Citation Nr: 1035604 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 98-19 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include situational depression and posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability evaluation for the Veteran's left ankle fracture residuals for the period prior to June 3, 1998. 3. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's left ankle fracture residuals for the period on and after June 3, 1998. 4. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran had active service from October 1984 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, established service connection for left ankle fracture residuals; assigned a noncompensable evaluation for that disability; and effectuated the award as of June 20, 1997. In June 2000, the Board, in pertinent part, remanded the issue of an initial compensable evaluation for the Veteran's left ankle fracture residuals to the RO for additional action. In September 2003, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for situational depression; denied service connection for a chronic sleep disorder; and denied a total rating for compensation purposes based on individual unemployability. In February 2004, the RO increased the evaluation for the Veteran's left ankle fracture residuals from noncompensable to 10 percent disabling and effectuated the award as of June 3, 1998. In August 2004, the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim of entitlement to service connection for PTSD. In February 2007, the Board remanded the Veteran's claims to the RO so that he could be afforded a hearing before a Veterans Law Judge. In January 2009, the Veteran was afforded a videoconference hearing before the undersigned Acting Veterans Law Judge. In a March 2009 decision, the Board reopened the Veteran's service connection claims for psychiatric disorders. However, the service connection claims for psychiatric disorders, the increased rating claims for residuals of a left ankle fracture, and the TDIU claim were again remanded in order to develop the Veteran's claimed PTSD stressors and afford him new VA psychiatric and orthopedic examinations. Regrettably, the issues of entitlement to service connection for an acquired psychiatric disorder, to include situational depression and PTSD, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to June 3, 1998, the Veteran's left ankle fracture residuals were manifested by normal range of motion of the left ankle, with no evidence of arthritis or ankylosis. 2. For the period since June 3, 1998, the Veteran's left ankle fracture residuals were manifested by dorsiflexion limited to no less than 10 degrees and plantar flexion limited to no less than 45 degrees, with no evidence of ankylosis. CONCLUSIONS OF LAW 1. Prior to June 3, 1998, the criteria for an initial compensable evaluation for left ankle fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5270, 5271 (1998). 2. Since June 3, 1998, the criteria for an initial evaluation in excess of 10 percent for left ankle fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5270, 5271 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duty to Notify and the Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders, 556 U.S. ___ (2009). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran's increased rating claim for his left ankle disability arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, the RO associated the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and private treatment records with the claims folder, and he was afforded VA examinations in August 1997, August 2002, and November 2009. To that end, 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). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left ankle disability since the November 2009 VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Increased Rating Claims Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted. In that case, the United States Court of Appeals for Veterans Claims (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 a 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 of 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 life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Entitlement to a Compensable Disability Evaluation for the Veteran's Left Ankle Fracture Residuals for the Period Prior to June 3, 1998 The Veteran initially filed a claim for entitlement to service connection for left ankle fracture residuals in June 1997. He was granted service connection for left ankle fracture residuals in a March 1998 rating decision and awarded a noncompensable evaluation effective from June 20, 1997, the date of his claim, under Diagnostic Code 5271. He filed a notice of disagreement seeking a higher initial evaluation in July 1998. Eventually, in a February 2004 rating decision, the RO increased his evaluation to 10 percent disabling effective June 3, 1998, the date on which he began receiving VA treatment due to complaints of left ankle pain. As such, the Board will first consider the propriety of the initial noncompensable rating for bilateral hearing loss prior to June 3, 1998. The Veteran's service-connected left ankle arthritis has been rated under Diagnostic Code 5271, which evaluates the ankle disability based on limitation of motion. Moderate limitation of motion of the ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. Part 4, Code 5271. Normal range of motion in an ankle is considered to be zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Ankylosis of the ankle provides higher ratings under Diagnostic Code 5270. With regard to the left ankle, the Veteran may also be rated under Diagnostic Code 5003. Diagnostic Code 5003 provides that arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent disability rating is warranted for X-ray evidence of arthritic involvement of two or more major joints, and a 20 percent rating is warranted when there is X-ray evidence of arthritic involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Thus, under Diagnostic Code 5003, the highest rating permitted is 10 percent for one joint; in this case, the left ankle joint. In the period between June 20, 1997, and June 3, 1998, the Veteran was afforded a VA joints examination in August 1997. The Veteran complained of recurrent myalgias, with no clear-cut arthralgias, joint, swelling, or impaired range of motion. Bilateral ankle joint examination revealed no swelling, tenderness, or abnormal range of motion. Treatment records from this period do not reveal limitation of motion of the left ankle. The VA joints examination which explicitly found that the Veteran did not suffer from abnormal range of motion, let alone "moderate" limitation of motion. Furthermore, there was no X- ray evidence of arthritis of the left ankle. Similarly, there was no evidence of ankylosis of the left ankle to warrant a higher rating under Diagnostic Code 5270. In light of the forgoing, the Board finds that the Veteran's complaints of pain were considered. Therefore, the applicable diagnostic codes, even in consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59, do not provide a basis for a compensable evaluation prior to June 3, 1998. Entitlement to a Disability Evaluation in Excess of 10 Percent for the Veteran's Left Ankle Fracture Residuals for the Period on and after June 3, 1998 As discussed above, in a February 2004 rating decision, the RO increased the Veteran's evaluation for left ankle fracture residuals to 10 percent disabling effective June 3, 1998, the date on which he began receiving VA treatment due to complaints of left ankle pain. As such, the Board must now consider whether the Veteran is entitled to a disability rating in excess of 10 percent on and after June 3, 1998. The Veteran was afforded two VA joints examinations during this time period. At the first such examination, conducted in August 2002, the Veteran complained of persistent, intermittent ankle pain which had worsened since the time of his August 1997 VA examination. He denied symptoms of instability and well as a history of surgery. In addition, he only described vague pain and was unable to relate a specific area of the ankle that was tender. Upon physical examination, his left ankle was found to have dorsiflexion up to 10 degrees and plantar flexion up to 50 degrees. He exhibited excellent subtalar motion, although there was some mild tenderness to palpation in the region of the anterior talofibular ligament. He had mild anterior drawer sign during plantar flexion and negative anterior drawer sign during dorsiflexion, and was otherwise neurovascularly intact. There was no evidence of subluxating peroneal tendons, and he exhibited good strength in the tibialis anterior and tibialis posterior, as well as in the peroneal muscles. X-rays revealed no fractures or dislocations, with very minimal or early degenerative osteoarthritic change in the left ankle. The examiner diagnosed the Veteran with left ankle pain and found no disabilities that would affect his function. In addition, he found no evidence of significant ankle instability. The Veteran was afforded his most recent VA joints examination in November 2009, at which time he was diagnosed with degenerative joint disease of the left ankle. The Veteran described giving way; instability; pain; weakness; incoordination; decreased speed of joint motion; locking episodes of one to three times per month; and severe, weekly flare-ups of joint disease. He did not describe constitutional symptoms or incapacitating episodes of arthritis, however. Upon physical examination, the examiner found that there was no inflammatory arthritis. The examiner found that there was mild weakness of the left toe extensors and flexors due to pain in the left ankle, as well as pain primarily in the Achilles' tendon area upon flexion, extension, inversion, and eversion. However, the examiner did not find evidence of ankle instability, tendon abnormality, or angulation. Upon range of motion testing, left ankle dorsiflexion was to 20 degrees, while left ankle plantar flexion was to 45 degrees. There was objective evidence of pain following repetitive motion, but no evidence of ankylosis. X-rays revealed minimal degenerative changes of the left ankle, with no evidence of acute fracture or dislocation. In addition, the Veteran was afforded an examination in March 2000 in conjunction with his Social Security Administration (SSA) disability benefits claim. The examiner conducted range of motion tests of his left ankle, and found his dorsiflexion, plantar flexion, inversion, and eversion to be normal. The Board finds that the symptomatology reflected in the evidence from June 3, 1998, to the present does not meet the criteria needed to establish an evaluation in excess of 10 percent for left ankle fracture residuals. Specifically, although the Veteran's dorsiflexion was limited to as much as 10 degrees at his August 2002 examination (20 degrees being normal) and he was able to plantar flex to 45 degrees at his November 2009 examination (45 degrees being normal), these cannot be said to constitute a "marked" limitation of motion, as necessary to establish a 20 percent rating. Moreover, although X-ray findings established arthritis in the left ankle, the highest rating permitted is 10 percent permitted for a single joint under Diagnostic Code 5003. Finally, as established in the November 2009 VA joints examination, there was no evidence of ankylosis to permit a higher rating under Diagnostic Code 5270. In light of the forgoing, the Board finds that the Veteran's complaints of pain were considered. Therefore, the applicable diagnostic codes, even in consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the DeLuca factors, do not provide a basis for an evaluation in excess of 10 percent since June 3, 1998. With respect to the Veteran's claim, the Board has also considered his statements that his disability is worse than rated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for his left ankle fracture residuals. He is clearly competent to make such assertions. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the service-connected disability is evaluated, more probative than the Veteran's assessment of the severity of his disability. In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeal is denied. In denying the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2008). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left ankle disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left ankle with the established criteria found in the rating schedule for arthritis and/or ankle disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology; as discussed above, the rating criteria considers loss of motion as well as pain on motion. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his left ankle disability. Additionally, although the Veteran has been unemployed for over a decade due to his psychiatric disability, there is not shown to be evidence of marked interference with employment due to his left ankle disability alone. There is nothing in the record which suggests that the left ankle disability itself markedly impacted his ability to perform his job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a compensable disability evaluation for the Veteran's left ankle fracture residuals for the period prior to June 3, 1998, is denied. Entitlement to a disability evaluation in excess of 10 percent for the Veteran's left ankle fracture residuals for the period on and after June 3, 1998, is denied. REMAND The Veteran also seeks entitlement to service connection for an acquired psychiatric disorder as well as entitlement to a TDIU. Unfortunately, the Board finds a remand necessary because the RO has not substantially complied with the Board's prior March 2009 remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. Although the RO is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). In March 2009, the Board remanded the issue on appeal to the RO for additional development regarding the Veteran's claim for service connection for situational depression and PTSD. In this regard, the Board instructed that the RO schedule the Veteran for a VA examination for compensation purposes which is sufficiently broad to accurately determine the current nature and severity of his chronic acquired psychiatric disabilities. Specifically, the examiner was asked to: . . . advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified psychiatric disability had its onset during active service; is etiologically related to the veteran's inservice psychiatric complaints and/or to a verified stressor; otherwise originated during or is causally related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities. The Board notes that the Veteran was afforded a new VA PTSD examination in January 2010 and diagnosed with dysthymia, polysubstance abuse, and borderline personality disorder. However, the examiner did not opine as to the likelihood that the Veteran's diagnosed psychiatric disorders were etiologically related to or aggravated by service or his service-connected disabilities. See Clemons v . Shinseki, 23 Vet. App. 1 (2009).Thus, the Board finds that Stegall requirements have not been met and the claim must be remanded in order to obtain an etiological opinion. Furthermore, with respect to the claim for entitlement to a TDIU, the Court has held that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The claim of entitlement to a TDIU requires consideration of the effect on employability of all service- connected disabilities. The determination regarding the remanded issue could impact the veteran's TDIU claim. The Board therefore finds these issues to be inextricably intertwined. Thus, adjudication of the TDIU claim will be held in abeyance pending further development of the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claims folder to the author of the January 2010 VA PTSD examination so that he can issue an addendum to his original opinion. This addendum should advance an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified psychiatric disability had its onset during active service; is etiologically related to the Veteran's in-service psychiatric complaints and/or to a verified stressor; otherwise originated during or is causally related to active service; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disabilities. The RO should send the claims folder to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. 2. The RO should then readjudicate the issues of entitlement to service connection for both a chronic depressive disorder, to include situational depression and chronic PTSD, and entitlement to TDIU. If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case which addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last supplemental statement of the case. The Veteran should be given the opportunity to respond to the supplemental statement of the case. 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 2002 & Supp. 2009). ______________________________________________ J. CONNOLLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs