Citation Nr: 1309116 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 07-37 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for Grave's disease prior to August 29, 2007. 2. Entitlement to an evaluation in excess of 30 percent for Grave's disease from August 29, 2007. 3. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from July 1995 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Portland, Oregon. This appeal has been before the Board on three previous occasions. It was remanded for additional development in February 2010, December 2010 and June 2012. The requested development has been completed, and the appeal has been returned to the Board for further review. The Board notes that the Veteran's appeal for a higher evaluation for Grave's disease was originally developed as a single issue in which the Veteran sought an evaluation of greater than 10 percent following the initial grant of service connection. During the course of the appeal, an August 2010 rating decision increased the evaluation to 30 percent, but made the increased evaluation effective only from August 29, 2007. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, this matter remains on appeal in spite of the partial grant. For the sake of convenience, the Board has chosen to characterize it as two separate issues. A claim for an effective date earlier than January 3, 2006, for service connection for Grave's disease was denied by the Board in the February 2010 decision. This issue is not part of the current appeal. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU 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. FINDINGS OF FACT 1. Prior to August 29, 2007, the Veteran's only symptom that was objectively demonstrated was tachycardia. 2. Since August 29, 2007, the Veteran's symptoms that have been objectively demonstrated include tachycardia, weight gain, and increased blood pressure. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for Graves' disease prior to August 29, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.21, 4.119, Code 7900 (2012). 2. The criteria for an evaluation in excess of 30 percent for Graves' disease from August 29, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.20, 4.21, 4.119, Code 7900, 7903 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in February 2006 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claim, but it did not include notice pertaining to the assignment of degrees of disability or effective dates. This appeal, however, arises from disagreement with the initial evaluations following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The Board finds that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Increased Evaluation The Veteran contends that the initial 10 percent evaluation assigned to his service connected Grave's disease did not come close to compensating him for the impairment that it caused. In fact, the Veteran believes he met the requirements for a 100 percent schedular evaluation at the time service connection was first established. Furthermore, the Veteran contends that Grave's disease should have a separate entry in the rating schedular and that it should not be lumped together with hyperthyroidism. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board notes that these issues involve the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection. The Court has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record demonstrates that entitlement to service connection for Grave's disease with a single episode of thyrotoxic hypokalemic periodic paralysis was established in a December 2006 rating decision. A 10 percent evaluation was assigned for this disability under 38 C.F.R. § 4.119, Code 7900, which is the rating code for hyperthyroidism. As noted by the Veteran, the rating schedule does not contain a separate entry for Grave's disease; however, situations such as this have been anticipated by regulation. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran's medical records contain multiple references to hyperthyroidism due to Grave's disease, and as the symptoms described in the rating criteria are closely analogous to those described by the Veteran, the Board agrees that this is the appropriate rating code under which to evaluate the Veteran. Under 38 C.F.R. § 4.119, Code 7900, hyperthyroidism with tachycardia, which may be intermittent, and tremor, or; continuous medication required for control, is rated 10 percent disabling. Hyperthyroidism with tachycardia, tremor, and increased pulse pressure or blood pressure is rated 30 percent disabling. Hyperthyroidism with emotional instability, tachycardia, fatigability, and increased pulse pressure or blood pressure is rated 60 percent disabling. Hyperthyroidism with thyroid enlargement, tachycardia (more than 100 beats per minute), eye involvement, muscular weakness, loss of weight, and sympathetic nervous system, cardiovascular, or gastrointestinal symptoms, is rated 100 percent disabling. 38 C.F.R. § 4.119 . Note (1) to Diagnostic Code 7900 provides that, if disease of the heart is the predominant finding, the hyperthyroidism should be rated as hyperthyroid heart disease (Diagnostic Code 7008) if doing so would result in a higher rating than using the criteria above (Diagnostic Code 7900). Note (2) provides that, if ophthalmopathy is the sole finding, rate as impairment of field vision (Diagnostic Code 6080); diplopia (Diagnostic Code 6090); or impairment of central visual acuity (Diagnostic Codes 6061-6079). The most recent medical records to include his last two VA examinations have found that the Veteran no longer experiences hyperthyroidism but is now has hypothyroidism. Under the rating criteria for hypothyroidism, a 10 percent rating is warranted for fatigability, or; continuous medication required for control. A 30 percent rating is warranted for fatigability, constipation, and mental sluggishness. A 60 percent rating is warranted for muscular weakness, mental disturbance, and weight gain. A 100 percent rating is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119, Diagnostic Code 7903. There are no other rating codes under which the Veteran's disability may be more accurately evaluated. The pertinent medical records include January 2006 VA treatment records that note the Veteran was having problems with his left eye. In March 2006, however, it was determined that the Veteran had a corneal ulcer that was associated with contact lens wear. The Veteran's wife called the VA clinic in May 2006 to inform the Veteran's health care providers that he was experiencing a rapid heartbeat that was as high as 120. The Veteran was afforded a VA examination of his Grave's disease in August 2006. He was noted to have experienced symptoms suggesting hyperthyroidism since 2000, and to have been diagnosed with Grave's disease in 2005. He underwent radioactive ablation in September 2005. The Veteran reported that his current symptoms were gradual weight gain, constipation alternating with diarrhea, and some fatigue. His previous tremor, insomnia, and sweating had completely resolved. On examination, the Veteran weighted 221 pounds, his blood pressure was 133/91, and his pulse was 103. He was pleasant and in no acute distress. The heart was slightly tachycardia with a murmur. The impression was Grave's disease with a single episode of thyrotoxic hypokalemic periodic paralysis in August 2005 and status post ablation in September 2005. The examiner said that the most recent lab work showed that the Veteran was somewhat hyperthyroid. Sleep apnea was a separate issue from the Grave's disease. The Board notes that service connection for sleep apnea has already been established. An August 2006 note includes an impression of Grave's hyperthyroidism status post failed radioactive ablation. A September 2006 endocrinology follow up visit states that the Veteran had recently been seen in the emergency room for tachycardia. He currently reported heat intolerance, a mood that was more easily irritable than usual, and a mild tremor. He was alternating between constipation and diarrhea. An October 2006 eye consultation shows that the Veteran was provided an examination which noted the Veteran's eye complaints. His corneal opacities were attributed to contact lenses wear. At a November 2006 endocrinology examination, the examiner noted that he had first examined the Veteran in August 2005. He was asked to review the Veteran's symptoms. He was noted to have had thyroid enlargement when first seen but this had recently been reduced in size following treatment. The Veteran had tachycardia. Muscle weakness was shown at the original presentation. The Veteran had gained significant weight since the initial treatment. He had sympathetic nervous system symptoms at the original presentation and also when he was hyperthyroid. The Veteran's gastrointestinal symptoms had resolved with treatment, as had his tremors. A true mental examination was not conducted. The Veteran was also provided an eye examination in November 2006. The final diagnoses included Grave's disease without Grave's opthalmopathy bilaterally. An endocrinology note dated August 29, 2007, show that the Veteran had experienced two episodes of tachycardia in the previous week. October 2007 treatment records show that the Veteran had undergone two episodes of ablation therapy. He had experienced four episodes of narrow complex tachycardia consistent with supraventricular tachycardia. The Veteran was examined in a cardiac clinic in November 2007. His personal medical history included sleep apnea; hyperthyroidism and hypothyroidism, and palpitations. He reported that he had episodes of tachycardia that would suddenly begin and end. The Veteran was employed in construction. The impression was paroxysmal supraventricular tachycardia and chronic fatigue that could be worsened by his medications. VA treatment records from February 2008 show an assessment of keratitis in a contact lens wearer, which was likely bacterial. There was no ulcer. A June 2008 mental health note states that the Veteran was feeling more irritable and upset with starting back to school. He was only able to sleep 4 hours a night due to his work and school schedule which made him feel more fatigued and run down. Lay statements were received from the Veteran's family and friends in June 2008. They in particular noted that the Veteran often experienced eye problems as well as fatigue. Monthly records from the mental health clinic dating from August 2008 to October 2008 show that the Veteran was seen for complaints of stress, feeling overwhelmed and contemplating suicide. He stated that he realized that he needed to quit his job before returning to school. He was feeling less stressed and irritable by October 2008. The diagnoses was attention deficit disorder, rule out dysthymia versus major depression. A November 2008 endocrinology note states that the Veteran did not report any vision changes, tremors, heat or cold intolerance, or diarrhea. He did not have any local areas of weakness. There had been no palpitations for at least a month. He did have progressive weight gain. Blood pressure was 123/84 and pulse was 97. His occasional headaches were believed to be sinus related. January 2009 VA treatment records show that the Veteran was followed at the Mental Health unit. He felt good on his current medications and was not as irritable. He continued to go to school. The diagnoses were attention deficit disorder; rule out dysthymia versus major depression. Additional mental health records from 2009 show that the Veteran was considerably less stressed since he was no longer working, but was only going to school. The diagnoses remained attention deficit disorder, rule out dysthymia versus major depression. The Veteran was provided a VA examination in April 2010. The claims folder was not available but his medical records were reviewed by the examiner. The Veteran's general symptoms reportedly included generalized weakness, palpitations, and weight gain. He also reported anxiety, decreased concentration, depression, and emotional instability. On examination, the Veteran's blood pressure was 140/100, and his pulse was 68 beats per minute. His weight had increased 20 percent compared to his baseline. The thyroid was either absent or was not palpable. There was no evidence of congestive heart failure or pulmonary hypertension. The Veteran did not have any gastrointestinal abnormalities or sympathetic nervous system signs. There was no evidence of nerve damage, and muscle strength was 5/5 in all extremities. The summary included a diagnosis of Grave's disease, status post radioiodine ablation. He continued to have paroxysmal supraventricular tachycardia about twice a week, which would usually resolve spontaneously within one to ten minutes. The Veteran's weight had increased from a baseline of 200 to 267. He also had daytime somnolence, facial puffiness and eye lid swelling. The Veteran had decreased concentration and he felt fatigued. He was not working but was a full time student. An eye examination conducted at this time reached a diagnosis of Grave's disease, no specific ocular findings. The Veteran underwent an additional VA examination in January 2011. The claims folder and medical records were reviewed. His reported symptoms included fatigability, cold intolerance, palpitations, and arthralgia. The Veteran said that his muscles felt weak until he got them going in the morning. Neurologic or psychiatric symptoms included anxiety, decreased concentration, depression, emotional instability, forgetfulness, and tremor. On physical examination the Veteran's pulse was 92, and his blood pressure was 144/90. He weighed 246 pounds. The thyroid was either absent or not palpable. There were no indications of cardiac findings, pulmonary findings, or skin findings. There was some mild left lower quadrant tenderness to deep palpation but no other abdominal symptoms. There were no eye abnormalities. Muscle strength was 5/5 in all extremities. The diagnoses included Grave's disease with increased sweating, palpitations, and intermittent muscle weakness. There was no evidence of tachycardia or tremors. The diagnoses also included hypothyroidism associated with Grave's disease, with cold intolerance, arthralgia, thinning hair, weight gain, constipation, mental sluggishness, decreased concentration, depression, and increased blood pressure secondary to weight gain. Private hospital records from February 2012 show that the Veteran was seen for an episode of supraventricular tachycardia. The most recent VA examination was conducted in April 2012. The examiner reviewed the claims folder and discussed the history of the Veteran's disability. The Veteran required continuous medication for control of his thyroid condition. The examiner stated that the Veteran had received optimal treatment for his hyperthyroid condition, and now reported no vision changes, palpitations, tremors, heat or cold intolerance, or diarrhea. He noted no focal areas of weakness. On the examination form, the examiner checked the box to indicate that the Veteran did not currently have any symptoms attributable to a hyperthyroid condition, a hypothyroid condition, or a hyperparathyroid condition. Pulse was 95 and blood pressure was 113/71. The eyes were normal. The impression was Grave's disease status post ablation and hypothyroidism induced by treatments for Grave's disease. The examiner said that it was of note that the Veteran did not have any symptoms or residuals of his hyperthyroid state or Grave's disease at this time, and that his hypothyroidism was controlled with medication. In a July 2012 addendum to the April 2012 examination, the examiner reviewed the claims folder and noted the initial diagnosis of Grave's disease in 2005. He opined that the Veteran would be eligible for a disability rating of 100 percent between 2005 and 2007. Any symptomatology of hyperthyroidism, however, resolved thereafter and he no longer met the criteria for that diagnosis. The residuals effects of hypothyroidism were not active, under good control, and would not affect employability as long as he was compliant with his medications. In reaching this decision, the Board notes that the April 2012 examiner states in the July 2012 addendum to his report that the Veteran was "eligible" for a 100 percent evaluation for the period between 2005 and 2007. The Board does not find that this is an opinion stating that the Veteran meet the criteria for a 100 percent evaluation during this period. The key is the word "eligible." The examiner then proceeds to explain that the Veteran's hyperthyroidism symptoms resolved after 2007. The Board interprets the examiner's statement as indicating that the Veteran's hyperthyroidism symptoms were active from 2005 to 2007, and therefore eligible for the highest rating. It does not follow that the Veteran met the schedular criteria for the highest rating for any or all of this period. As the evidence from January 2006 demonstrates, he did not meet it after that date. Prior to August 29, 2007 The Board finds that the evidence does not support entitlement to an evaluation in excess of 10 percent for the period prior to August 29, 2007. Initially, the Board notes that the Veteran was not diagnosed with hypotention during this period. Therefore, the Board will confine its analysis to that of the rating criteria for hyperthyroidism. 38 C.F.R. § 4.119, Code 7900. Furthermore, the Board acknowledges that the Veteran experienced many symptoms attributable to his Grave's disease and hyperthyroidism prior to the establishment of service connection in January 2006. These symptoms included an episode of thyrotoxic hypokalemic periodic paralysis in August 2005. The November 2006 examiner noted that when he had first seen the Veteran in August 2005 his symptoms had included muscle weakness, sympathetic nervous symptoms, thyroid enlargement and gastrointestinal symptoms. These symptoms, however, were not shown on the November 2006 examination. Although the Veteran reported eye problems, the medical professionals consistently attributed these symptoms to his contact lenses and stated he did not have any eye symptoms due to Grave's disease. The only symptom that was objectively demonstrated on a consistent basis during this period was tachycardia. The Veteran did report some gastrointestinal symptoms in the form of alternating constipation and diarrhea in August 2006 and September 2006, but in the absence of symptoms such thyroid enlargement, muscular weakness, and loss of weight subsequent to January 2006, the gastrointestinal symptoms do not combine with the tachycardia to provide a basis for a higher evaluation. Moreover, the November 2006 examiner reported that the Veteran's gastrointestinal symptoms had resolved. Tachycardia or the need for continuous medication merits continuation of the 10 percent evaluation already in effect for this period. The Board finds that the preponderance of the evidence shows that the Veteran's symptomatology more nearly resembled that required for this 10 percent evaluation at all times prior to August 29, 2007. 38 C.F.R. § 4.119, Code 7900. From August 29, 2007 The Board finds that the schedular criteria for an evaluation in excess of 30 percent have not been met. The Veteran was seen on several occasions for eye complaints, and he has submitted lay statements that contend these complaints are due to his Grave's disease. Although the Veteran and his friends and family are competent to describe the eye symptoms, they are not competent to relate these symptoms to Grave's disease. The Veteran's VA treatment records show that every single eye examiner during this period found that the Veteran did not have any eye symptoms due to his Grave's disease. Also, the Veteran was noted to display some psychological symptoms in 2008; however, not a single examiner attributed these symptoms to Grave's disease or a thyroid problem. Instead, it was attributed to stress from going to school and working full time and the diagnoses were attention deficit disorder, rule out dysthymia versus depression. More recent records show that these symptoms ended after the Veteran left work to go to school on a full time basis. Once again, the Veteran continued to experience tachycardia throughout this period. He also reported having a history of symptoms such as cold intolerance, constipation, mental sluggishness, and fatigue at the April 2010 and January 2011 examinations. It should be noted, however, that except for weight gain and increased blood pressure, these additional symptoms reported by the Veteran were not confirmed on the objective examinations conducted at this time. In fact, the April 2012 examiner noted that the Veteran did not have any current symptoms attributable to hyperthyroidism, and that the Veteran denied vision changes, palpitations, tremors, heat or cold intolerance, or diarrhea. In the absence of objective evidence of symptoms such as emotional instability and fatigability during this period, the preponderance of the evidence shows that the Veteran's symptoms do not more nearly resemble those required for an evaluation in excess of 30 percent under the rating criteria for hyperthyroidism. 38 C.F.R. § 4.119, Code 7900. Similarly, the Veteran does not meet the criteria for an evaluation of greater than 30 percent under the rating criteria for hypothyroidism. Although the Veteran has displayed weight gain, he has not shown objective evidence of muscle weakness or mental disturbance due to his service connected disability. The Veteran's extremities have shown 5/5 muscle strength on every examination. The April 2012 examiner opined that the Veteran's hypothyroidism was well controlled with medication, and that he did not have any current symptoms attributable to hypothyroidism. Therefore, the preponderance of the evidence demonstrates that the criteria for an evaluation in excess of 30 percent under the rating code for hypothyroidism have not been met. 38 C.F.R. § 4.119, Code 7903. Extraschedular Considerations Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The scheduler criteria adequately describe the Veteran's symptoms for his Grave's disease. There has not been any symptomatology attributable to this disability that is not contained in the rating criteria. Moreover, even if the scheduler criteria were to prove inadequate, there is no record of marked interference with employment due to these service connected disabilities. The Veteran was employed on a full time basis, and is a full time student. He is able to perform all activities of daily living. Accordingly, referral for consideration of an extra-schedular rating is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for Graves' disease prior to August 29, 2007, is denied. Entitlement to an evaluation in excess of 30 percent for Graves' disease from August 29, 2007, is denied. REMAND The electronic record shows that the Veteran was denied entitlement to TDIU in a May 2012 decision of the RO. Entitlement to an increased evaluation for the Veteran's service connected sleep apnea and Graves' disease was also denied. The Veteran submitted a notice of disagreement with the May 2012 denial of TDIU that was date stamped as received in December 2012. The Veteran did not mention the denial of increased evaluation for sleep apnea or Graves' disease, although it should be noted that the matter of the proper evaluation for Graves' disease was already on appeal to the Board. Although the Veteran was provided with a letter acknowledging receipt of the notice of disagreement in January 2013, there is no indication in the record that either a TDIU has been granted or that a statement of the case has been issued. In addition, he has not been notified of the necessity of submitting a substantive appeal for this issue. Therefore, this issue must be remanded to the RO for the issuance of a statement of the case. 38 U.S.C.A. § 7105; see Buckley v. West, 12 Vet. App. 76 (1998); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The RO should again review the record. If the claim for TDIU remains denied, the Veteran and representative should be furnished a statement of the case for the issue of entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) and given the opportunity to respond thereto. They should also be notified of the necessity of submitting a timely substantive appeal in order to complete an appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2012). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs