his back and needed a work excuse so that he could rest his back. The Veteran is currently assigned a 40 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a. As such, the October 2006 QTC examination report does not contain all of the findings necessary to evaluate the Veteran's disability under the rating criteria. Therefore, the Board finds that another VA examination is necessary to determine the current severity and manifestations of the Veteran's intervertebral disc syndrome. In addition, the evidence of record reflects that the Veteran's service-connected intervertebral disc syndrome has resulted in problems with his current employment. The Veteran has worked in refrigeration repair for more than twenty years. However, the Veteran has consistently reported that his severe back pain has made it very difficult for him to work at his job. In a September 2006 VA treatment record, the Veteran reported that his back pain renders him unable to work and that he could not do any lifting anymore. Despite this evidence, the RO has yet not considered whether referral under 38 C.F.R. § 3.321(b)(1) is appropriate. Under that provision, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). As such, the RO should also consider whether referral for an extra-schedular rating for the Veteran's service-connected intervertebral disc syndrome is appropriate. In addition, the Board observes that if the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service- connected disabilities, a TDIU may be assigned. See 38 C.F.R. § 4.16(b); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (holding that once a Veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). As stated in Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is not a separate claim for benefits but rather is an attempt to obtain an appropriate rating for a disability as part of an initial adjudication of a claim or as part of a claim for increased compensation. In this case, as explained above, the Veteran has contended that he cannot work due to his service-connected intervertebral disc syndrome. Thus, the Board finds that a claim of entitlement to a TDIU is reasonably raised by the record. However, the RO has not expressly adjudicated the issue of entitlement to a TDIU. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, the claim for entitlement to TDIU must be remanded to the RO for adjudication prior to the rendering of a decision by the Board on this claim. Furthermore, the Board also finds that the Veteran should be afforded a VA examination to determine the current severity of his peripheral neuropathy of the right lower extremity. The Board notes that the Veteran was afforded an examination in October 2006 for his service-connected intervertebral disc syndrome. In the examination report, the Veteran's peripheral neuropathy was also evaluated. Although the report documented findings such as diminished sensation and loss of muscle power, there was no indication as to whether the Veteran's disability resulted in muscular atrophy or whether there was complete or incomplete paralysis of the right lower extremity. The Veteran submitted a statement in 2007 stating that his peripheral neuropathy of the right lower extremity was worse. He reported that his leg constantly gave out and that he used his cane for support due to loss of balance. In light of the above, the Board finds that the issue should be remanded for a contemporaneous and thorough VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95. Lastly, the Veteran also seeks service connection for hypertension, which he claims is causally related to or aggravated by his service-connected intervertebral syndrome. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The medical evidence shows that the Veteran has hypertension and, as noted above, the Veteran is service-connected for intervertebral disc disease. However, the medical evidence of record is not sufficient to render a service-connection determination. In this respect, the Board acknowledges that the September 2006 VA treatment record noted that the Veteran's back pain elevated his blood pressure. However, there is no specific opinion as to whether the Veteran's hypertension is causally related to or aggravated by the service-connected intervertebral disc disease. Based on the evidence of record, the Board finds that a VA medical examination is necessary to clarify the nature and etiology of the Veteran's hypertension. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4); see also McLendon Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service- connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected intervertebral disc syndrome. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service- connected disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disabilities under the rating criteria. In particular, the examiner should indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes over the past 12 months. The examiner should also identify all neurological manifestations resulting from his service-connected spine disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a comprehensive VA neurological examination of the right lower extremity to determine the current extent and severity of the service-connected peripheral neuropathy. The examiner should review all relevant evidence in the claims file, and the examination report should reflect consideration of the Veteran's documented, relevant medical history. All appropriate tests and studies should be conducted, and all clinical findings should be reported in detail. The VA neurological examiner should make a finding regarding whether the Veteran's peripheral neuropathy of the right lower extremity is manifested by complete or incomplete paralysis and identify the nerves or nerves involved. If the paralysis is incomplete, the examiner should indicate whether the condition is mild, moderate, moderately severe, or severe with marked muscular atrophy. If the paralysis is complete, the examiner should discuss the specific manifestations of the complete paralysis particular to the nerve or nerves affected, to include whether the foot dangles and drops, whether there is no active movement possible of muscles below the knee, or whether flexion of the knee is weakened or lost. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The Veteran should be afforded a VA medical examination for the purposes of determining the nature and etiology of his current hypertension. The claims file must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that the hypertension was caused by or aggravated by the service-connected intervertebral disc syndrome. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After conducting any additional development deemed necessary, the RO should readjudicate the claims, to include the issue of TDIU, considering all the evidence of record. In rendering its decision, the RO must also consider the provisions of 38 C.F.R. § 4.16(b), to include whether referral to the Director, Compensation and Pension Service is appropriate. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs