Citation Nr: 1311243 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 09-11 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the Veteran's service-connected fracture residuals of the third and fourth metatarsals of the left foot with degenerative joint disease. 2. Entitlement to a rating in excess of 30 percent for the Veteran's service-connected fracture residuals of the second, third, and fourth metatarsals of the right foot, status post open reduction internal fixation (ORIF) of the third and fourth metatarsals, with degenerative joint disease. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected left and right foot disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from June 1953 to May 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed that decision and the case was referred to the Board for appellate review. In a November 2010 decision the Board granted entitlement to 30 percent ratings for both the Veteran's right and left foot disabilities, but denied entitlement to ratings greater than 30 percent. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011 the Court issued an order granting the parties' Joint Motion for Remand (Joint Motion) to vacate the portion of the Board's decision denying entitlement to ratings in excess of 30 percent, and remanded the case back to the Board for compliance with the Joint Motion. In October 2011 and September 2012 the Board remanded the claims to the RO/AMC for further development. The claims have been returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note 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). As explained below, the Board has determined that it has jurisdiction over the issue of entitlement to a TDIU based on unemployability due to the Veteran's left and right foot disabilities. As discussed below, the evidence currently establishes the Veteran is not entitled to a higher disability rating for his left and right foot disabilities. The Board has proceeded with a decision with regard to those issues and has addressed the issue of entitlement to a TDIU in the REMAND following the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran's service-connected fracture residuals of the third and fourth metatarsals of the left foot with degenerative joint disease (DJD) has not resulted in loss of use of the foot. 2. The Veteran's service-connected fracture residuals of the second, third, and fourth metatarsals of the right foot, status post ORIF of the third and fourth metatarsals, with DJD has not resulted in loss of use of the foot. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for fracture residuals of the third and fourth metatarsals of the left foot with degenerative joint disease, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5284 (2012). 2. The criteria for a disability rating in excess of 30 percent for fracture residuals of the second, third, and fourth metatarsals of the right foot, status post open reduction internal fixation (ORIF) of the third and fourth metatarsals, with degenerative joint disease, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that 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. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran's left and right foot disabilities with DJD have each been assigned a 30 percent disability rating under Diagnostic Code 5284. Under Diagnostic Code 5284, a 30 percent disability rating is warranted for a severe foot injury; and a maximum 40 percent disability rating is warranted when there is actual loss of the foot. 38 C.F.R. § 4.71a. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis for example, (a) extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches or more, will constitute loss of use of the foot involved; (b) complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. Complete paralysis of the external popliteal nerve and consequent foot drop accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of the nerve will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350, 4.63 (2012). The Board notes that there are additional diagnostic codes for the evaluation of foot disabilities, Diagnostic Codes 5277 - 5283. However, the medical evidence does not indicate the Veteran's service-connected disabilities include any of the foot disorders described under Diagnostic Codes 5277 - 5283. For these reasons, the Board finds that Diagnostic Code 5284 is the most appropriate Diagnostic Code for rating the Veteran's left and right foot disabilities, and will proceed accordingly. II. Analysis A review of the record shows that, in addition to the Veteran's service-connected left and right foot disabilities currently on appeal, the Veteran has been diagnosed with diabetic neuropathy of his lower extremities bilaterally, secondary to non-service-connected type II diabetes mellitus. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and that which is attributed to a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). As will be discussed in greater detail below, in the June 2010 VA examination report, the VA examiner specifically addressed the over-lapping symptomatology caused by the Veteran's non-service-connected and service-connected bilateral foot disabilities. The Veteran was afforded a VA examination in June 2008. At that time he reported pain, stiffness, fatigability, and lack of endurance bilaterally in his feet and legs that occurred while standing and walking. He also reported pain bilaterally while at rest. He endorsed flare-ups that occurred at least weekly, and lasted for less than one day. He reported that walking precipitated the flare-ups and that rest and pain medication relieved the flare-ups. He reported that the flare-ups caused his ambulation to be limited. The Veteran reported that he was unable to stand for more than a few minutes and was unable to walk more than a few yards. He reported that he required the use of a cane, but that the cane was for his diabetic neuropathy. On physical examination, pain was found bilaterally with any motion of the ankles. And there was objective evidence of tenderness bilaterally over all the metatarsals. There was no evidence of swelling, instability, weakness, or abnormal weight bearing, bilaterally. The Veteran's gait was noted to be antalgic and he was noted to require the use of a cane. On X-ray bilateral osteopenia and small vessel disease was noted. The examiner noted that the Veteran retired in 1998 as he was eligible for retirement at that time. The examiner diagnosed DJD of the feet, bilaterally, and noted that his foot disabilities caused moderate to severe effects on the Veteran's daily activities. The Veteran was afforded another VA examination in June 2010. At that time, he reported pain, swelling, redness, and stiffness bilaterally that occurred while walking, standing, and at rest. He reported additional symptoms of fatigability, weakness, and lack of endurance bilaterally that occurred while standing and walking. He reported the symptoms affected his feet and toes bilaterally. He endorsed flare-ups that occurred at least weekly and lasted 1 to 2 days. He reported that anything can cause a flare-up, including weather changes, and that flare-ups caused severe limitation of motion or other functional impairment. He reported that he was unable to stand for more than a few moments, that he was not able to walk at all, and that he required a wheelchair. The Veteran was noted to have diabetic neuropathy. On physical examination, there was evidence of painful motion, swelling, tenderness, and weakness bilaterally. There was no evidence of instability or abnormal weightbearing bilaterally. Evidence of pain included pain with all motion of the feet and toes bilaterally. Evidence of swelling was noted in the left foot to be 2+ edema of the ankles and feet. Evidence of tenderness was noted over the metatarsals bilaterally. Evidence of weakness included the inability to bear weight bilaterally and weakness with toe raises in the left foot only. On X-ray of the right foot, generalized osteopenia and mild degenerative changes involving the interphalangeal and metatarsophalangeal joints was noted. X-ray of the left foot revealed generalized osteopenia, varying degrees of degenerative changes involving the skeletal structure, and a small plantar calcaneal spur. The examiner noted that the Veteran retired 10 years earlier as he was eligible for retirement at that time and he sold his dairy. The examiner diagnosed DJD bilaterally, which caused severe to moderate effects on his activities of daily living. The examiner noted that the Veteran required the assistance of his spouse for all activities of daily living and he was unable to do any recreation. The examiner also specifically noted that the symptoms of pain and weakness to the toes and feet bilaterally were caused by the DJD and the Veteran's service-connected left and right foot disabilities and the symptoms of burning, weakness of the lower extremities, and numbness were caused by the Veteran's non-service-connected diabetic neuropathy. The Veteran was afforded another VA examination in November 2011. At that time, the Veteran was found to have pain in his bilateral lower extremities. He reported the pain was moderate. The Veteran reported that he had been in a wheelchair since 2008, and that he required the use of the wheelchair constantly. Physical examination revealed bilateral foot drop, evidence of bilateral weak foot, and atrophy of the calf muscles bilaterally. Diagnostic testing showed degenerative and traumatic arthritis in multiple joints, bilaterally. It was noted that the Veteran had not been working since 2008, as he was unable to ambulate. In October 2012, the Veteran's claims file was reviewed by a VA examiner for the purpose of providing a medical opinion as to whether the Veteran's left and right foot disabilities were of a severe enough nature, that his balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. After a thorough review of the claims file, the VA examiner opined that due to the Veteran's advanced age and various medical conditions, to include bilateral weakness in his lower extremities, he would not be able to ambulate well at all with an amputation and prosthesis. Also of record are VA treatment records that show the Veteran receives relatively regular care at the VA Medical Center for his various medical conditions. The VA treatment records document some complaints of bilateral lower extremity weakness and frequently note the diagnoses associated with his service-connected left and right foot disabilities, including bilateral weak foot, bilateral foot drop, and atrophy of the calf muscles. Also of record are several lay statements from the Veteran, submitted in support of his claim, including his September 2008 Notice of Disagreement (NOD). In his NOD the Veteran stated that his left and right foot disabilities caused pain in his feet, bilaterally all the time and would get worse when he stood or walked for any period of time and that he required assistance to go up or down stairs. He also stated that he was no longer able to drive a car as he could not push on the gas or brake pedals and that his left and right foot disabilities had caused him to quit his job as a farmer because he could no longer perform the walking needed to care for his animals and crops. The Board finds that the Veteran is not entitled to disability ratings in excess of 30 percent for his left and his right foot disabilities. In this regard, there is no persuasive evidence indicating that the Veteran has loss the use of one, or both, of his feet as a result of his service-connected disabilities. While the Veteran has reported that he has required the constant use of a wheelchair since 2008, the Board notes that at his June 2008 VA examination, the Veteran reported that he was able to walk a few yards. Additionally, at his June 2010 VA examination, the Veteran reported that he was still able to stand up. Therefore, the Board finds that a higher disability rating, of 40 percent for each foot under Diagnostic Code 5284 is not warranted at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5284. The Board notes that the Veteran's reported pain, weakness, and fatigability on motion was accounted for by the June 2008 and June 2010 VA examiners. There is no other evidence showing that the Veteran has more limitation of motion than that found at his VA examinations. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 30 percent for the functional impairment of the Veteran's left and right foot disabilities. Consideration has been given to assigning the Veteran a disability evaluation based on loss of use of one foot under Diagnostic Code 5167, or loss of use of both feet under Diagnostic Code 5110. However, as noted above, while the Veteran does require the use of a wheelchair, there is no indication that this is solely the result of his service-connected left and right foot disabilities. In fact, at his June 2008 VA examination, while the Veteran did not yet require the use of a wheelchair, he did require the use of a cane, and he reported that the cane was necessary as a result of his non-service-connected diabetic neuropathy. Also, the June 2010 VA examiner noted that the Veteran's symptoms of burning, weakness, and numbness in the legs were caused by the non-service connected diabetic neuropathy, while the symptoms of pain and weakness in the feet and toes were caused by the service-connected left and right foot disabilities. Additionally, at his June 2010 VA examination, the Veteran himself reported that he was still able to stand. The October 2012 VA examiner specifically stated that the Veteran's non-service-connected disabilities, including his bilateral lower extremity weakness, diabetes mellitus, and chronic kidney disease, would make him unable to ambulate with an amputation and prosthesis. Further, the VA examination reports and treatment notes of record do not suggest that the Veteran is unable to perform acts of balance and propulsion as a result of his service-connected foot disabilities. In this regard, at his June 2008 VA examination the Veteran reported that he was still able to walk and at his June 2010 VA examination he reported that he was able to stand. There is no evidence that his bilateral foot disabilities caused him to be unsteady or off balance when performing either of these activities, and as noted, the June 2010 VA examiner noted that his inability to walk was a result of the weakness in his legs caused by his non-service-connected disabilities. Additionally, as stated above, the October 2012 VA examiner specifically stated that the Veteran would not be equally well served with an amputation and prosthetic. Therefore, the record simply does not support a finding that the Veteran's foot disabilities are manifested by loss of use and as such, assigning a disability rating based on such is not warranted at this time. The Veteran is properly rated under Diagnostic Code 5284 for a severe foot injury. The Board notes that in the June 2011 Joint Motion of the Parties, it was found that the Board erred in not discussing whether the Veteran was entitled to Special Monthly Compensation (SMC) based on loss of use of his feet. However, according to 38 C.F.R. § 3.350, entitlement to SMC, a benefit payable in addition to the basic rate of compensation payable for the degree of disability, is only triggered once the Veteran has been found to have anatomical loss or loss of use of one or both feet. In this case, the Board has found that the Veteran's service-connected foot disabilities have not resulted in loss of use. Therefore, entitlement to SMC for such is not allowable by law. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, while the Board acknowledges that the Veteran may be unable to work as a result of his service-connected left and right foot disabilities and entitlement to a TDIU is addressed in the remand portion of this decision, the record reflects that the manifestations of the Veteran's left and right foot disabilities are contemplated by the schedular criteria. In this regard, there is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even frequent emergency treatment for his service-connected left and right foot disabilities. In sum, there is no indication that the average industrial impairment from the Veteran's combined disability picture would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. III. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Furthermore, following the issuance of the Court's June 2011 order granting the Joint Motion, the Veteran was sent letters in August 2011 and October 2011 advising him to submit any additional evidence in support of his claim. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board notes that in a February 2013 statement, the Veteran's representative argued that on remand, attempts to obtain all treatment records pertaining to the Veteran's left and right foot disabilities were not made as directed by the Board in the September 2012 remand. A review of the record shows that in September 2012, the Veteran's VAMC outpatient treatment records were requested. Those records were associated with the Veteran's virtual claims file on the "Virtual VA" system, and have been reviewed by the Board. There is no indication that the Veteran receives treatment outside of the VAMC for his foot disabilities. Additionally, the Veteran and his representative were mailed letters in August 2011 and October 2011 asking them to identify any evidence that might help substantiate the Veteran's claim to include, medical records. In an August 2011 statement, the Veteran reported that he did not have any additional evidence to submit in support of his claim. Therefore, the Board finds that the development conducted in this case complies with the directives of the prior remands. The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained pertinent postservice treatment records and the Veteran was afforded appropriate VA medical examinations, which, as discussed above, the Board has found to be adequate. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his 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). ORDER Entitlement to a disability rating in excess of 30 percent for service-connected fracture residuals of the third and fourth metatarsals of the left foot with degenerative joint disease is not warranted. The appeal is denied. Entitlement to a disability rating in excess of 30 percent for service-connected fracture residuals of the second, third, and fourth metatarsals of the right foot, status-post ORIF of the third and fourth metatarsals, with degenerative joint disease, is not warranted. The appeal is denied. REMAND The Board is of the opinion that additional development is required before the Veteran's claim of entitlement to a TDIU is decided. At the outset, the Board notes that, in Rice v. Shinseki, the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. In his September 2009 NOD, the Veteran stated that his left and right foot disabilities had caused him to quit his job as a farmer, as he was no longer able to perform the duties required of him. Additionally, at his November 2011 VA examination, it was noted that the Veteran had not been working since 2008 as he was unable to ambulate. However, at his June 2008 and June 2010 VA examinations, it was noted that the Veteran had retired in approximately 1998, as he was eligible for retirement and sold his dairy. The Board finds that there is conflicting evidence as to the basis for the Veteran's current unemployment and as such further development is required. A review of the record shows that there is very little information of record regarding the Veteran's employment history and his education level. In addition, the Veteran has not been provided the specific notice required in response to a claim for a TDIU, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. 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.) 1. The RO or the AMC should provide all required notice in response to the TDIU claim, to include providing and requesting the Veteran to complete and return the appropriate form to claim entitlement to a TDIU. 2. The RO or the AMC should undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should adjudicate the Veteran's claim of entitlement to a TDIU. If the benefit sought on appeal is not grated to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs