Citation Nr: 1115212 Decision Date: 04/19/11 Archive Date: 05/04/11 DOCKET NO. 08-07 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left lower extremity thrombophlebitis, prior to August 31, 2009. 2. Entitlement to a rating in excess of 20 percent for left lower extremity thrombophlebitis, since August 31, 2009. 3. Entitlement to service connection for right lower extremity thrombophlebitis. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to August 1968. This issue of left lower extremity thrombophlebitis comes before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating action in which the Appeals Management Center (AMC) in Washington DC granted service connection for left lower extremity thrombophlebitis and awarded a 10% evaluation for this disorder, effective from April 24, 1998. During the current appeal, and specifically by a February 2010 rating action, the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado awarded an increased evaluation for the Veteran's service-connected left lower extremity thrombophlebitis, effective from August 31, 2009. The issue of right lower extremity thrombophlebitis comes before the BVA from a July 1998 decision of the VA RO in Denver, Colorado. The Veteran testified before the undersigned in April 2010. A transcript of the hearing is of record. The Board notes that the Veteran requested a BVA hearing with respect to his service connection claim for right lower extremity thrombophlebitis in a March 2008 statement. However, at his April 2010 BVA hearing, testimony was not taken with respect to this issue. The Board finds there is no prejudice in proceeding with consideration of this claim, despite the fact that testimony has not been provided regarding this issue. Specifically, when asked to confirm which issues were on appeal, the Veteran's service representative agreed on the record that the issues on appeal included, entitlement to an evaluation in excess of 10 percent for his left leg prior to August 31, 2009 and an evaluation in excess of 20 percent since August 31, 2009. See BVA Hearing Transcript (T.) at 3. The issues of entitlement to a rating in excess of 20 percent for left lower extremity thrombophlebitis, since August 31, 2009, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to August 31, 2009, the Veteran's left lower extremity thrombophlebitis has been manifested by persistent edema incompletely relieved by elevation of the extremity; stasis pigmentation, eczema, persistent ulceration or massive board-like edema have not been demonstrated. 2. There is no credible or competent evidence that the Veteran has a current diagnosis of right lower extremity thrombophlebitis at any time during the appeals process. CONCLUSIONS OF LAW 1. Prior to August 31, 2009, the criteria for a rating of 20 percent rating, but no higher, for left lower extremity thrombophlebitis had been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (DC) 7121 (2010). 2. Right lower extremity thrombophlebitis was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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). 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. The Veteran's increased rating claim for left lower extremity thrombophlebitis, prior to August 31, 2009, 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 VA treatment records and Social Security Administration (SSA) records. Next the Veteran submitted private treatment records. Moreover, the Veteran was afforded a VA examination in September 2006. 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. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left lower extremity thrombophlebitis since the September 2006 VA examination, and prior to August 31, 2009. The Board finds the above VA examination to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability, prior to August 31, 2009, under the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to this issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. In April 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the April 2010 BVA hearing, the undersigned enumerated the issues on appeal. See T. at 3. Also, information was solicited regarding the severity of his left lower extremity thrombophlebitis symptoms (8-14), and whether there were any outstanding medical records available that would support his claim (14). Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. With respect to his claim for right lower extremity thrombophlebitis the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current § 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of a letters sent to the Veteran in March 2002 and August 2006 that fully addressed all four notice elements. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Moreover, in the same August 2006 letter, the RO provided the Veteran with Dingess notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, he was "provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Furthermore, the service connection claim was readjudicated in February 2007. Consequently, the Board finds that the duty to notify has been satisfied as to this claim. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA treatment records and SSA records. Additionally, the Veteran submitted private treatment records. A September 2006 VA examination was provided. 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). In the instant case, the Board finds that the VA examination obtained is adequate. In this regard, the VA examiner considered all of the pertinent evidence of record and could not find a disease process or disability upon which to base a diagnosis with respect to the Veteran's right leg. Moreover, the Veteran specifically denied experiencing right lower extremity thrombophlebitis or other complaints regarding the right lower extremity while on active duty or within the first year thereafter at that time. Accordingly, the VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). At the outset, the Board notes that the Veteran is appealing the initial disability rating assigned for his left lower extremity thrombophlebitis, prior to August 31, 2009. As such, the claim requires consideration of the entire time period involved, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Prior to August 31, 2009, the Veteran is in receipt of a 10 percent disability rating for his left lower extremity thrombophlebitis. Based on a review of the record, the Board finds that a 20 percent rating for left lower extremity thrombophlebitis is warranted prior to August 31, 2009. Pursuant to Diagnostic Code 7121, a noncompensable rating is warranted where there are asymptomatic palpable or visible varicose veins. A 10 percent rating is warranted where there is intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent rating is warranted where there is persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted where there is persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is warranted where there is massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7121 (2010). The Board finds that the evidence of record, prior to August 31, 2009, demonstrates that the Veteran has had "persistent" edema, incompletely relieved by elevation of the extremity, thus warranting at least a 20 percent disability rating. At a September 2006 VA examination, the Veteran reported that since his discharge from military service he had pain and swelling in the left gastrocnemius muscle group, the left popliteal fossa, and to a lesser extent apparently in the left knee. The Veteran reported swelling, tenderness, stiffness, weakness, and tightness in the left lower extremity. Physical examination reflected exquisite tenderness from the mid portion of the left gastrocnemius muscle group and increases in great intensity and severity as one moves superiorly. The VA examiner indicated that there was no board like edema, redness, increase in local heat, drainage, skin breakdown, stasis pigmentation, eczema, or persistent ulceration in the left lower extremity. In his May 2007 notice of disagreement, the Veteran indicated that his left leg was constantly swollen and purple in color. He stated that it swells worse when he over exerts himself and leaves him incapacitated for period of time. He reflected that compression hosiery did not help his condition, but rather made it worse. A statement submitted in May 2007, from his private treating practitioner, noted reports by the Veteran that his veins were painful especially while standing and working, as well as when he sits down in a chair. He denied any ulcerations. The Veteran reported a bruise on the posterior aspect of his left calf. He reported that elevating his legs every night helped relieve only some of the discomfort. Upon physical examination, there was no evidence of stasis dermatitis, ulcerations or hemosiderin staining. Although pedal or lower leg edema was not noted, the left calf was measured at 39.0 cm, as compared to his right calf, which was measured at 36.0 cm. He was diagnosed with severe varicose veins. The Veteran testified at his April 2010 BVA hearing that his leg was always in pain. See T. at 12. Moreover, he testified that he had swelling in his leg since 1968. See T. at 13. A June 2009 examination, completed in conjunction with his application for SSA benefits, reflected that the Veteran had moderate swelling of his left calf. This evidence reflects that the Veteran suffered from persistent edema, prior to August 31, 2009. The Veteran indicated at a May 2007 private treatment visit that elevating his legs relieved some discomfort, but not all. This is most consistent with a 20 percent disability evaluation. However, the evidence does not reflect stasis pigmentation, eczema, subcutaneous induration, ulceration, or massive board-like edema to warrant a rating in excess of 20 percent. Accordingly, a 20 percent evaluation, but no more, is warranted for the period prior to August 31, 2009. The Board has also considered the statements of the Veteran that his disability is worse. 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"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder-according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's left lower extremity thrombophlebitis, prior to August 31, 2009-has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Based on the evidence, the Board finds that an evaluation in excess of 20 percent for his left lower extremity thrombophlebitis, prior to August 31, 2009, is not warranted. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court recently clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's left lower extremity thrombophlebitis, prior to August 31, 2009 was applied to the applicable rating criteria, general counsel opinions, and case law. Although the applicable criteria provide for higher ratings, the Board fully explained why a rating in excess of 20 percent is not warranted. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's left lower extremity thrombophlebitis disability picture, prior to August 31, 2009, includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the Veteran's service treatment records indicates that he was treated for right lower extremity thrombophlebitis in June 1968. No further complaints regarding his right leg were noted. The Veteran was medically separated due to recurrent thrombophlebitis in his left leg. More importantly, a review of the post-service evidence reveals that the Veteran has not been diagnosed as having right lower extremity thrombophlebitis. For example, at the Veteran's September 2006 VA examination he denied ever having trouble with his right leg. The VA examiner determined that there was insufficient evidence to warrant a diagnosis of any chronic vascular disorder or residual thereof the right leg. As set forth above, one of the elements necessary for service connection is medical evidence of a current disability. The Court has held that there can be no valid claim without proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The existence of a current disability is the cornerstone of a claim for VA disability benefits. See Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, however, there is no evidence of a diagnosis of right lower extremity thrombophlebitis during the period under appellate review, nor does the Veteran contend that a diagnosis exists. In the absence of competent evidence showing that the Veteran presently has a diagnosis of right lower extremity thrombophlebitis, there is no basis for the granting of service connection, for this condition. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right lower extremity thrombophlebitis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107. ORDER A 20 percent rating, but no more, for left lower extremity thrombophlebitis, prior to August 31, 2009, is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for right lower extremity thrombophlebitis is denied. REMAND As indicated previously, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to assist also includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. Left lower extremity thrombophlebitis, since August 31, 2009- The Board has reviewed a November 2009 VA medical examination undertaken to assess the current severity of the Veteran's left lower extremity thrombophlebitis. However, the Board finds that the medical examination does not contain sufficient detail to decide the claim on appeal. The Court has held that where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). The VA examination does not specifically address whether the Veteran's left lower extremity thrombophlebitis exhibits stasis pigmentation, eczema, ulceration (persistent or intermittent), subcutaneous induration, or massive board-like edema. As these are characteristics necessary to appropriately rate the Veteran's service-connected disorder, information regarding them is crucial. Private treatment records since August 31, 2009 also do not provide this necessary information. Based on this evidence, a new VA examination should be obtained. TDIU- In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. While the Board recognizes that the Veteran has reported various medical causes for his unemployment, separate from his service-connected left lower extremity thrombophlebitis, in his application for SSA benefits, he indicated in a May 2009 SSA statement that his left leg had affected his ability to work and that he had stopped working. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice. However, the Veteran has not received notice pursuant to the VCAA as it pertains to his claim for TDIU. If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may not be cured by the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board therefore must remand the case to the agency of original jurisdiction because the record does not show that the Veteran was provided adequate notice under the VCAA and the Board is without authority to do so. Accordingly, the case is REMANDED for the following actions: 1. Review the claims file and ensure that all notification and development action, to include a VA examination if deemed necessary, required by the VCAA is completed. In particular, the RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for TDIU. 2. Schedule the Veteran for an examination to determine the current nature and extent of his left lower extremity thrombophlebitis disability. The claims folder must be made available to the examiner in conjunction with the examination. All pertinent pathology found on examination should be noted in the report of the evaluation. Any testing deemed necessary should be performed. The examiner should comment on whether there is: (a) Persistent edema and stasis pigmentation or eczema, with our without intermittent ulceration; or (b) Persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; or (c) Massive board-like edema with constant pain at rest. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs