Citation Nr: 1031968 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-03 257 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 40 percent for service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder. 3. Entitlement to an effective date earlier than April 30, 2004, for the assignment of a 40 percent evaluation for service- connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder. 4. Entitlement to an evaluation in excess of 10 percent for service-connected right elbow arthritis. 5. Entitlement to a compensable evaluation for service-connected hearing loss. 6. Entitlement to a compensable evaluation for service-connected malaria. 7. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Veteran and Observer ATTORNEY FOR THE BOARD L. L. Mollan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision, which granted a claim for service connection for PTSD and assigned a 10 percent evaluation, effective May 5, 2003; an October 2004 rating decision, which continued an evaluation of 30 percent for right upper arm gunshot wound residuals; an August 2006 rating decision, which increased the evaluation assigned to the Veteran's residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder to 40 percent, effective July 18, 2005; an August 2007 rating decision, which granted an earlier effective date of April 30, 2004, for the increased evaluation of residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder; and a June 2009 rating decision, which continued an evaluation of 10 percent for right elbow arthritis, continued a noncompensable evaluation for hearing loss, continued a noncompensable evaluation for malaria, and denied entitlement to TDIU. With respect to the Veteran's claim for an increased evaluation for PTSD, the Board notes that the evaluation assigned to this disability was increased to 30 percent, effective May 5, 2003, in a December 2004 rating decision. Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remained before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In March 2006, the Board issued a determination denying an evaluation in excess of 30 percent for the Veteran's service- connected PTSD. The Veteran appealed the Board's decision with respect to this issue to the United States Court of Appeals for Veterans Claims (Court). In January 2008, the Court issued an order granting a joint motion to remand (JMR) the appeal of this issue to the Board. The appeal was returned to the Board for action consistent with the JMR and Court order. Subsequently, in May 2009, the Board vacated the March 2006 Board decision with respect to this issue and remanded the issue in order to afford the Veteran a current VA examination. This issue is now before the Board once again. Additionally, the Board notes that a June 2009 rating decision also continued an evaluation of 10 percent for tinnitus. The Veteran indicated in an August 2009 notice of disagreement (NOD) that he disagreed with the denial of this claim. This issue was included in a November 2009 statement of the case (SOC). However, as the Veteran did not indicate on his December 2009 statement in lieu of a VA Form 9 Appeal that he wished to appeal this issue, this issue is currently not on appeal before the Board. In April 2010, a videoconference hearing was held before the undersigned Veterans Law Judge at the St. Louis, Missouri RO. A transcript of that proceeding has been associated with the claims folder. The issues of entitlement to an evaluation in excess of 30 percent for service-connected PTSD; entitlement to an evaluation in excess of 40 percent for service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder; entitlement to an evaluation in excess of 10 percent for service-connected right elbow arthritis; entitlement to a compensable evaluation for service-connected hearing loss; entitlement to a compensable evaluation for service-connected malaria; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the VA RO. FINDING OF FACT It was not factually ascertainable based on the lay and medical evidence of record that the Veteran's residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder were severe in nature prior to April 30, 2004. CONCLUSION OF LAW The criteria for an effective date prior to April 30, 2004, for the grant of an increased rating of 40 percent for service- connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for an earlier effective date, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in May 2004 and June 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the June 2006 letter described how disability ratings and effective dates were assigned. Furthermore, the Board notes that, for claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Additionally, once a claim for service connection has been substantiated, the filing of a NOD with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and VA and private medical records relevant to the Veteran's claim for an earlier effective date are in the file. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking entitlement to an effective date prior to April 30, 2004, for the assignment of a 40 percent evaluation for service- connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder. Where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award 'shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.' 38 U.S.C.A. § 5110(b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2009); Harper v. Brown, 10 Vet. App. 125 (1997). If such an increase is not factually ascertainable within the year prior to the date of receipt of the claim, the effective date shall be the date of the receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2009). The Board notes that the disability rating assigned for the Veteran's service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder was increased to 40 percent, effective April 30, 2004. The Veteran contended at the April 2010 hearing that he felt his symptoms and the manifestations of this disability remained consistent throughout the year prior to the filing of his claim for an increased evaluation. As such, the Veteran's representative has essentially argued that the Board should consider whether it is factually ascertainable that an increase in disability occurred within 1 year prior to the receipt of this claim. A review of the evidence of record reveals that the RO chose an effective date of April 30, 2004, because this was the date that the Veteran filed a claim for an increased rating with regard to this disability. The Board notes that gunshot wounds often result in impairment of muscle, bone, and/or nerve. Through and through wounds and other wounds of the deeper structures almost invariably destroy parts of muscle groups. See 38 C.F.R. § 4.47. Muscle Group (MG) damage is categorized as slight, moderate, moderately severe and/or severe and evaluated accordingly under 38 C.F.R. § 4.56. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (diagnostic codes 5301 through 5306); 3 muscle groups for the forearm and hand (diagnostic codes 5307 through 5309); 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318); and 5 muscle groups for the torso and neck (diagnostic codes 5319 through 5323). 38 C.F.R. § 4.55(b) (2009). The Board notes that the combined evaluation of Muscle Groups acting on a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of Muscle Groups I and II acting upon the shoulder. 38 C.F.R. § 4.55(d). For compensable Muscle Group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured Muscle Group will be increased by one level and used as the combined evaluation for the affected Muscle Groups. 38 C.F.R. § 4.55(e). For Muscle Group injuries in different anatomical regions which do not act upon ankylosed joints, each Muscle Group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25 (2009). 38 C.F.R. § 4.55(f). Evaluation of residuals of gunshot wound injuries includes consideration of resulting impairment to the muscles, bones, joints and/or nerves, as well as the deeper structures and residual symptomatic scarring. 38 C.F.R. §§ 4.44, 4.45, 4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54 (2009). In considering the residuals of such injuries, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41 (2009). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c) (2009). The criteria of 38 C.F.R. § 4.56 are guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. See Robertson v. Brown, 5 Vet. App. 70 (1993), Tropf v. Nicholson, 20 Vet. App. 317 (2006). Under 38 C.F.R. § 4.56, characteristics of a slight disability of affected muscles include a simple wound of muscle without debridement or infection, service department record of superficial wound with brief treatment and return to duty; with healing with good functional results. Objective findings include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus; no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(2) describes moderate disability of muscles: (i) Type of injury: through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection; (ii) History and complaint: service department record or other evidence of in- service treatment for the wound; record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles; (iii) Objective findings: entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. A moderately severe disability of the muscles anticipates a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of the soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound in service. A record of cardinal symptoms, such as loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement, and evidence of unemployability because of inability to keep up work requirements should be considered. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on palpation of loss of deep fascia, moderate loss of muscle substance, or normal firm resistance of muscles compared to a sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of moderately severe loss. 38 C.F.R. § 4.56(c) (2009). A severe muscle disability results from a through-and-through or deep-penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, with intermuscular binding and cicatrization and service medical records or other evidence showing hospitalization for a prolonged period for treatment of the wound. Objective findings may include a ragged, depressed and inherent scars indicating wide damage to muscle groups in missile track, palpation showing moderate or extensive loss of deep fasciae or muscle substance, or soft flabby muscles in wound area and abnormal swelling and hardening of muscles in contraction. Tests of strength, endurance, or coordinated movements compared with decreased muscles of the non-major side indicate severe impairment of function. 38 C.F.R. § 4.56(d) (2009). The evidence in this case indicates that the Veteran's gunshot injury has been evaluated under 38 C.F.R. § 4.73, Diagnostic Codes 5306-5305. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2009). The Board notes that Diagnostic Code 5305 contemplates Muscle Group (MG) V and Diagnostic Code 5306 contemplates Muscle Group (MG) VI. MG V encompasses the flexor muscles of the elbow, including the biceps, brachailis and brachioradialis. The function of MG V is supination of the elbow. Diagnostic Code 5305 provides a 10 percent rating for a moderate injury, a 30 percent rating for moderately severe injury, and a 40 percent rating for severe injury of this MG. 38 C.F.R. § 4.73, Diagnostic Code 5305 (2009). Disabilities of MG VI are rated according to Diagnostic Code 5306. The function of MG VI is extension of the elbow, and this group encompasses the extensor muscles of the elbow, including the triceps aconeus. A 10 percent rating is assignable for moderate disability of MG VI of the dominant extremity, a 30 percent rating is assignable for a moderately severe disability, and a 40 percent rating is assignable for a severe disability. 38 C.F.R. § 4.73, Diagnostic Code 5306 (2009). The Board has reviewed all the evidence of record in the file. In the August 2006 rating decision, the RO stated that the currently assigned 30 percent evaluation was warranted based on findings of a moderately severe impairment. However, the RO determined that, when taking into account the additional impairment imposed on the right shoulder in the form of degenerative changes with associated pain and loss of motion from the gunshot wound injury, an increase in evaluation to 40 percent was warranted. It appears that this determination was based largely on results from a July 2006 VA examination. The Board has considered whether the evidence of record reflects that it is factually ascertainable that the Veteran met the criteria for a 40 percent evaluation in the year prior to the receipt of the Veteran's claim on April 30, 2004. However, the claims file contains no medical evidence of record in the year prior to the receipt of the Veteran's April 30, 2004, claim regarding this disability. In a VA medical record from April 9, 2003, over 1 year prior to the receipt of this claim, it was noted that the Veteran had a history of intermittent right shoulder pain. However, this medical record does not reflect that the Veteran's service-connected residuals of gunshot wound resulted in severe impairment as contemplated by the criteria of 38 C.F.R. § 4.56. For example, this record does not suggest that, during that one year period prior to his claim, his disability was manifested by objective findings of significant weakness or lack of endurance as compared to the other upper extremity, or moderate or extensive loss of deep fasciae or muscle substance; or soft flabby muscles in wound area accompanied by abnormal swelling and hardening of muscles in contraction. The Board acknowledges the Veteran's assertion that his condition was severe enough in the year preceding the receipt of his April 30, 2004, claim to warrant an evaluation of 40 percent. However, while the Veteran is certainly competent to report symptoms such as pain, his very general description as to the severity of his disability during that one year period do not establish that his residuals met the objective findings set forth under the rating criteria so as to establish entitlement to an increased rating during that period. As such, the Board finds that an effective date prior to April 30, 2004, for the grant of an increased rating of 40 percent is not warranted. In summary, the Board concludes that the preponderance of the evidence is against finding that an effective date prior to April 30, 2004, is warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Entitlement to an effective date earlier than April 30, 2004, for the assignment of a 40 percent evaluation for service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder is denied. REMAND The Veteran is seeking entitlement to an evaluation in excess of 30 percent for service-connected PTSD; entitlement to an evaluation in excess of 40 percent for service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder; entitlement to an evaluation in excess of 10 percent for service- connected right elbow arthritis; entitlement to a compensable evaluation for service-connected hearing loss; entitlement to a compensable evaluation for service-connected malaria; and entitlement to a TDIU. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of these claims. VA has an obligation under the VCAA to associate all relevant records in VA's possession, as well as all relevant records from private healthcare providers, with the claims file of a Veteran. 38 C.F.R. § 3.159 (2009). The Board notes that the Veteran indicated at the April 2010 hearing that he seeks treatment at the Veterans Hospital in Kansas City. He indicated that he is prescribed pain pills for his gunshot wound residuals and, about 6 months or 1 year prior to the hearing, a possible operation was discussed for his left arm, due to overuse as a result of his right arm disabilities. Additionally, he asserted that an operation on his right arm at some point in the future has also been discussed. He further indicated that he has undergone electrical shock treatments from a private doctor. With respect to his hearing loss claim, the Veteran indicated at the April 2010 hearing that the last time that he sought treatment at a VA facility in Leavenworth, he was given information about obtaining hearing aids by a specialist. With respect to the Veteran's PTSD claim, he indicated at the April 2010 hearing that he had not had any treatment with regard to his PTSD in the past year or so; he did not indicate whether or not he has had treatment in the past 4 years for his PTSD. The Board notes that the claims file contains VA examination reports from April 2009. However, it does not appear that any of the Veteran's VA treatment records have been associated with the claims file since August 2006, nearly 4 years ago. As such, any recent relevant VA treatment records not currently associated with the claims file should be obtained, to specifically include any VA treatment records dating back to August 2006 from VA facilities in Kansas City or Leavenworth. Furthermore, the Veteran indicated at the April 2010 hearing that he sought private treatment approximately 2 years prior at the Cameron Regional Hospital emergency room for a fever that he believes could be associated with his malaria. It does not appear that the claims file contains these records. As such, attempts should be made to locate all relevant private treatment records that have not yet been associated with the claims file, to specifically include all private treatment records from Cameron Regional Hospital and any private treatment records regarding electrical shock treatment referred to at the April 2010 hearing. With regard specifically to the Veteran's claim for an evaluation in excess of 40 percent for service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder, the Board notes that the most recent examination for this disability was conducted in July 2006. The Court has held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As approximately 4 years have passed since the July 2006 VA examination, the Board finds that a new VA examination is warranted to determine the current severity of the Veteran's service-connected residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder. With regard to the Veteran's claim for an increased rating for his service-connected right elbow arthritis, the Board notes that the Veteran underwent a VA examination for this disability in April 2009. However, at the April 2010 hearing, the Veteran implied that his right elbow disability had increased in severity as recently as within the previous 6 months. As such, the Board finds that a new VA examination is warranted in order to determine the current severity of the Veteran's service-connected right elbow arthritis. Finally, regarding the Veteran's claim for entitlement to TDIU, the Board notes that the Veteran underwent VA examinations for some of his service-connected disabilities most recently in April 2009. While some these examination reports discuss the Veteran's employment history, it is unclear from the medical evidence of record whether the Veteran is unable to secure and maintain a substantially gainful occupation by reason of his service- connected disabilities only. As such, the Board finds that a VA examination is warranted in order to determine whether the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. Accordingly, the case is REMANDED for the following action: 1. Locate and obtain all available VA treatment records that have not yet been associated with the claims file, to include any recent VA treatment records. Specifically, any VA treatment records from the VA facilities in Leavenworth, Kansas, or Kansas City, Missouri, dating back to August 2006 that have not yet been associated with the claims file should be obtained. 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record, to specifically include any possible treatment records relating to treatment for a fever at Cameron Regional Hospital or any possible treatment records relating to electrical shock treatments at a private facility referred to in the April 2010 hearing transcript. The RO should also invite the Veteran to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. Associate any records received, including negative responses, with the claims file. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his residuals of gunshot wound, right triceps and biceps, to include degenerative changes and loss of motion of the right shoulder. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. The examiner must note in the examination report that the claims folder was reviewed in conjunction with the examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should also note the Veteran's complaints regarding symptoms associated with this disability. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of his right elbow arthritis. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. The examiner must note in the examination report that the claims folder was reviewed in conjunction with the examination. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should also note the Veteran's complaints regarding symptoms associated with this disability. 5. Schedule the Veteran for an appropriate VA examination for his claim for entitlement to TDIU. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. The examiner should elicit a history from the Veteran regarding his recent employment and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner should render an opinion as to whether the Veteran is precluded by reason of his service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner is advised that only symptoms related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities should be not be considered in this determination. The examiner should provide a complete rationale for any opinions provided. 6. Then, readjudicate the claims. In particular, review all the evidence that was submitted since the most recent SOC or supplemental statement of the case (SSOC) was issued with respect to these matters. In the event that the claims are not resolved to the satisfaction of the Veteran, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2009). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs