Citation Nr: 1313340 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 06-15 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for a mood disorder. 2. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from February 1979 to August 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2005 and August 2006 rating decisions by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the June 2005 decision, service connection for a mood disorder was granted, and an initial 30 percent evaluation was assigned, effective from December 22, 2004. Entitlement to TDIU was denied in the August 2006 decision. The issues have been previously before the Board. They were remanded in a February 2009 Board decision for further development. In a September 2011 decision, the Board granted entitlement to a higher, 50 percent evaluation for the service-connected mood disorder. This was implemented by the Appeals Management Center the same month. Entitlement to TDIU was remanded by the Board for further development, which has now been accomplished. The Veteran appealed the Board's assignment of a 50 percent evaluation for a mood disorder, and in July 2012, on the basis of a Joint Motion for Partial Remand, the Court of Appeals for Veterans Claims (CAVC or the Court) vacated that part of the Board's decision which denied an evaluation for mood disorder in excess of 50 percent, and remanded the matter for further consideration. The Veteran abandoned his appeals with regard to the evaluations assigned for his other service-connected disabilities; the sole issues remaining on appeal are as titled above. The Veteran testified at a December 2008 hearing held before the undersigned Veterans Law Judge via videoconference from the RO; a transcript of the hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure review of the totality of the evidence. 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. FINDING OF FACT A mood disorder is manifested by occupational and social impairment with reduced reliability and productivity, due to symptoms such as sleep disturbance, anxiety, depression, impaired concentration, and irritability; serious deficiencies in most areas are not shown. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for a mood disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a mood disorder. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have been associated with the claims file. 38 C.F.R. § 3.159 (c) (2). Repeated VA examinations have been afforded the Veteran; examiners made all clinical findings necessary for application of the rating schedule. They are adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The adequacy of a May 2010 VA mental disorders examination was questioned in the Joint Motion; the Board remand which prompted the examination has directed that the examiner review a simultaneously ordered VA orthopedic examination. While both examinations were performed, the mental disorders examination was accomplished first, and hence the orthopedic findings could not have been reviewed. On its face, the remand directive had not been complied with. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court remanded the appeal for the Board to secure such compliance, or to explain why the actions taken on remand had substantially complied with the Board's directives. Substantial compliance is all that is required with VA remand orders, particularly when an explanation is offered for any variance. D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Board finds that at the time of the Board's September 2011 decision, VA had failed to comply with the Board's remand directive, and there had been no substantial compliance. The February 2009 Board remand had noted that the Veteran's service connected disabilities may have increased in severity, and updated findings were required. Additionally, there was some indication of exaggeration of symptoms by the Veteran. As the mood disorder was service-connected secondary to the Veteran's other service-connected disabilities, their actual severity could potentially inform the examination of his mental disorder. This was not accomplished, in violation of Stegall v. West, 11 Vet. App. 268, 271 (1998). However, further remand to correct this deficiency is not required. In September 2011, the issue of TDIU entitlement was remanded, and a general medical examination and a mental disorders examination were conducted. The October 2011 general medical examination preceded the November 2011 psychiatric examination, and the mental disorders examiner stated that he reviewed VA electronic records. This meets the letter of the Board's February 2009 remand. Further, both 2011 examiners indicated they had reviewed the claims file, to include the May 2010 VA examinations, and the mental disorders examiner commented on the current status of the disability in that historical context. At this time, substantial compliance with the February2009 Board remand directive is established. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's mood disorder is rated under Diagnostic Code 9435, which directs application of a general rating formula. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, is rated 50 percent disabling. Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. In a February 2004 decision, SSA found the Veteran disabled as of January 2004, based on his physical disabilities; the ruling Administrative Law Judge (ALJ) did not attribute any functional impairment to a mental disorder. However, depressive symptomatology was noted by a November 2003 evaluator in connection with that determination. The Veteran reported feelings of depression and loss of interest in activities. He described low energy, decreased concentration, and impaired memory. The Veteran stated that he was frequently worried and irritable. Objective testing was consistent with the subjective complaints. The examiner opined that concentration, persistence, and memory problems resulted in marked impairment due to depressive symptoms, and his ability to adapt was severely impaired. A Global Assessment of Functioning (GAF) score of 50 was assigned. A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 41-50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 51-60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. The April 2005 VA examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's family and military history were noted in the report. The Veteran indicated that he last worked in 2002 and that he stopped working due to physical problems. The Veteran was noted to be divorced with three children with whom he had very frequent contact. The examiner indicated that the Veteran had a history of alcohol and drug abuse, but he was currently abstinent and attending a relapse prevention group. The examiner also noted that the Veteran was taking various medication for depression. The Veteran reported feeling critical and worthless and indicated that it has been difficult for him to cope with his physical decline. The Veteran indicated that he has experienced suicidal ideation, but had not acted on it because of his Christian belief. Upon examination, the Veteran was noted to be neat and cleanly dressed. He was very pleasant, polite, and cooperative, albeit somewhat nervous. Thought content and processes were within normal limits, and there was no evidence of delusions or hallucinations. The Veteran maintained eye contact throughout the session and there was no inappropriate behavior noted. The Veteran admitted to suicidal ideation without current intent, and was noted to be alert and oriented times four. There was no evidence of gross memory loss or impairment, and speech was linear, coherent, and of normal rate and volume. The Veteran reported that his psychiatric history was unremarkable until he began suffering symptoms of hepatitis C, for which he is service-connected. Prior to this and in the military, the Veteran was indicated to have been very well adjusted, very active and athletic, and performed well in the military. Afterwards, the Veteran was noted to have been employed as a firefighter and working in a shipyard. As the Veteran's physical problems progressed, however, he found it increasingly difficult to work and had to stop. The Veteran was instead noted to be attending college and doing well until, due to concentration problems, his grades began to slip. The Veteran's symptoms were noted to be depressed mood, diminished interest in pleasurable activities, loss of appetite, insomnia, loss of energy, feelings of worthlessness, diminished ability to concentrate, and recurrent suicidal ideation. The Veteran also indicated that he had very few meaningful social relationships, as he indicated that he did not want to be around other people. After examination, the Veteran was diagnosed with mood disorder due to general medical condition with major depressive-like episodes. He was assigned a GAF score of 52. The Veteran was again examined by VA in May 2006. The examiner indicated that the Veteran's claims file had not been reviewed in connection with the examination and report, but that a review of the Veteran's treatment records from the Mobile Outpatient Clinic was conducted. The Veteran reported that he remained unemployed since his last VA examination and last worked as a firefighter at a shipyard. The Veteran indicated that he had to stop working because of his physical condition, primarily hepatitis and his knee conditions. The Veteran was noted to be going to school at the time of his last VA examination, but reported that since that time his grades had steadily declined due to fatigue and difficulty concentrating. He withdrew from school in November 2005. In addition, the Veteran reported that he would get irritable, would isolate himself a great deal and had no girlfriend or meaningful relationships. The Veteran indicated that he had always been close to his parents, but that he now wanted to distance himself from them. He stated that he remained close to his three daughters. The Veteran was noted to be taking medication for his various medical conditions and that he continued to see a substance abuse counselor and remained abstinent from alcohol and illegal drugs. The Veteran was also noted to taken Ambien for poor sleep. The Veteran denied active suicidal ideation, but reported that he sometimes wished he were dead. Upon examination, the Veteran was noted to arrive early accompanied by his mother. The Veteran was neatly and cleanly dressed and demonstrated good personal hygiene. He was pleasant and cooperative, though anxious with a congruent affect. Thought process and content were within normal limits, and there was no evidence of delusions or hallucinations. The Veteran maintained eye contact and there was no inappropriate behavior noted. The Veteran admitted to passive suicidal ideation. He was alert and oriented times four and there was no evidence of gross memory loss or impairment. The Veteran's speech was noted to be linear, coherent, and a normal rate and volume. After examination, the Veteran was indicated to continue to endorse symptoms of depression. His symptoms were noted to be depressed mood, loss of appetite, insomnia, loss of energy, diminished ability to concentrate, and passive suicidal ideation. These symptoms were indicated to be consistent with a diagnosis of depression. The examiner found that these symptoms were moderate in severity and occurred daily. The Veteran also indicated that he had very few meaningful social relationships, and that he preferred to stay isolated in his home. In March 2009, one of the Veteran's treating doctors reported that while the Veteran had been clean and sober for many years, and his depression was usually under good control with medication, his condition was fragile and he would often grow depressed again. The doctor felt the Veteran could not work because of his mental disorder. The VA Vocational Rehabilitation file reflects that the Veteran was highly motivated to return to work, and his counselors commented on his positive attitude. When he eventually was found ineligible for continued training due to the severity of his disabilities in 2009, he expressed that he appreciated the efforts of his counselors, and he in fact checked in with them in August 2009 to report that everything was going well in his life. The Veteran was afforded a VA examination in connection with his service-connected mood disability dated in May 2010. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. The Veteran's medical history was noted in the report. On examination, the Veteran was indicated to be clean and casually dressed. His speech was spontaneous, clear, and coherent, and the Veteran was noted to be cooperative, friendly, and relaxed. His affect was appropriate and his attention was intact. He was oriented to person, time and place, and his thought process and content were unremarkable. The Veteran was noted to have no delusions or hallucinations, his intelligence was average and he was indicated to understand the outcome of his behavior. There was no inappropriate behavior, no obsessive or ritualistic behavior, no panic attacks, no homicidal or suicidal thoughts, no episodes to violence, and no problem with activities of daily living. The Veteran was noted to interpret proverbs correctly, was found to have good impulse control, and was found to have the ability to maintain minimum person hygiene. The Veteran last reported use of alcohol or street drugs in 2005. The examiner found that the Veteran's remote memory was normal, his recent memory was mildly impaired, and his immediate memory was normal. The Veteran was noted to have depression in the moderate range. The Veteran was indicated to be unemployed, but not retired, as the Veteran physically could not perform his job due to joint pain. After examination, the Veteran was diagnosed with mood disorder due to general medical condition. He was assigned a GAF score of 57. The examiner found that there was not total occupation and social impairment due to his diagnosed mental disorder and that his condition did not result on deficiencies in judgment, thinking, family relations, work, mood, and school. However, the examiner found that there was reduced reliability due to symptoms, including poor sleep that would likely affect his energy and level of productivity. The Veteran also reported periods of agitation and depression, and indicated that he has few meaningful social relationships. The examiner was also asked to give an opinion regarding the Veteran's overall employability. The examiner opined that the Veteran's mood disorder did not render the Veteran unemployable. Although the Veteran reported problems with concentration, his attention, memory, and concentration did not appear to be significantly impaired. He was able to communicate and understand information and instructions both verbal and written and was able to interact appropriately in social situations. His judgment and ability to make decisions appeared at least adequate. The most recent VA mental disorders examination was conducted in November 2011. The examiner reviewed the claims file and the Veteran's electronic VA records. The Veteran reported that he remained married, and had a good relationship with his wife and four adult children. He attended church and maintained friendships with several people by phone, but did not go out to socialize much. He used to sing, nut did not do so as much anymore. With medication, he slept four hours a night; he was fatigued during the day, and reported that as a result he was irritable and edgy. He felt "antsy" and had trouble concentrating. He was bothered by his inability to be as physically fit and active as he used to be, but denied crying spells or suicidal ideation. He denied use of alcohol or street drugs since his last examination. Depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances were identified as symptoms of the Veteran's diagnosed mood disorder. The examiner commented that while there had been no remission of symptomatology since the 2010 VA examination, the mood disorder symptoms were also fairly consistent. The examiner assigned a GAF score of 58, and opined that the mood disorder did not render the Veteran unemployable. He had no thought disorder, and no delusions or hallucinations were reported or evident. Behavior was generally appropriate. He was not a danger to himself or others. He demonstrated an ability to communicate and understand information, and acted appropriately in social situations. Judgment and decision making were adequate. The examiner also observed that while the Veteran reported problems with concentration, on examination his attention, memory, and concentration did not appear impaired. The examiner endorsed a finding that the Veteran showed "occupational and social impairment with reduced reliability and productivity." A review of the Veteran's outpatient treatment records indicates continued treatment for mood disorder and major depression. He has been assigned GAF scores ranging from 45 to 60, with most scores in the high 40s and low to mid 50s. Treatment records reflect an upward trend in GAF scores in recent years. Although the Veteran's other evidence and treatment reports were also reviewed, the Board was unable to locate any records to show that the Veteran's service-connected disability was more severe than demonstrated in the VA examinations and records noted above. Over the course of the appellate period, the Veteran has reported consistent symptomatology related to his mood disorder; examiners have noted this consistency over time, and the assigned GAF scores reflect that consistency. While there is some variation in scores, the overall range of assigned GAF scores is relatively narrow. Moreover, the functional impact of depressive symptoms during the appellate period demonstrates reduced reliability and productivity, without serious deficiencies in most areas of his life. As a student, the Veteran was doing fairly well, until concentration problems and fatigue undercut his efforts. He can, and is generally willing to, undertake tasks, but is unable to complete them in a timely and accurate manner. He is aware of, and bothered by, these lapses, and as a result in somewhat irritable, with difficulty adapting to changing circumstances. He is, however, able to make some adjustments, as is reflected by his efforts in Vocational Rehabilitation. During his appeal, the Veteran married, and has maintained good relationships with his family members. He remains somewhat active in his church. He reports he has friends, though he does not go out to socialize very much. No examiner or treating provider has questioned the Veteran's judgment, and no formal thought disorders are identified. He has consistently been well groomed, and there have been no incidents of violence despite his reported irritability. Overall, the Veteran has maintained good control of his mental health symptomatology. While his mood disturbances, impaired concentration, fatigue from sleep impairment, and anxiety have impacted his occupational and social functioning, he has maintained some degree of productivity and reliability. He continues to seek treatment, and remains socially active to some extent, within and without his family. At no time have symptoms triggered reports of suicidal ideation, and the Veteran has continued to function well on a daily basis, without need for support in daily activities. He remains independent. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the schedular criteria are adequate. The Veteran's complaints of depression, irritability, sleep problems, an impaired concentration, as well as his descriptions of the overall impact of his mood disorder on occupational, social, and academic functioning are fully contemplated by the Schedule. Examples of criteria consistent with his complaints are specifically listed. No further discussion of extraschedular evaluation is therefore required. Accordingly, no evaluation in excess of the currently assigned 50 percent is warranted for the service-connected mood disturbance. The preponderance of the evidence is against the claim; there is no doubt to be resolved. ORDER An initial evaluation in excess of 50 percent for a mood disorder is denied. REMAND With regard to entitlement to TDIU, remand is required to ensure a complete and accurate record for adjudication. The Veteran filed a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in November 2005. This form contains important information regarding a claim for TDIU, to include employment history, educational achievement, and vocational training. Since the submission of that form, the Veteran has undergone further vocational assessment through VA, and has investigated other employment opportunities. As a result, in March 2009 the VA Vocational Rehabilitation service formally found that the Veteran was so severely disabled that retraining and employment were no longer considered feasible. However, three months after that determination was made, in June 2009, the Veteran reported that he had found a job with the Witherington Construction Company in Alexandria, Alabama. His description of the employment raises some questions as to the "substantially gainful" nature of the job, as well as its duration. Two months later, he inquired about home loans. This information, following the Vocational Rehabilitation feasibility determination, indicates that form at least some portion of the appellate period the Veteran may in fact have been employed, or at least employable. Further inquiry is required to determine for which periods such may be true. On remand, both the Veteran and his alleged employer must be contacted to establish the nature and extent of the reported employment opportunity. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file complete VA treatment records from the VA Gulf Coast Veterans Health Care System (Biloxi, Mississippi), and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of March 2012 to the present. 2. Contact the Veteran and request that he complete and submit an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The veteran must be asked to specifically discuss any and all employment since 2005, to include that reported with the Witherington Construction Company in or about June 2009. 3. Contact the Witherington Construction Company in Alexandria, Alabama, as well as any other employer identified by the Veteran since November 2005, and request a completed VA Form 21-4192, Request for Employment Information in Connection With Claim for Disability Benefits, regarding the Veteran's reported June 2009 employment, as well as any other period of employment. The employers should be asked to clearly state if the Veteran worked for them as a contractor as opposed to an employee. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs