Citation Nr: 1136813 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 06-28 067A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to disability evaluation in excess of 20 percent for a chronic back strain with degenerative joint disease (DJD) of the lumbar spine with associated sacroiliitis. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from February 1975 to February1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in Portland, Oregon, increasing the Veteran's disability evaluation for his low back disability to 20 percent. This matter was previously remanded by the Board in May 2009 and July 2010 for further evidentiary development. The Veteran was afforded a hearing before the undersigned Veterans Law Judge at the RO in Portland, Oregon in March 2009. A written transcript of this hearing has been prepared and incorporated into the evidence of record. As outlined in all of the Board's prior remands, the Veteran has raised a claim of entitlement to an increased disability evaluation for irritable bowel syndrome (IBS), to include a claim of clear and unmistakable error (CUE) regarding the assignment of a 10 percent disability evaluation for this disability. However, this matter has still not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board still does not have jurisdiction over this claim and it is again REFERRED to the AOJ for appropriate action. The issue of entitlement to TDIU benefits is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's low back disability is manifested by pain, flexion limited to no less than 45 degrees, and occupational impairment; it is not manifested by flexion limited to 30 degrees or less, ankylosis, incapacitating episodes, or neurological manifestations. CONCLUSION OF LAW The criteria for establishing a disability evaluation in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-43 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans 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 and 3.326(a) (2010). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). 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). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Letters sent to the Veteran in August 2004, November 2005 and May 2008 provided him with the necessary notice. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in January 2005, July 2006 and November 2009, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Additionally, the Board finds there has been substantial compliance with its July 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) obtained additional records relevant to the Veteran's claim. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the 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 will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2010). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2010). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of 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. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Facts and Analysis For historical purposes, the Veteran was originally granted service connection for a low back disability in an August 1979 rating decision. A 10 percent disability evaluation was assigned, effective as of February 18, 1978. In May 2004, VA received a claim from the Veteran seeking an increased disability evaluation. In a March 2005 rating decision, the RO increased the Veteran's disability evaluation to 20 percent under Diagnostic Code 5237, effective as of May 7, 2004. VA received a timely notice of disagreement to this assigned rating in October 2005, and in April 2007, the Veteran appealed this rating to the Board. Upon filing his claim for an increased disability evaluation, the Veteran was afforded a VA examination of the spine in January 2005. The Veteran reported chronic low back pain that was primarily addressed by regular chiropractic visits. He also reported occasional numbness into the lower extremities. He denied bladder or bowel impairment or erectile dysfunction. The Veteran indicated that he did use a cane when he was suffering from back spasms. The Veteran also described flare-ups occurring no less than three times per month. During these flare-ups, the Veteran stated that he would experience radicular symptoms, increased pain and an impaired ability to stand upright and ambulate. The Veteran indicated that he had been admitted to the hospital on three occasions for traction treatments for spasms of the low back. However, the Veteran denied any incapacitating episodes in the past 12 months. Examination revealed normal vertical alignment. However, there was a somewhat exaggerated lordotic curvature that was believed to most likely be due to the Veteran's obesity. There was no particular pain or tenderness upon examination. Range of motion testing revealed forward flexion to 73 degrees (with increasing pain beginning at 33 degrees), extension from 0 degrees to 24 degrees, left lateral flexion to 23 degrees with pain at 15 degrees, right lateral flexion to 30 degrees with pain at 26 degrees, left lateral rotation to 26 degrees and right lateral rotation to 30 degrees. Neurological evaluation revealed deep tendon reflexes to be suppressed. However, sensory function and muscle strength were not impaired in either lower extremity. The examiner diagnosed the Veteran with degenerative arthritic changes, most marked at the L3-4 vertebra, with a chronic musculoskeletal strain of the right supraspinatus muscle. The record also contains a letter dated January 2006 from a private physician with the initials J.R.H. According to Dr. H, the Veteran suffered from low back problems with severe spasms and difficulty in standing upright. Dr. H also noted that on three different occasions in 1984 and 1985, the Veteran's back was so inflamed that he was sent to the hospital and placed in traction. The Veteran was afforded an additional VA examination of the spine in July 2006. The examiner noted that the Veteran worked as an automotive mechanic and that he had been working between 12 and 15 hours per week over the last ten months. It was noted that he had no official time lost because of his service-connected medical problems but that he had days of increased pain in which he needed help with lifting objects over 10 pounds. The Veteran reported that he could walk three to four blocks due to back pain and right foot pain. He also indicated that he could only stand for five to ten minutes due to back pain, climb one to two flights of stairs, and life a maximum of 15 to 20 pounds due to low back and right shoulder pain. The Veteran denied any radiculopathy into his legs or bowel or bladder impairment. Range of motion testing revealed forward flexion to 50 degrees and extension to 20 degrees. The examiner diagnosed the Veteran with a chronic back strain with degenerative joint disease of the lumbar spine. There was no evidence of neurological compromise at this time. Dr. H submitted an additional letter dated February 2007. According to Dr. H, the Veteran would often arrive at his office doubled over and unable to stand upright due to severe lumbar spasms. Dr. H also opined that the Veteran was unable to hold a normal job due to his back disability and that it limited his ability to enjoy life. According to a VA outpatient treatment record from October 2007, the Veteran had an injection in September that eliminated his pain. However, the Veteran reported that approximately two weeks earlier his back pain returned with such severity that he was having trouble moving it. The Veteran indicated that his back pain was presently better and that he was able to move his back. An August 2008 VA treatment record notes that the Veteran was suffering from an increased amount of discomfort with left leg radiculopathy to the dorsum of the left foot. The Veteran denied any history of urinary or fecal incontinence. The examiner diagnosed the Veteran with degenerative disc disease of the L3-4 and L4-5 vertebra. The record also contains a magnetic resonance image (MRI) from June 2008. The MRI revealed L3-4 degenerative disc and facet disease with a right lateral disc bulge suspected to be compromising the exiting right L3 nerve. It also revealed degenerative disc disease and facet arthritis at the L4-5 and L2-3 vertebra with no discernible neural compromise. Subsequent treatment records reflect that the Veteran continued to receive treatment from an anesthesiologist for his back pain. A January 2009 record notes that the Veteran underwent a bilateral lumbar facet joint injection. This procedure successfully reduced the Veteran's pain from what was described as a nine out of ten to a five out of ten. The Veteran was afforded an additional VA examination of the lumbar spine in November 2009. The Veteran reported that he had been using a cane since a motorcycle accident in 1979 and that he could walk about one-fourth of a mile without his cane. The Veteran also reported that he could not lift anything heavier than 12 pounds. The Veteran described a gradual increase in his low back pain with no new injuries. He noted that he went to a chiropractor on a regular basis and that he also saw an acupuncturist. The Veteran reported that he hired a helper to aid him with lifting and doing heavy work for twenty to thirty hours per week. The Veteran reported that he was working twenty hours per week in his shop until this past summer when he went down to three to five hours per week because of his back pain. However, he indicated that he had been feeling better over the last several weeks and that he was scheduled to start doing new jobs the following week. The Veteran further noted that his shop was equipped with hoists and adjustable feet so he did not have to do any of the lifting or pulling on his own. The Veteran reported increased back pain with heavy lifting, bending or twisting and that he got relief when he saw a chiropractor, massage therapist, or lied down on his back with his feet elevated for 20 to 45 minutes one to three times per day. The Veteran denied any weakness, fatigue, lack of endurance or stiffness. It was also noted that he had no incapacitating episodes requiring bed rest over the last 12 months. He also reported pain radiating down his lower extremities since his motorcycle accident but he denied numbness, paresthesias, and bowel or bladder dysfunction. Range of motion testing revealed flexion to 45 degrees, extension to 25 degrees, bilateral lateral flexion to 25 degrees and bilateral lateral rotation to 30 degrees. It was noted that the Veteran had pain throughout his range of motion but that he did not have additional limitations after repetitive use. There was no evidence of spasm, focal weakness or localized tenderness. There was also no abnormal posture, abnormal movement or ankylosis. Reflexes were slightly impaired in the knees and ankles but there were no motor or sensory impairments. The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 20 percent for his service-connected low back disability at any time during the pendency of his claim. The Veteran is currently rated under Diagnostic Code 5237, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under this formula, a higher disability evaluation of 40 percent is warranted when there is evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. According to the January 2005 VA examination, the Veteran had forward flexion of the thoracolumbar spine to 73 degrees (with increasing pain beginning at 33 degrees). The Veteran was also found to have forward flexion to 50 degrees upon examination in July 2006 and forward flexion to 45 degrees upon examination in November 2009. Therefore, the evidence demonstrates that the Veteran has maintained forward flexion of the thoracolumbar spine in excess of 30 degrees, and, that he does not suffer from ankylosis. For VA compensation purposes, fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis. Id at Note (5). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2010). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2010). According to the January 2005 VA examiner, the Veteran experienced increased pain starting at 33 degrees. The November 2009 VA examiner explained that the Veteran in fact felt pain throughout his entire range of motion. However, this did not result in additional limitation and there was no evidence of weakness, fatigue, lack of endurance, or incoordination. Therefore, while the Veteran experiences pain while moving the spine, this does not result in further functional limitation. As explained by the United States Court of Appeals for Veterans Claims (Court) in August 2011, pain alone does not constitute functional loss under VA regulations. Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). The Board has also considered whether a higher disability evaluation may be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Id. A higher disability evaluation of 40 percent is warranted under this code when there is evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id at Note 1. However, the VA examinations of record have consistently noted that the Veteran did not suffer from any incapacitating episodes in the previous 12 months. The record contains no other evidence or allegation on the part of the Veteran to suggest that he has in fact suffered from any incapacitating episodes, as defined in 38 C.F.R. § 4.71a. As such, a higher disability evaluation is not warranted based on incapacitating episodes. Note (1) to 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. However, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from any neurological impairment as a result of his service-connected low back disability. The Veteran has routinely denied suffering from any bowel or bladder impairment. Also, according to the January 2005 VA examination report, sensory and muscle function were not impaired. There was suppression of the deep tendon reflexes. However, upon examination in July 2006, the Veteran denied any radiculopathy into his legs and the examiner concluded that there was no evidence of neurological compromise. While the June 2008 MRI revealed encroachment of the exiting right L3 nerve, the Veteran reported upon examination in November 2009 that his lower extremity symptoms did not begin until after his post-service motorcycle accident of 1979. There is no other evidence of record relating any neurological manifestations to the Veteran's service-connected disability. As such, a separate disability evaluation for neurological impairment is not warranted. In reaching the above decision, the Board has considered the Veteran's statements in which he has argued for a higher disability evaluation. During his March 2009 hearing, the Veteran testified to limited motion, pain, and occupational impairment. However, these symptoms have already been considered by the assigned disability evaluation of 20 percent. The Veteran did not offer any testimony to demonstrate entitlement to a higher disability evaluation of 40 percent. The Veteran also testified to numbness during this hearing. However, he denied numbness during his November 2009 medical examination. As such, this testimony does not demonstrate entitlement to a higher disability evaluation. The Board has also considered the lay statements of record submitted in support of the Veteran's claim. According to a letter dated February 2007 from an individual who reportedly lived with the Veteran for a period of time, the Veteran was frequently incapacitated by back spasms. He would be forced to lie flat on his back for two to three days after receiving chiropractic treatment. However, while the Board is certainly sympathetic to the symptomatology suffered by the Veteran, these statements fail to demonstrate that the Veteran is entitled to the next-higher disability evaluation of 40 percent. These records fail to demonstrate that the Veteran is limited in flexion to 30 degrees or less or that he suffers from incapacitating episodes as defined at 38 C.F.R. § 4.71a. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's symptoms associated with his service-connected low back disability include limited motion and pain. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. This code allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's low back disability alone results in marked interference with employment above and beyond that considered by the assigned disability evaluations or that there have been frequent periods of hospitalization. The Board recognizes that the Veteran does indeed suffer occupational impairment . However, a degree of occupational impairment is inherent in his assigned disability evaluation. Also, according to the November 2009 VA examination, the Veteran was preparing to take on new obligations at work. Finally, while the Veteran's chiropractor indicated in November 2007 that the Veteran was unable to perform a normal job, the evidence demonstrates that the Veteran has at least maintained a degree of employability throughout the pendency of this claim and that his business has been of sufficient success to allow him to hire an assistant for 30 hours per week. As such, this statement does not demonstrate occupational impairment above and beyond that contemplated by a 20 percent disability evaluation. The Board also notes that the Veteran's chiropractor has indicated that the Veteran was hospitalized on three occasions in the 1980s. However, this is of no relevance in determining the proper disability evaluation to be assigned since receipt of the Veteran's claim in May 2004. There is no evidence of hospitalization during the period of the Veteran's current claim. Therefore, referral for consideration of an extraschedular rating is not warranted. Furthermore, as will be discussed in the remand section below, a claim of entitlement to TDIU benefits is currently pending before the Agency of Original Jurisdiction. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, as outlined above, the Veteran's low back disability has not been more than 20 percent disabling at any time during the pendency of this claim. As such, staged ratings are not warranted. As a final matter, the Board notes that the Veteran reported in February 2010 that his November 2009 VA examination was inadequate because the examiner merely asked him a series of "yes or no" questions. However, upon review of the November 2009 VA examination report, the Board does not find the examination to be inadequate. The examiner discussed a multitude of facts in the examination report and provided extended histories of the Veteran's condition. In addition, the Veteran's complaints were recorded in significant detail. As such, it is evident that the Veteran's examination consisted of more than a series of yes or no questions. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability evaluation in excess of 20 percent for a low back disability must be denied. ORDER Entitlement to a disability evaluation in excess of 20 percent for a chronic back strain with DJD of the lumbar spine with associated sacroiliitis is denied. REMAND In March 2007, the RO denied the Veteran's claim of entitlement to TDIU benefits. In April 2007, the Veteran submitted a notice of disagreement in which he clearly indicated that he disagreed with the finding that he was not unemployable. The RO subsequently issued a statement of the case in June 2008. However, the statement of the case did not address the issue of entitlement to TDIU benefits and no subsequent statement of the case has been issued addressing this matter. Therefore, the Board finds that a remand for this action is necessary. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26, 19.29, 19.30; Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO should issue the Veteran and his representative a statement of the case on the issue of entitlement to TDIU benefits. The Veteran should be given the opportunity to thereafter perfect an appeal on this issue by filing a timely substantive appeal. The claim will thereafter be subject to appellate review only if the appeal has been properly perfected. 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 Supp. 2010). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs