Citation Nr: 1031208 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-01 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a initial rating greater than 30 percent for service-connected posttraumatic stress disorder (PTSD), to include entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for PTSD and assigned a 30 percent disability rating, effective July 27, 2005. The Veteran has submitted several documents expressing his continuing disagreement with the RO's November 2005, August 2006, and June 2008 determination that a rating higher than 30 percent for PTSD is not justified. A review of the claims folder shows that the Veteran submitted a statement in June 2006 expressing disagreement with the RO's November 2005 rating decision granting him service connection for PTSD and assigning a 30 percent disability rating. Therefore, the Board finds that this June 2006 document constituted a valid Notice of Disagreement (NOD), such that the Veteran's claim has been continuously pending since his initial claim was filed in July 2005. See Palmer v. Nicholson, 21 Vet. App. 434, 436-37 (2007) (holding that an NOD must express dissatisfaction with an adjudicative determination and need not express a specific desire for appellate review). In June 2010, the Veteran testified at a video-conference hearing before the undersigned Veteran's Law Judge. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran's PTSD is manifested by significant occupational impairment and moderate social impairment, with reduced reliability and productivity including depression, anxiety, anger, irritability, nightmares, flashbacks, sleeplessness, inability to establish effective relationships, difficulty in adapting to stressful situations, and occasional suicidal thoughts. CONCLUSION OF LAW The criteria for 70 percent, and not higher, for service connected disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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); 38 C.F.R. § 3.159(b); See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court), held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 (b) require VA to review the information and 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. Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection for disability. In Dingess, 19 Vet. App. at 490-91, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As such, section 5013(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled. Therefore, as the notice that was provided in August 2005, before service connection was granted, was legally sufficient, VA's duty to notify in this case has been satisfied. Furthermore, the VA sent a letter in March 2006 that fulfilled the requirements of Dingess, and his claim was readjudicated in an August 2006 rating decision, a June 2008 rating decision, a December 2008 Statement of the Case (SOC), an August 2009 Supplemental Statement of the Case (SSOC), and a May 2010 SSOC. See Prickett v. Nicholson, 20 Vet App. 370, 376 (2006) (holding that the issuance of fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records and provided him VA examinations in September 2005, August 2006, March 2008, August 2008, and April 2010. Therefore, the duty to assist has been satisfied as there is no reasonable possibility that any further assistance to the Veteran by VA would serve any useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating the issue of entitlement to an initial rating in excess of 30 percent for PTSD. II. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 C.F.R. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 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). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which the Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service- connected. VA must assess the level disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the claim of the claim - a practice known a "staged rating." As discussed below, the Veteran has exhibited a consistent level of disability throughout the duration of the claim, such that the application of staged ratings is not necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In November 2005, the RO granted service connection for PTSD and assigned a 30 percent rating under DC 9411, effective from July 27, 2005. The Veteran disagrees with this assignment and contends that a rating in excess of 30 percent is warranted. The criteria for evaluating PTSD are found at 38 C.F.R. Part 4, DC 9411. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood; anxiety and suspiciousness; weekly (or less often) panic attacks; chronic sleep impairment, and mild memory loss, such as forgetting names, directions, and recent events. A 50 percent evaluation is warranted there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the portion of VA's Schedule for Rating Disabilities (the Schedule) that addresses service- connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as the DSM-IV). 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). GAF scores ranging between 31 and 40 are assigned when there is 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). GAF scores ranging between 21 and 30 are assigned when behavior is considerably influenced by delusions or hallucinations, or there is serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or an inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Review of the record shows that the Veteran has suffers from significant occupational impairment and social impairment with deficiencies in most areas. The Veteran's most frequent and severe symptoms include his problems with controlling anger, anxiety, irritability, flashbacks, nightmares, difficulty sleeping, depression, inability to enjoy activities, and the tendency to isolate and avoid crowds. See VA examination reports dated September 2005, August 2006, March 2008, August 2008, and April 2010; VA treatment records dated March 2005, April 2005, June 2005, March 2008 and April 2008; November 2006 SSA psychiatric review; August 2008 Decision Review Officer (DRO) hearing transcript; and June 2010 Board hearing transcript. He has also consistently reported symptoms of avoidance. Specifically, he avoids watching TV because of recent war coverage and avoided a VA employee who reminded him of a woman who was killed Vietnam. See VA examination reports dated September 2005, March 2008, August 2008, and April 2010. He also suffers from intrusive thoughts and persistent hypervigilance. See June 2005 VA treatment records; VA examination reports dated September 2005, August 2008, April 2010; and November 2006 SSA psychiatric review. Assigned GAF scores have ranged from 55 to 57 throughout the appellate period. See VA examination reports dated September 2005, August 2006, March 2008, August 2008, and April 2010; April 2005 VA treatment records. Reports of paranoia have varied. At his VA examinations in March 2008 and August 2008, no paranoid delusions were noted, but the Veteran mentioned feeling like people were thinking things about him, talking about him, or plotting against him on other occasions. See April 2005 and June 2005 VA treatment records and June 2010 Board hearing. The Veteran generally denied symptoms of obsessive, compulsive, or ritualistic behavior, psychosis, and panic attacks. See VA treatment records dated April 2005 and June 2005; and VA examination reports dated September 2005, August 2006, August 2008, and April 2010. However, at his June 2010 Board hearing he did testify that he experiences panic when he rides in the car with other people. He has also often shown a flat or restricted affect and appeared distressed, irritable, or angry at his treatment sessions and examinations. See VA treatment records dated April 2005, June 2005, March 2008 and April 2008; VA examination report dated September 2005, August 2006, and March 2008. However, on other occasions, his affect was noted to be normal and appropriate. See VA treatment records dated April 2005 and June 2008; August 2008 VA examination report. The Veteran has consistently presented as alert and oriented, with good hygiene, adequate to good eye contact, and normal speech. See VA treatment records dated April 2005 and June 2008; VA examination reports dated September 2005, August 2006, August 2008, March 2008, and April 2010. He was cooperative at four of his five VA examinations; at the March 2008 VA examination, the examiner noted that he was only minimally cooperative and would provide only nonspecific answers to the questions asked. Similarly, his insight and judgment were noted as fair at every examination besides the March 2008 examination, where the examiner found that the Veteran's insight was limited. The Veteran's thought process was noted to be regularly goal- directed and coherent, but he occasionally demonstrated and often complained of poor concentration. See VA treatment records dated March 2005, April 2005, and June 2005; VA examination reports dated September 2005, August 2006, March 2008, August 2008, and April 2010; and November 2006 SSA psychiatric review. In evaluating abstract thinking ability, the August 2006 and March 2008 VA examiners found his thinking to be mostly concrete. His memory was found to be grossly intact in September 2005, March 2008, and August 2008, but his short-term memory was found to be impaired at his August 2006 VA examination. At the March 2008 VA examination, the Veteran showed poor recall and could not do serial sevens, but the examiner also noted that he would not cooperate with the examination. The Veteran denied having hallucinations until March 2008, when he claimed that he hears voices and has visions at his VA examination. However, the VA examiner noted that there was no previous history of hallucinations and the Veteran could not provide any further detail regarding these experiences. The Veteran also subsequently denied experiencing hallucinations at a June 2008 VA mental health evaluation, but continued to report hallucinations at his subsequent examinations in August 2008 and April 2010, and before the Decision Review Officer in August 2008. The Veteran has also reported a history of substance abuse, found to be secondary to his PTSD by the August 2006 VA examiner, and has generally denied any suicidal or homicidal ideation. See VA treatment records dated March 2005, April 2005, and June 2005; VA examination reports dated September 2005, August 2006, March 2008, and August 2008. However, in August 2006 and April 2010, he reported that he thinks of suicide, but has no plans, and thinks of harming others when angry, but without risk of action. The Veteran has shown moderate social impairment. He has few social relationships other than with his wife, and at his June 2010 hearing he reported that she may have left. He reported having difficulty with that relationship due to his temper at the August 2006 VA examination. At his June 2010 hearing, he also reported that he gets along well with an uncle and his brother. The Veteran retains the feeling of attachment to others and wants to be around people, but nevertheless suffers from deteriorating relationships due to his inability to act on those feelings. See VA examination reports August 2008 and April 2010. He also often feels persecuted by people who try to persuade him to socialize, as he did with family members who tried to persuade him to attend a reunion, and generally prefers to be alone. See VA treatment records dated March 2005 and June 2005; VA examination reports dated September 2005, August 2006, and March 2008; and a February 2006 statement submitted by the Veteran. The occupational impairment suffered by the Veteran due to his PTSD is significant. While there is some indication that he attributed his inability to work to his carpal tunnel, it is apparent from the record that his symptoms of PTSD interfere with his ability to be employed meaningfully. See VA examination reports dated September 2005, August 2006, and March 2008 (reporting that the Veteran no longer works because of his hand disability); VA examination reports dated March 2008 and April 2010 (determining that the Veteran's PTSD symptoms would impair his employment functioning and affect his ability to be meaningfully employed). The Veteran has also consistently reported that his irritability and anger have caused him to quit several jobs. See VA treatment records April 2005 and June 2005; VA examination reports dated August 2006 and April 2010; and August 2008 DRO hearing transcript. In consideration of all the evidence of record, the Board finds that the overall disability picture for the Veteran's PTSD most closely approximates a 70 percent rating, warranted where there is warranted there occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran has continuous and ongoing problems with depression, anxiety, anger, irritability, nightmares, flashbacks, and sleeplessness that impair his inability to interact with others and his ability to find meaningful employment. There is no indication that he has any ability to establish new effective work or social relationships, and his ability to maintain his existing relationships is seriously impaired by his symptoms of anger, irritability, and occasional paranoia. The examination records also show some evidence of short-term memory loss and impairment in abstract thinking. He has also expressed thoughts of suicide, impaired impulse control, and difficulty in adapting to stressful circumstances, such as being in crowds or riding in a car. Although the Veteran has consistently been assigned a GAF score of 55 to 57, assigned when there are moderate symptoms, these reports must be interpreted in light of the whole recorded history, reconciling the various reports into a consistent picture to accurately represent the elements of disability present. See 38 C.F.R. § 4.2. Therefore, due to the significant occupational and social impairment shown upon review of the entire recorded history, the Board nevertheless finds that his symptoms are consistent with the type and degree of symptoms and their effects that justify a 70 percent rating under 38 C.F.R. § 4.130, DC 9411. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Here, the Veteran's symptoms do not rise to the level of severity indicated by the criteria for a 100 percent rating. While the Veteran he did exhibit some evidence of short term memory loss and impaired abstract thinking, these impairments are not of the same type and degree of cognitive impairment contemplated by the rating code. He did not demonstrate memory loss of basic personal information or otherwise show any gross impairment in his thought processes. Futhermore, the Veteran also consistently exhibited goal-directed thinking, fair judgment, fair insight, normal speech patterns, and spatial orientation. He also did not exhibit the impairments to everyday life exhibited by the type of symptoms listed in rating code for a 100 percent evaluation, such as neglect of personal appearance and hygiene. Additionally, while the evidence of record shows that the Veteran did express suicidal thoughts on occasion, he more often denied suicidal ideation and consistently denied any suicidal plans such that the record does not show a persistent danger of hurting himself or others. Lastly, in regard to the Veteran's assertions of delusions, the Board resolves any doubt in favor of the Veteran and finds that he does experience auditory and visual hallucinations. However, in consideration of the totality of the evidence of record, these hallucinations do not create a disability picture that more closely approximates the criteria required for a 100 percent rating, and the other symptoms shown are not of the same type of degree as the examples provided in the rating code. 38 C.F.R. §§ 4.7; 4.130, DC 9411. Therefore, as the Veteran's PTSD is manifested by significant occupational impairment and social impairment with deficiencies in most areas, due to symptoms such as depression, anxiety, anger, irritability, nightmares, flashbacks, sleeplessness, inability to establish effective relationships, difficulty in adapting to stressful situations, and occasional suicidal thoughts, the Board finds that the Veteran is entitled to a disability rating of 70 percent for his service-connected PTSD, but no higher. The rating schedule represents as far as is practicable the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's PTSD are not shown to cause any impairment that is not already contemplated by the rating criteria. DC 9411 contemplates social and occupational impairment, and there is no evidence indicating that the Veteran has undergone periods of hospitalization due to his PTSD. Therefore, the Board finds that the rating criteria reasonably describe his disability and referral for consideration of an extraschedular rating is not warranted in this case. ORDER An initial rating of 70 percent, and not higher, for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that, when evidence of unemployability is presented in cases such as this, the issue of whether a total disability rating based on individual unemployability due to service- connected disabilities (TDIU) will be assigned should be handled during the determination of the initial disability rating assigned at the time disabilities are determined to be service connected. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this regard, in Rice, the Court determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, this aspect of the Veteran's initial claim for compensation benefits should be addressed on remand. As the issue is being remanded, an effort should be be made to obtain any additional VA treatment records for the Veteran, dated since November 2008, and an opinion should be obtained on employability. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's treatment records from the VA Medical Center in Jackson, Mississippi, dated since November 2008. 2. Thereafter, schedule the Veteran for a VA psychiatric examination. The claims folder should be made available to and reviewed by the examiner. All indicated tests should be performed. The examiner should specifically comment on the effects of the Veteran's PTSD on his occupational functioning. In this regard, the examiner should state whether the Veteran's PTSD renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. All findings, conclusions, and opinions must be supported by a clear rationale. 3. Review the examination report to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. Finally, readjudicate the claim of entitlement to a TDIU. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs