Citation Nr: 1039167 Decision Date: 10/20/10 Archive Date: 10/27/10 DOCKET NO. 07-01 449 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial, compensable rating for left ulnar neuropathy and palsy, prior to July 21, 2007. 2. Entitlement to a rating in excess of 60 percent for left ulnar neuropathy and palsy, from July 21, 2007. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected left ulnar neuropathy and palsy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack INTRODUCTION The Veteran served on active duty from June 1965 to April 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 rating decision in which the RO, inter alia, granted service connection for left ulnar neuropathy and palsy and assigned an initial, noncompensable (0 percent) rating, effective September 30, 2004, the date of the Veteran's claim for service connection. In July 2006, the Veteran filed a notice of disagreement (NOD) with the assigned initial rating. A statement of the case (SOC) was issued in November 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2007. By rating decision in September 2007, the RO granted a 60 percent rating for the Veteran's left ulnar neuropathy and palsy, effective July 21, 2007. However, inasmuch as the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal on the question of higher rating as now encompassing the first and second matters on the title page. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, for reasons expressed below, the appeal also has been recharacterized to include a claim for a TDIU. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A June 2008 letter informed the Veteran that his hearing was scheduled on July 21, 2008. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2009). The Board's decision addressing the claims for higher ratings for left ulnar neuropathy and palsy is set forth below. The claim for a TDIU due to left ulnar neuropathy and palsy is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. As a final preliminary matter, the Board notes that, in a September 2010 written brief presentation, the Veteran's representative raised the issue of reopening the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). It does not appear that any request to reopen the claim for service connection for PTSD has yet been addressed by the RO. As such, this matter is not properly before the Board, and is thus referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. The Veteran is right-hand dominant. 3. Pertinent to the Veteran's September 30, 2004, claim for service connection and prior to July 21, 2007, the Veteran's left ulnar neuropathy and palsy has been manifested by intermittent painful lock up, cramping, and forcible flexion of the left hand fingers for 5 to 10 minutes at a time, wrist pain and locking, wrist drop of mild severity, weakness of the wrist extensors and wrist extensors of the fingers of 3+/5, decreased grip and forearm flexion strength of about 4/5, and impaired light touch and pinprick in the left ulnar distribution; these symptoms approximate mild incomplete paralysis of the ulnar nerve. 4. The 60 percent rating assigned for the Veteran's left ulnar neuropathy and palsy from July 21, 2007 is consistent with loss of use of the left minor extremity at a level below insertion of the pronator teres; given the amputation rule, this is the maximum rating assignable. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, for the period prior to July 21, 2007, the criteria for a 10 percent, but no higher, initial rating for left ulnar neuropathy and palsy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.40, 4.45, 4.124a, Diagnostic Code 8516 (2009). 2. The matter of a rating in excess of 60 percent for left ulnar neuropathy and palsy, from July 21, 2007, is without legal merit. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.20, 4.27, 4.40, 4.45, 4.68, 4.71a, Diagnostic Codes 5124, 5125 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). First addressing the matter of a higher rating for left ulnar neuropathy and palsy, from July 21, 2007, the Board notes that the RO has explained the basis for assignment of no more than a 60 percent rating, and afforded the Veteran an opportunity to provide information and evidence pertinent to this matter. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran in connection with this claim. As will be explained below, the claim lacks legal merit; therefore, the duties to notify and assist required by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Regarding the matter of a higher rating for the disability prior to July 21, 2007, the Board notes that notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). Effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a January 2005 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection. This letter also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The September 2005 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the January 2005 letter-which meets Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement. Post rating, the November 2006 SOC set forth the pertinent rating criteria for evaluating the disability under consideration, which suffices, in part, for Dingess/Hartman. The Board notes that the Veteran was not provided a specific letter providing general information regarding VA's assignment of disability ratings and effective dates, consistent with Dingess/Hartman. However, on these facts, the absence of such a letter is not shown to prejudice the Veteran. In addition to the applicable rating criteria, the November 2006 SOC included information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. Moreover, after issuance of the November 2005 letter and SOC, and opportunity for the Veteran to respond, the June 2008 supplemental SOC (SSOC) reflects readjudication of the claim. Cf. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the reports of July 2005 and July 2007 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the matters of higher ratings for left ulnar neuropathy and palsy is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either of the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of either of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Here, as noted in the introduction, the RO has already assigned staged ratings for the Veteran's left ulnar neuropathy and palsy, assigning an initial, noncompensable (0 percent) rating from the September 30, 2004, effective date of the award of service connection, and a 60 percent rating from July 21, 2007. Hence, consistent with Fenderson, the Board must consider the propriety of the rating assigned at each stage, as well as whether any further staged rating is warranted. The RO assigned the initial, noncompensable rating for the Veteran's left ulnar neuropathy and palsy pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8516. As the record reflects that the Veteran is right-hand dominant, the rating criteria for the minor extremity are for application in this case. DC 8516 sets forth the criteria for rating disabilities involving the ulnar nerve. For the minor extremity, mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a rating of 20 percent. Severe incomplete paralysis warrants a 30 percent rating. A maximum evaluation of 50 percent is warranted for complete paralysis of the ulnar nerve of the minor upper extremity, which is defined as being manifested by the "griffin claw" deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspace and thenar and hypothenar eminences; loss of extension of the ring and little fingers, inability to spread the fingers (or reverse), inability to adduct the thumb; and weakened flexion of the wrist. 38 C.F.R. § 4.124a, DC 8516. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2009); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The assigned the higher, 60 percent rating for left ulnar neuropathy and palsy, effective July 21, 2007, pursuant to DC 8516-5125, indicating impairment of the ulnar nerve rated, by analogy, to loss of use of the minor (non-dominant) hand. See 38 C.F.R. §§ 4.20, 4.27. Under 38 C.F.R. 4.71a § 5125, for the minor extremity, loss of use of the hand warrants a maximum 60 percent rating. The Board notes that the "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. See 38 C.F.R. § 4.68. Amputation of the minor forearm below insertion of the pronator teres warrants a 60 percent rating. 38 C.F.R. § 4.71a, DC 5124 (2009). In this case, VA treatment records indicate that the Veteran was seen in May and June 2004 for numerous complaints, including left upper extremity ulnar damage. It was noted that the Veteran had longstanding ulnar palsy and decreased grip strength, but no significant atrophy, on examination. A June 2004 VA neurology consult report includes notations that the Veteran was right-handed and had the chronic symptom of intermittent, painful lock up and cramping of all fingers of the left hand, which were pulled into a forcible flexion. The Veteran also reported getting a funny, tingling sensation in the medial two digits, which ran up the dorsomedial forearm up to the elbow. The Veteran reported that the spells lasted for 5 to 10 minutes, during which time he could not do anything with the hand. He denied spread of the symptom above the elbow. Physical examination revealed that the Veteran intermittently held the left hand in flexion, with all flingers curled up in flexion, and no tense contraction noted. There was no definite wasting, but the left hand interossei and grip seemed to be weak, at about 4/5 strength. The Veteran was able to extend his fingers. Extensor digitorum communis was almost full strength, and other muscle groups were full strength. On sensory examination, the Veteran had impaired light touch and pinprick in the left ulnar distribution. Deep tendon reflexes were generally depressed. A diagnosis of chronic intermittent spell of distal left hand flexion posture, with specific cause unclear, was indicated. It was noted that the spells could be a cramping secondary to diabetes mellitus and associated neuropathy, but that a left ulnar neuropathy could not be ruled out. September 2004 and January 2005 follow-up notes indicate that the Veteran reported no change on each visit, and no change in findings or diagnosis was noted. The report of a July 2005 VA examination reflects that the Veteran reported wrist pain and locking, as well as weakness along the left arm. Physical examination revealed wrist drop on the left side of mild severity, weakness of the wrist extensors and wrist extensors of the fingers of 3+/5, and sensory examination to be unremarkable. Deep tendon reflexes were diminished in the left triceps reflex. The Veteran was diagnosed as having posterior interosseous neuropathy. A November 2006 VA treatment note indicates that on examination, the left upper extremity had decreased grip and forearm flexion strength of 4/5, as opposed to the right, due to ulnar palsy. It was again noted that there was decreased grip strength, but no significant atrophy. The report of a July 21, 2007, VA examination reflects the Veteran's report that, at present time, he could not do anything with his left hand. Physical examination revealed a complete paralysis of the ulnar nerve and early claw hand deformity of the left hand. The Veteran could not hold a pencil or handle a coin, paperclip, or button. The Veteran was diagnosed as having severe ulnar neuropathy with complete functional loss of the left hand. Considering the pertinent evidence in light of the governing legal authority, the Board finds that, for the period prior to July 21, 2007, an initial 10 percent but no higher rating for the Veteran's left ulnar neuropathy and palsy is warranted. The Board also finds that a rating higher than 60 percent since July 21, 2007, for the Veteran's disability must be denied. Prior to July 21, 2007, the Veteran's service-connected left ulnar neuropathy and palsy manifested mild, incomplete paralysis of the ulnar nerve. The record during this period reflects symptomatology including intermittent painful lock up, cramping, and forcible flexion of the left hand fingers for 5 to 10 minutes at a time, wrist pain and locking, wrist drop of mild severity, weakness of the wrist extensors and wrist extensors of the fingers of 3+/5, decreased grip and forearm flexion strength of about 4/5, and impaired light touch and pinprick in the left ulnar distribution. While the record during this time period indicates some weakened flexion of the wrist, it does not indicate "griffin claw," or any other deformity, due to flexor contraction of the ring and little fingers, or any significant atrophy. It also reflects the ability to extend and spread the fingers. This symptomatology, taken as a whole, indicates that, prior to July 21, 2007, his left ulnar neuropathy and palsy most closely approximated mild, incomplete paralysis of the ulnar nerve. Specifically as regards the DeLuca factors (identified above), the Board notes that, during the period in question, the Veteran's left upper extremity was affected by some pain and weakness. However, such symptomatology is contemplated in the criteria for mild incomplete paralysis of the ulnar nerve. In this regard, the Board notes that, while there was weakness of the wrist extensors and wrist extensors of the fingers, such weakness was 3+/5, while there was decreased grip and forearm flexion strength, such decreased strength was 4/5, and wrist drop was of "mild" severity. Also, while the Veteran suffered episodes of painful locking up of the fingers, such episodes were intermittent and lasted 5 to 10 minutes. In short, the 10 percent rating adequately compensates the Veteran for his pain and weakness, and these symptoms provide no basis for assignment of any higher rating prior to July 21, 2007. No other DeLuca The Board has also considered the applicability of other diagnostic codes for rating this disability, but finds that no other diagnostic code provides a basis for higher rating. For the period prior to July 21, 2007, the Veteran's service- connected disability of left ulnar neuropathy and palsy is most appropriately rated pursuant to DC 8516, the diagnostic code for rating impairment of the ulnar nerve. The disability has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Further, as regards the matter of a higher rating from July 21, 2007, the Board notes that a rating higher than 60 percent is legally precluded under 38 C.F.R. § 4.68. The Veteran's ulnar neuropathy and palsy of the left minor extremity causes impairment of the left minor extremity at the level of the left hand and wrist, including loss of use of the hand-a level below insertion of the pronator teres. As, under DC 5124, amputation of the minor forearm below insertion of the pronator teres warrants a 60 percent rating, the Veteran's rating for his disability in this case may not exceed 60 percent. For the foregoing reasons, the Board concludes that the record supports assignment of a 10 percent but no higher rating for left ulnar neuropathy and palsy prior to July 21, 2007. The Board has applied the benefit-of-the doubt doctrine in determining that the criteria for an initial 10 percent rating are met, but finds that the preponderance of the evidence is against assignment of any higher rating, and that there is no basis for any further staged rating of the Veteran's disability pursuant to Fenderson. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). With respect to the matter of a rating in excess of 60 percent for left ulnar neuropathy and palsy, from July 21, 2007, this matter must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An initial 10 percent rating for left ulnar neuropathy and palsy, prior to July 21, 2007, is granted, subject to the legal authority governing the payment of compensation benefits. A rating in excess of 60 percent for left ulnar neuropathy and palsy, from July 21, 2007, is denied. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service- connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2009). In a September 2010 written brief presentation, the Veteran's representative raised the matter of his entitlement to a TDIU. Although, in doing so, the representative listed the Veteran's various service-connected disabilities, because the matter of the Veteran's entitlement to a TDIU was raised during the pending of the matters of higher ratings for the Veteran's left ulnar neuropathy and palsy, and that, as of July 21, 2007, the Veteran now meets the minimum percentage requirement for a schedular TDIU, pursuant to 4.16(a)-with his left ulnar neuropathy and palsy as his most significant disability-the Board finds that the claim for a TDIU is essentially a component of the higher rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes, however, that the RO has not adjudicated the matter of the Veteran's entitlement to a TDIU due to service- connected left ulnar neuropathy and palsy. Under these circumstances, after completing the action noted below, the RO should adjudicate the matter of the Veteran's entitlement to a TDIU due to left ulnar neuropathy and palsy, in the first instance, to avoid prejudice to the Veteran. See e.g. Bernard v. Brown, Vet. App. 384 (1993). Prior to adjudicating the TDIU claim, the RO should obtain and associate with the claims file all pertinent evidence. The claims file reflects that there may be outstanding , pertinent VA medical records. In this regard, the record reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Philadelphia. While the claims file currently includes treatment records from the Philadelphia VAMC dated from March 2004 to August 2007, more recent records of pertinent VA treatment might be available. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain any pertinent records of treatment, since August 2007, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the matter remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2009) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should inform the Veteran of the information and evidence necessary to substantiate his claim for a TDIU, specifying what evidence VA will provide and what evidence the Veteran is to provide. The RO should also ensure that its letter to the Veteran meets the requirements Dingess/Hartman-particularly as regards VA's assignment of effective dates-as appropriate. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2009). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for a TDIU due to left ulnar neuropathy and palsy. 2. The RO should obtain from the Phildelphia VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran, since August 2007. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The RO should furnish the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the remaining claim on appeal that is not currently of record. The RO's letter should explain how to establish entitlement to a TDIU, specifying the evidence that will be obtained by VA and the type of evidence that is the Veteran's ultimate responsibility to submit. The RO should ensure that its letter meets the requirements of Dingess/Hartman (cited to above), particularly as regards VA's assignment of effective dates, as appropriate. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. The RO should assist the Veteran in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify theVeteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo examination, if appropriate), the RO should adjudicate the claim for a TDIU due to left ulnar neuropathy and palsy in light of all pertinent evidence and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs