Citation Nr: 1317811 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 06-11 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for service-connected posttraumatic phobic neurosis (PPN) with headaches, dizziness and seizures. 2. Entitlement to a compensable disability evaluation for a service-connected corn of the right fifth toe. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from February 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in New Orleans, Louisiana that, in pertinent part, denied the issues currently on appeal. In May 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC, to schedule the Veteran for a hearing under the provisions of 38 C.F.R. §§ 20.704(d), 20.707. In August 2011, the Veteran testified before the undersigned Acting Veterans Law Judge sitting at the RO. A written transcript of this hearing has been prepared and incorporated into the evidence of record. The Veteran's claims were again remanded by the Board in May 2012 so that additional VA treatment records could be obtained and so that the Veteran could be scheduled for VA examinations to determine the current level of severity of the issues presently on appeal. As noted in the Board's previous remand of May 2012, during the course of the appeal, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, and appointed a private attorney as his representative. In January 2011, the Veteran revoked this power of attorney and executed a VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, and appointed the Disabled American Veterans as his representative. As an introductory matter, the Board has reworded the issue on appeal as entitlement to an increased evaluation for PPN with headaches, dizziness and seizures. Service connection was previously granted for a seizure disorder in a May 2012 Board decision. The Appeals Management Center (AMC) subsequently assigned a 10 percent disability evaluation, which the Veteran has not disagreed with. Nonetheless, entitlement to a higher rating for a seizure disorder must still be considered as part of the Veteran's current claim since revised Diagnostic Code 8045 (2012) states that all areas of dysfunction may require evaluation, including cognitive, emotional/behavioral and physical dysfunction. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). As a seizure disorder has been found to be a physical dysfunction associated with the Veteran's traumatic brain injury (TBI), it is inherently a part of his claim for a higher disability evaluation. The issue of entitlement to a disability evaluation in excess of 30 percent for service-connected posttraumatic phobic neurosis (PPN) with headaches, seizures and dizziness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected corn of the right fifth toe is subjectively manifested by pain and/or discomfort. CONCLUSION OF LAW The criteria for establishing entitlement to a 10 percent disability evaluation for a service-connected corn of the right fifth toe have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7804 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Such notice was provided to the Veteran in a letter dated November 2006. While this notice was not provided to the Veteran until after the initial adjudication of his claim, the claim was subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in August 2005, March 2010 and June 2012, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private medical records and Social Security Administration (SSA) records have also been obtained and incorporated into the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. The Board also finds no credible lay or medical evidence of increased severity of the service-connected corn of the right 5th toe since the last VA examination. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board reiterates that the Veteran provided testimony before the undersigned in August 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2011 hearing, the undersigned identified the issues on appeal and information was solicited regarding the nature of his argument with respect to these claims. The Veteran was also informed to submit any additional evidence he had in his possession that might be relevant. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Any deficiencies were cured with the Board's May 2012 remand for additional evidence and examination. Additionally, the Board finds there has been substantial compliance with its most recent remand directives of May 2012. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) scheduled the Veteran for a new VA examination and that he attended that examination. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Corn of the Right Fifth Toe The Veteran contends that he is entitled to a compensable disability evaluation for his service-connected corn of the right fifth toe. Specifically, the Veteran has asserted that this condition is painful and impairs his ability to stand. Having reviewed the evidence of record in a light most favorable to the Veteran, the Board finds that a disability evaluation of 10 percent is in fact warranted. The Veteran was granted service connection for a corn of the right fifth toe in a February 1982 rating decision. A noncompensable (0 percent) disability evaluation was assigned under Diagnostic Code 7899, effective as of September 7, 1981. An April 2005 statement from the Veteran was interpreted to be a claim for a higher disability evaluation. This claim was subsequently denied in a November 2005 rating decision. A timely notice of disagreement was received from the Veteran in February 2006, but his noncompensable disability evaluation was continued in a November 2006 statement of the case. An additional statement of the case was issued in October 2007, and the Veteran appealed the assigned rating to the Board in December 2007. The Veteran was afforded a general VA examination in August 2005. It was noted that the Veteran suffered from a callous/corn that he treated by soaking, using over the counter medications/pads and shaving the area. The Veteran reported chronic pain stemming from his corn. Nonetheless, the examiner concluded that the corn did not limit the Veteran's employability, mobility or daily functioning. The Veteran was afforded a VA skin examination in March 2010. It was noted that the Veteran had received no treatment other than self-treatment for the right fifth toe. He used a corn remover and occasionally scraped it. However, he described no limitations in activities of daily living, flare-ups or incapacitating events. Examination revealed a soft corn between the fourth and fifth toe with slight maceration of the skin. The examiner concluded that the Veteran had a minimally symptomatic soft corn between the fourth and fifth toes that had not required any treatment since separation from service. X-rays were also performed, revealing no significant radiological abnormalities. The Veteran was most recently afforded a VA examination of the feet in June 2012. The Veteran was noted to be suffering from a corn of the right fifth toe. This was found to be very soft and non-tender. The examiner concluded that, given how soft and non-tender the Veteran's corn was, it should offer no discomfort that would be limiting. There were no other disorders associated with the feet and there was no scarring related to this condition. The examiner noted that the Veteran had been seen at the Houston VA since 2005 and it was not apparent that he had ever seen the foot doctor. The examiner concluded that this would not limit the Veteran's mobility at all and that he should be able to walk far and stand long. The above evidence demonstrates that the Veteran is entitled to a 10 percent disability evaluation for his corn of the right fifth toe. This disability is currently rated under Diagnostic Code 7899-7819. Diagnostic Code 7819 is used to rate benign skin neoplasms. 38 C.F.R. § 4.118. This code instructs the rater to evaluate this condition under the regulations pertaining to scars found at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. According to Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. During the August 2005 VA examination, the Veteran reported chronic pain associated with his corn. Also, while the March 2010 VA examiner noted that there were no limitations in activities of daily living, the corn was still noted to be symptomatic (albeit minimally) with slight maceration. The Board recognizes that the June 2012 VA examiner concluded that the Veteran's corn was non-tender and should offer no discomfort due to its soft nature. However, the Veteran testified in August 2011 that the corn was tender and that if he stepped on it a certain way it resulted in pain. Pain is certainly something the Veteran is competent to describe. Therefore, despite the findings of a non-tender corn upon examination, when all of the evidence of record is resolved in the Veteran's favor, the requirements for a 10 percent disability evaluation under Diagnostic Code 7804 have been met. In reaching the above conclusion, the Board took into consideration the amputation rule. Under this rule, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation of that extremity. 38 C.F.R. § 4.68. Amputation of the fifth toe does not warrant a compensable disability evaluation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5170-73. Nonetheless, Note (2) of 38 C.F.R. § 4.118 provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his corn of the right fifth toe at any time during the pendency of this claim. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq. cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. Amendments were made to the criteria for rating the skin, effective as of October 23, 2008. However, the amended regulations are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-05 (2009)). As the Veteran's claim was received in 2004, the amended regulations are not applicable to his claim. There is no evidence to suggest that the Veteran's corn is deep or causes limitation of motion. In fact, the VA examiners of record have consistently found that the Veteran suffers from no limitation or impaired mobility because of this condition. As such, Diagnostic Code 7801 is not applicable. See 38 C.F.R. § 4.118. A disability evaluation in excess of 10 percent is not available under Diagnostic Codes 7802 or 7803. Finally, the VA examiners of record have consistently concluded that the Veteran's right corn results in no limitations on employability, mobility or daily functioning. As such, Diagnostic Code 7805 is not applicable. See id. As such, a higher rating is not available under any applicable diagnostic code. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a disability evaluation of 10 percent is warranted for a corn of the right fifth toe. See 38 U.S.C. § 5107(b). The claim is granted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter 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. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected right 5th toe corn has had on his activities of work and daily living. In the Board's opinion, all aspects of this disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of pain which limits his mobility and ability to stand. His 10 percent rating contemplates the impairment of function caused by a painful benign neoplasm. The Board has also considered whether higher ratings still are warranted based upon other skin symptoms, but the criteria for higher ratings are not met. In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). The Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. At the hearing in August 2011, the Veteran expressly stated that he was not pursuing a TDIU rating. Thus, the Board has no jurisdiction over this issue. ORDER The claim of entitlement to a disability evaluation of 10 percent for a corn of the right fifth toe is granted. REMAND The Veteran contends that he is entitled to a disability evaluation in excess of 30 percent for posttraumatic phobic neurosis (PPN) with headaches, dizziness and seizures. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. For historical purposes, the Veteran was granted service connection for PPN in a February 1982 rating decision. A 30 percent disability evaluation was assigned under Diagnostic Code 9403, effective as of September 7, 1981. The Veteran's disability evaluation was subsequently decreased to 10 percent in a May 1986 rating decision, effective as of August 1, 1986. The 30 percent disability evaluation was again assigned in an October 2000 rating decision, effective as of September 12, 2000. In April 2005, VA received a claim from the Veteran seeking a higher disability evaluation. This claim was denied in a November 2005 rating decision. A timely notice of disagreement was received from the Veteran in February 2006, but the 30 percent disability evaluation was continued in an October 2007 statement of the case. The Veteran appealed this decision to the Board in December 2007. In May 2012, the Board granted service connection for a seizure disorder. The claim of entitlement to a disability evaluation in excess of 30 percent for posttraumatic phobic neurosis with headaches and dizziness was also remanded at this time so that this claim could be considered in light of the amended regulations pertaining to TBI. Revised Diagnostic Code 8045 (2012) states that there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). The Veteran underwent a VA neurological examination in June 2012. The examiner concluded that the Veteran suffered from seizures, headaches, dizziness/vertigo and a mental disorder due to his TBI. The DBQ instructed the examiner to complete a seizure questionnaire, a headache questionnaire, an ear conditions questionnaire and a mental disorder questionnaire if these conditions were found to exist. Regrettably, a review of the evidence of record fails to reflect that any of these requested questionnaires were in fact completed. As such, there is no record of the severity or frequency of symptomatology associated with these conditions. Emotional/behavioral dysfunction is to be evaluated under 38 C.F.R. § 4.130 (Schedule of ratings - mental disorders) when there is a diagnosis of a mental disorder. Physical (including neurological) dysfunction is also to be evaluated under an appropriate diagnostic code. This includes conditions such as seizures, headaches or coordination and balance problems. However, since the Veteran has not been evaluated for the conditions arising from his TBI, the Board is unable to determine the proper rating to assign at this time based on the amended criteria. Therefore, the Veteran should be scheduled for a VA neurological examination and a VA psychiatric examination to determine the severity of all conditions and symptoms associated with his service-connected TBI. The June 2012 VA examiner indicated that the Veteran indeed suffered from headaches, dizziness, seizures and a mental disorder as a result of TBI. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder since September 12, 2011. 2. Upon completion of the above, the RO should arrange for the veteran to be scheduled for a VA TBI protocol examination. The Veteran's claims file must be reviewed in conjunction with the examination. The examiner is requested to perform/arrange for all necessary diagnostic studies. The examination must be conducted following the revised protocol for Traumatic Brain Injury examinations that came into effect on May 25, 2010. The Veteran may require scheduling of multiple special examinations by appropriate examiners to examine each area of dysfunction (cognitive, emotional/behavioral (psychiatric), and physical conditions (including neurological dysfunction)) that may have resulted from his in-service head injury. The examiner should clearly identify any (and all) TBI residual disability entities, pathology, manifestations. If any symptoms or pathology that could potentially be found to be residuals of a TBI are attributed (instead) to a separate co-existing disability (either service-connected or nonservice-connected), there should be an explanation for the records as to why such symptom/pathology is attributed to the co-existing disability, and not to TBI. If any symptoms/pathology noted may be related either to TBI or to a separate co-existing disability (and cannot be dissociated from either) such should also be noted for the record, with explanation. The examiner is asked to specifically address all of the Veteran's complaints and reports of various symptoms and impairment (cognitive, emotional/behavioral (psychiatric), and physical conditions (including neurological dysfunction)) he believes resulted TBI. The examiner must explain the rationale for all opinions. 3. The RO/AMC should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished. If all questions posed are not sufficiently answered, the RO/AMC should return the case to the examiner for completion of the inquiry. 4. The RO/AMC should then readjudicate the claim on appeal in light of all of the evidence of record. If the claim remains denied, the RO/AMC should provide the appellant a supplemental statement of the case as to the issue on appeal, and afford her a reasonable period of time within which to respond thereto. 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). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs