Citation Nr: 1312571 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-27 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of prostate cancer. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 3. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied a claim for service connection for peripheral neuropathy of the bilateral lower extremities. The RO also granted service connection for residuals of prostate cancer, and assigned a noncompensable (0 percent) evaluation. The Veteran appealed the denial of service connection, and the issue of entitlement to an initial compensable evaluation. In June 2009, the RO increased the Veteran's evaluation for residuals of prostate cancer to 20 percent, with an effective date that was commensurate with the effective date for service connection. In September 2011, the Board denied the claim for service connection, and remanded the claim for an initial evaluation in excess of 20 percent for residuals of prostate cancer for additional development. The appellant appealed the denial of the claim for service connection for peripheral neuropathy of the bilateral lower extremities to the U.S. Court of Appeals for Veterans Claims (Court). In March 2012, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's September 2011 decision denying the claim for service connection for peripheral neuropathy of the bilateral lower extremities. That same month, the Court issued an Order vacating the September 2011 Board decision. The issues of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's residuals of prostate cancer are not shown to be manifested by local reoccurrence or metastasis; they are not shown to have been productive of the need to wear absorbent material, which must be changed 2 to 4 times per day, daytime voiding interval less than one hour, or awakening to void five or more times per night, obstructed voiding, or renal dysfunction. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for service-connected residuals of prostate cancer have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.115a, 4.115b, Diagnostic Code 7528 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Initial Evaluation The Veteran asserts that he is entitled to an increased initial evaluation for his service-connected residuals of prostate cancer. He argues that he must get up three to four times per night to urinate, and that he has to urinate every 11/2 to 2 hours during the day. See Veteran's appeal (VA Form 9), received in June 2009. As for the history of the disability in issue, see 38 C.F.R. § 4.1, the Veteran did not receive any relevant treatment during service. Rather, in March 2008, the RO granted service connection for this disability under the presumptive provisions based on exposure to Agent Orange, as the Veteran is shown to have service in the Republic of Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. The Veteran's post-service medical reports show that in November 2002, he was diagnosed with adenocarcinoma of the prostate. Between January and April of 2003, he underwent treatment that included external beam and brachytherapy. In March 2008, the RO granted service connection for "residuals, prostate cancer," evaluated as noncompensable (0 percent disabling), with an effective date for service connection of May 18, 2007. The Veteran appealed the issue of entitlement to an initial compensable evaluation. In June 2009, the RO granted the claim, to the extent that it assigned a 20 percent evaluation, with an effective date of May 18, 2007. Because this increase did not constitute a full grant of the benefits sought, the increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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 (West 2002); 38 C.F.R. § 4.1 (2012). 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). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207 -08 (1994). As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a layperson the Veteran is only competent to report observable symptoms, but not the clinical findings which are applied to VA's Rating Schedule. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2012). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). The Veteran's prostate condition has been evaluated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528, which covers malignant neoplasms of the genitourinary system, and which specifically directs that following cessation of surgery, X-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Under 38 C.F.R. § 4.115a, in evaluating voiding dysfunction, rate particular condition as urine leakage, frequency, or obstructed voiding. Continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence: With regard to the criteria for voiding dysfunction, a 40 percent rating is warranted for: Voiding dysfunction, requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. 38 C.F.R. § 4.115a. With regard to the criteria for urinary frequency, a 40 percent rating is warranted for: Daytime voiding interval less than one hour, or; awakening to void five or more times per night. A VA examination report, dated in May 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that he had recurrent UTI (urinary tract infections) since 2004. The report notes that there are no general systemic conditions due to genitourinary disease, and that the Veteran has urgency, hematuria, a daytime voiding interval of one to two hours, and four voiding per night. The report indicates that there is no hesitancy or difficulty starting stream, weak or intermittent stream, dysuria, dribbling, or urethral discharge, and no history of renal colic. There was urinary leakage, described as occasional urine leakage due to urgency, with intermittent use of an appliance. The report indicates that there were 3 or more hospitalizations in the past year for urinary tract infections. There was no history of drainage, and a total duration of one to three months for urinary tract infections with medication. There was no history of obstructed voiding, urinary tract stones, renal dysfunction or failure, acute nephritis, hydronephrosis, or cardiovascular symptoms. An examination of the bladder and urethra were normal. The Veteran was noted to be employed full-time in private security, with no time lost during the last 12-month period. The diagnoses included prostate cancer, post-radiation therapy, in cancer remission, urinary urgency, and recurrent urinary tract infection. The general occupational effect was "significant." Specifically, it was noted that the Veteran "needs bathroom privilege due to urinary urgency." The effects on usual daily activities were described as "none" (chores, feeding, bathing, dressing, and grooming), "mild" (shopping, exercise, recreation, traveling, and toileting), and "moderate" (sports). A VA disability benefits questionnaire (DBQ), dated in October 2011, indicates that the Veteran felt that his problem was a combination of voiding dysfunction and urinary frequency, which contribute about equally to his level of disability. The report notes that he has much less problems in the way of obstructive symptoms or urinary tract infections. With regard to voiding dysfunction, the Veteran stated, "[I]f I don't get somewhere real quick, it's gonna happen," and he would have leakage of urine. He also reported leakage with coughing or straining, or sometimes if he got up from a sitting position or off of the toilet. He stated that the amount of leakage was "not a great deal." He reported that sometimes he wore a pad for protection against leakage, but it was noted that he was not wearing one at the examination. The Veteran reported that he uses pads if he was going out, but that he did not have time to use one on the day of the examination, and that he did not use them around his home. He reported that his sleep was interrupted about every 11/2 to 2 hours because he had to get up to use the bathroom, and that this usually occurs four times per night, or five times if he sleeps longer than usual. He stated that during the daytime, he had a frequency of urination every 11/2 to 2 hours. His obstructive symptoms were noted to be "relatively minor," with reports of a weak stream and some hesitancy, "neither of which are very severe at all." The Veteran reported that his urinary tract infections have not been as much of a problem in the past year or two, and that in the past 12 months, there have been no documented urinary tract infections. He stated that he had been given antibiotics for a respiratory condition about three weeks before, and that he might have been having a urinary tract infection at that time, but the examiner stated that there is nothing in the record about this, and that no urinalysis was done. The examiner further stated that although the Veteran had urinary tract infections after his treatments for prostate cancer, he does not currently have recurrent urinary tract infections. The report shows that the examiner noted that the Veteran's disease was in remission, that his treatment for prostate cancer had been completed, and that he was currently in "watchful waiting status." The examiner indicated the following: the Veteran requires absorbent material which must be changed less than 2 times per day. Voiding dysfunction did not require the use of an appliance, but it did cause increased urinary frequency. Daytime voiding interval was between 1 and 2 hours. There were 3 to 4 nighttime awakenings to void. The Board finds that an initial evaluation in excess of 20 percent is not warranted. The May 2009 VA examination report shows that the Veteran reported a daytime voiding interval of one to two hours, and four voidings per night. In June 2009, the Veteran reported that he must get up three to four times per night to urinate, and that he has to urinate every 11/2 to 2 hours during the day. See Veteran's appeal (VA Form 9), received in June 2009. The October 2011 VA DBQ shows that the Veteran reported that his sleep was interrupted about every 11/2 to 2 hours because he had to get up to use the bathroom, and that this usually occurs four times per night. He stated that during the daytime, he had a frequency of urination every 11/2 to 2 hours. Although he also reported that he may need to urinate five times a night, this was only "if he sleeps longer than usual." Therefore, the evidence shows that his residuals of prostate cancer disability more nearly approximate the criteria for no more than an initial 20 percent evaluation, and that the claim must be denied. The Board has considered the possibility that a higher rating may be warranted by rating this disability under another diagnostic code. However, the Board's review of the medical evidence shows that the evidence is insufficient to warrant an increased initial evaluation based on renal dysfunction, obstructed voiding, or urinary tract infections, see 38 C.F.R. 4.115, 4.115b, or any other symptomatology as provided for under Diagnostic Codes 7500-7542. In this regard, it appears that during his May 2009 VA examination, the Veteran reported that there were 3 or more hospitalizations in the past year for urinary tract infections. Such hospitalization is not, in fact, shown, therefore, this notation is "by history" only, and is afforded no probative value. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see also October 2011 VA DBQ (noting that the Veteran does not currently have recurrent urinary tract infections). In addition, during his October 2011 VA examination, he reported occasional use of a pad, and occasionally urinating in his pants while at work, with lost time while going home to change. He stated that this was not the main reason for his not working anymore. The examiner concluded that the use of pads would prevent his disability "from being an issue at work," and that there were "no other effects on his occupation." The examiner indicated that the Veteran requires absorbent material which must be changed less than 2 times per day. In summary, there is no evidence to show that he requires the wearing of absorbent materials which must be changed 2 to 4 times per day, or that he has obstructed voiding, or renal dysfunction. Therefore, an increased initial evaluation is not warranted under 38 C.F.R. § 4.115a. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. The Board has fully considered how the Veteran's symptoms affected his overall occupational and social impairment. A Veteran is usually competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating claims for increased evaluations, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While he is competent to report that his symptoms are worse, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Consideration has been given to assigning a staged rating for this claim; however, at no time during the time period in question have the Veteran's symptoms warranted the assignment of an increased evaluation in excess of that which has been herein affirmed. See Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007). In conclusion, the Board finds that the criteria for an increased initial evaluation for residuals of prostate cancer have not been met. Where, as here, the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's residuals of prostate cancer do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In this case, the Veteran has not expressly raised the matter of entitlement to an extra-schedular rating for his service-connected residuals of prostate cancer. The Veteran's contentions have been limited to those discussed above, i.e., essentially that his disability is more severe than reflected by the currently assigned rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). In this regard, the evidence shows that the Veteran has been employed full-time for most of the time period on appeal, with undetectable PSA levels since 2003. The October 2011 VA DBQ shows that the examiner concluded that the use of pads would prevent his disability "from being an issue at work," and that there were "no other effects on his occupation." The Veteran indicated that he was no longer working, but that his urinary symptoms were not the main reason for this. There has been no showing that the Veteran's disability picture for his residuals of prostate cancer could not be contemplated adequately by the applicable schedular rating criteria discussed above. Those criteria provide for a higher evaluation in this case, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extra-schedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. The Veterans Claims Assistance Act of 2000 The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in a letter from the RO dated in June 2007, in association with his claim for service connection. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In March 2008, the Veteran was granted service connection for residuals of prostate cancer, and assigned an initial disability rating and effective date. As this claim was more than substantiated in that it was proven, the purpose that the notice is intended to serve has been fulfilled and no additional notice is required for this claim. Dingess, 19 Vet. App. at 490-91. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded examinations. In September 2008, the RO issued a memorandum in which it concluded that the Veteran's records from the Social Security Administration (SSA), were not available, and that further attempts to obtain them would be futile. See 38 C.F.R. § 3.1549(d) (2012). That same month, the RO informed the Veteran that his SSA records could not be located. See 38 C.F.R. § 3.159(e) (2012). In September 2011, the Board remanded this claim. The Board directed that the Veteran be afforded another examination for his residuals of prostate cancer, and in October 2011, this was done. The October 2011 examination report (DBQ) shows that the examiner reviewed the Veteran's medical history, recorded his current complaints, conducted an appropriate examination, and rendered appropriate findings, and diagnoses, that are consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Veteran and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claim on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims does not cause any prejudice to the Veteran. ORDER An initial evaluation in excess of 20 percent for service-connected residuals of prostate cancer is denied. REMAND The Veteran is shown to have served in Vietnam, and he is therefore presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012). In March 2008, the RO granted service connection for prostate cancer based on the presumptive provisions for veterans presumed to have been exposed to Agent Orange at 38 C.F.R. § §§ 3.307, 3.309, and denied his claim for service connection for peripheral neuropathy of the bilateral lower extremities "secondary to prostate cancer." The Veteran appealed, and in September 2011, the Board denied the claim on both a direct and secondary basis. The Board noted that the Veteran had claimed that he had peripheral neuropathy of the bilateral lower extremities due to exposure to Agent Orange, or, in the alternative, as secondary to his service-connected diabetes. A review of the March 2012 Joint Motion shows that it was agreed that the Veteran had raised several theories of service connection, and that the June 2007 VCAA notice had failed to adequately advise the Veteran as to what evidence was needed to establish his claim on the basis of direct service connection, or as secondary to service-connected diabetes. The Joint Motion states that the Veteran should be provided with another VCAA letter which includes "full and complete information regarding all claims and theories of entitlement." It was further agreed that a May 2009 VA medical opinion was inadequate because the examiner had failed to provide requested opinions as to whether the Veteran had peripheral neuropathy of the lower extremities due to his service, (i.e., on a direct basis), or that was caused or aggravated by his service-connected prostate cancer. The Joint Motion states that on remand, an opinion should be obtained which discusses whether or not there is any relationship between the Veteran's peripheral neuropathy of the lower extremities and exposure to Agent Orange, and/or his service-connected prostate cancer. The Board notes that in a recent decision, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of "continuity of symptomatology" can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Under 38 C.F.R. § 3.309(a), chronic conditions subject to presumptive service connection, if certain conditions are met, include "Other organic diseases of the nervous system." On remand the examiner should be requested to state whether the Veteran has a disorder of the nervous system of either lower extremity which is more accurately characterized as an organic disease of the nervous system. The appellant is hereby notified that it is the appellant's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Finally, the claims files include statements from the Veteran in which he asserts that he cannot work due to his service-connected disabilities. See e.g., Veteran's statements, received in May 2011, and December 2012. Under the circumstances, a TDIU claim has been raised. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); 38 C.F.R. 3.155 (2011). In Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (per curiam) the Court stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board has jurisdiction to consider that issue. The Court indicated that if the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue. Here, the RO has not yet adjudicated a claim for TDIU, nor has the Veteran been afforded VCAA notice. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective VCAA notice letter with respect to the issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, and entitlement to TDIU. The notice letter must advise the Veteran of the evidence required to establish service connection for peripheral neuropathy of the bilateral lower extremities on a direct basis, to include on the basis of exposure to Agent Orange, and on the basis of secondary service connection, to include as due to his service-connected diabetes mellitus, and/or prostate cancer. 2. After the development requested in the first paragraph of this remand has been completed, the RO/AMC (Appeals Management Center) should schedule the Veteran for a VA peripheral nerves examination to determine whether or not the Veteran has a neurological disorder of his lower extremities, and, if so, whether it is related to his service, or a service-connected disability. The claims files must be provided to the examiner in connection with the examination, and the examiner should indicate that the claims files have been reviewed. The examiner should be informed that the Veteran's active duty was between August 1967 and August 1969, that he had service in Vietnam, and that his exposure to herbicides during service in Vietnam is presumed. The examiner should be provided with a list of the Veteran's service-connected disabilities. If a diagnosed neurological disorder of either lower extremity is found, the examiner should provide opinions as to the following: a) Whether the Veteran has peripheral neuropathy of either lower extremity, and, if so, whether his peripheral neuropathy is more properly characterized as either "acute" or "subacute." b) Whether the Veteran has a disorder of the nervous system of either lower extremity that is more accurately characterized as an "organic disease of the nervous system." See 38 C.F.R. § 3.309(a). c) If, and only if, the examiner determines that the Veteran has a disorder of the nervous system of either lower extremity that is more accurately characterized as an "organic disease of the nervous system," whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran has a neurological disorder of either lower extremity that was caused by his service (i.e., other than due to exposure to Agent Orange). d) Whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran has a neurological disorder of either lower extremity that was caused by exposure to Agent Orange during service. e) Whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran has a neurological disorder of either lower extremity that was caused or aggravated by his service-connected diabetes mellitus, or by his service-connected prostate cancer. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. "Aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. 3. Thereafter, the RO should readjudicate the claims, to include developing and adjudicating the issue of entitlement to TDIU. If either of the benefits sought on appeal remains denied, the appellant and the appellant's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim(s) for benefits, to include a summary of the evidence and applicable law and regulations, not previously provided, considered pertinent to the issue(s) currently on appeal. An appropriate period of time should be allowed for response. The claims files should then be returned to the Board, if otherwise in order. 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs