Citation Nr: 1318237 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-37 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for acquired psychiatric disabilities, to include depression with insomnia, to include as directly related to military service or alternatively as secondary to service-connected migraines. 2. Entitlement to an initial evaluation higher than 10 percent for migraines. 3. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, his friend and his significant other ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran has verified active duty from April 1968 to April 1970, with a reserve obligation though April 1974. The Veteran contends that he was called to active duty during that time. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2013, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. At the hearing, the Veteran submitted additional medical evidence with a waiver of initial RO jurisdiction. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran initially filed a TDIU claim in August 2009. The Veteran's TDIU claim was adjudicated by the RO in October 2009, and the Veteran did not appeal this issue. Despite this, the Veteran reported during the February 2012 examination that he is unable to work in part due to his service-connected migraine headaches, and he reiterated that contention in his March 2013 hearing. For this reason, the Board finds that the issue of TDIU is before the Board at this time. The Veteran seeks service connection for depression. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Therefore, the issue has been recharacterized above as service connection for acquired psychiatric disabilities, to include depression with insomnia. The issue of service connection for acquired psychiatric disabilities and entitlement to a total evaluation based on individual unemployability 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. FINDINGS OF FACT 1. Prior to February 9, 2012, the Veteran's service-connected migraine headaches are shown to have been manifested by prostrating attacks occurring on an average once a month over several months. 2. Beginning February 9, 2012, the Veteran's service-connected migraine headaches are shown to have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to February 9, 2012, the criteria for a 30 percent rating for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. Beginning February 9, 2012, the criteria for a 50 percent rating for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In December 2008, the agency of original jurisdiction (AOJ) sent a letter to the Veteran providing the notice required for the initial claim of service connection for migraine headaches. Service connection was subsequently granted for migraine headaches, and the Veteran appealed the assigned 10 percent evaluation effective November 21, 2008. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, in a letter dated in December 2008, the AOJ notified the Veteran of the process by which disability ratings and effective dates are determined. The Veteran has been adequately notified of the information and evidence necessary to substantiate his claim for a higher rating. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim. The Board has reviewed the examination report and finds that the examination was adequate for rating purposes. Therefore, the duty to assist has been fulfilled. II. Entitlement to an initial evaluation higher than 10 percent for migraines. A. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. For migraine disabilities, a noncompensable rating is assigned for less frequent attacks than is required for a 10 percent rating. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on average of once a month over the last several months. The maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (effective before and after October 23, 2008). B. Facts In this case, the Veteran filed a claim for service connection for migraine headaches in November 2008. In an October 2009 decision, the RO granted service connection for migraine headaches and assigned a 10 percent evaluation. The Veteran subsequently appealed the initial rating assigned to the Board. A review of the treatment records shows that in October 2001 and November 2008, the Veteran was treated with Percocet for migraine headaches by his private physician, Dr. M. In March 2009, the Veteran was afforded a VA examination for his migraine headaches. The Veteran reported that his headaches had worsened since service. He explained that during his migraine headache episodes, he has nausea and vomiting, and sensitivity to light and sound. The Veteran reported being treated with a beta blocker and naprosyn. His response to the treatment had only been fair. The Veteran reported that he has headaches weekly. Later in the examination, the Veteran reported that his headaches occurred every day. The examiner noted that the less than half of the attacks were prostrating and lasted one to two days. In a March 2009 VA treatment record, the Veteran reported that had severe headaches one to two times a week. He was also treated in May 2009 for headaches. The physician noted no major change in the headache pattern. The Veteran reported that he has had headaches for 41 years. In December 2009, the Veteran reported ongoing chronic and intermittent headaches. The Veteran also reported spells of fainting. The physician noted that the computerized tomography (CT) study was "ok". A January 2010 electroencephalogram (EEG) noted normal results in awake and drowsy state. There was no epileptic form activity noted. An April 2010 VA treatment record notes that the Veteran took Percocet daily for chronic pain and headaches which seemed to be working pretty well. There was no real improvement with atenolol. In an August 2010 VA treatment record, the Veteran reported daily headaches and dizziness. The audiologist conducting the examination noted no evidence of peripheral vestibular disorder and that his oculomotor test for visual tracking was abnormal. Also, cerebellar problems needed to be ruled out. The physician further noted that episodic vertigo was suggestive of vestibular migraine and absent prophylaxis for headaches. During a February 2011 VA visit, the Veteran reported that his headaches were tolerable, and he did not want to make medications changes. Also in November 2011, an occipital nerve block was performed. The Veteran reported 42 years of chronic headaches that were worse with stress. He complained of blurry vision and occasionally nausea and vomiting with headaches. The Veteran denied relief from medication. A February 2012 treatment record noted chronic headaches. The physician reported no real improvement with atenolol. In February 2012, the Veteran was afforded another VA examination. The Veteran reported that since the March 2009 examination, the severity of his headaches had worsened. At the time of the examination, the Veteran was being treated with oxycodone for his migraines. The Veteran reported having constant headache pain, pain localized to one side of the head and that the pain worsens with physical activity. During a headache episode, the Veteran has nausea, vomiting, sensitivity to light and sound, change of vision and sensory changes. His headaches would last more than 2 days. The examiner noted that the Veteran had prostrating attacks of migraine headaches more frequently than once per month. The examiner further noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the Veteran did have scars related to his headaches but that they were not painful, unstable or a total area of greater than 39 square centimeters. The examiner opined that the Veteran's headaches impact his ability to work. The Veteran reported that he is unable to work since he was discharged from service in 1974 in part due to the severe headaches. The Veteran would have headaches around mid-day, and they would progressively worsen. The Veteran would have been unable to work if he had been working. In March 2013, the Veteran testified that he had headaches every day. He noted pounding in his head and trouble walking and standing up. He noted that the severe headaches lasted two to three days. He stated that having severe headaches where he needs an ice pack occurred every two to three days. C. Analysis For the period prior to February 9, 2012, the Board finds that the Veteran's service-connected migraine headaches are shown to have been manifested by prostrating attacks occurring on an average once a month over last several months. The March 2009 examiner found that less than half of his headaches were prostrating and noted that they occurred weekly. Later in the examination, the Veteran reported daily headaches, but did not describe those as prostrating. A March 2009 treatment record noted headaches one to two times a week, but did not describe the character or duration of the headaches. Also, the August 2010 VA treatment record noted that the Veteran reported daily headaches, but there was no description of whether the headaches were prostrating or the duration of the headaches. The record indicates that the Veteran has either daily or weekly headaches, but there is little evidence of how many of the headaches are prostrating or the duration of the headaches. Only the March 2009 VA examiner explained that the Veteran had weekly headaches and only half of the headaches were prostrating. In summary, the Veteran apparently was having about two prostrating headaches a month for the period prior to February 9, 2012. Therefore, a 30 percent evaluation is warranted for the entire period prior to February 9, 2012. A higher evaluation is not warranted for this period. A 50 percent evaluation is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As noted above, there is very little evidence during this period prior to February 2012 that indicates whether the Veteran's headaches were prostrating or the duration of the headaches. While the evidence for this period shows that the Veteran experienced very frequent headaches, it does not show that they are prostrating. Therefore, the Board does not find that the Veteran was experiencing very frequent completely prostrating headaches. In addition, a 50 evaluation is assigned when a veteran experiences prolonged attacks. The evidence for the period prior to February 9, 2012 only shows that the Veteran's migraine headaches only lasted one to two days. See March 2009 VA examination report. For these reasons, the Board finds that a 30 percent evaluation, but not higher, is warranted for the period prior to February 9, 2012. For the period beginning February 9, 2012, the Board finds that the maximum 50 percent evaluation is warranted. As noted above, a 50 percent evaluation is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The February 2012 examination indicates that the Veteran's headaches are very frequent prostrating and prolonged. The February 2012 examination report and the Veteran's testimony confirmed that his prostrating headaches last more than two days and occur more frequently than once per month. The Board acknowledges that the Veteran has reported head trauma during service and has noted episodes of passing out. The Veteran filed a claim for traumatic brain injury in November 2009. The RO denied entitlement to service connection TBI with black outs in an April 2010 decision. The Veteran did not appeal this decision. Therefore, the Board will not consider the Veteran's symptoms of passing out in this decision as this symptom was already considered in the April 2010 RO decision. The Board has also considered whether an extraschedular evaluation is appropriate. Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. Under the applicable criteria, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 et. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected migraines are inadequate. A comparison between the levels of severity and symptomatology of the Veteran's migraines with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. In particular, as discussed in detail above, the Veteran's migraine manifested by prostrating attacks occurring on an average once a month over several months prior to February 9, 2012 and his migraines were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability beginning February 9, 2012 - impairments specifically contemplated under Diagnostic Code 8100 for the currently-assigned 30 percent rating and 50 percent rating. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the rating schedule. Since the available schedular evaluations adequately contemplate the Veteran's levels of disability and symptomatology for his service-connected migraines, the second and third questions posed by Thun become moot. For the sake of completeness, however, the Board notes that the Veteran's migraines have not caused hospitalizations; nor has it interfered with his work to a degree beyond that contemplated by his assigned 30 percent and 50 percent ratings, which specifically contemplate the effect on economic adaptability. The Board acknowledges that he has claimed TDIU due in part to his headaches. This issue is addressed in the remand below. In short, there is nothing in the record to indicate that the Veteran's service-connected migraines cause impairment over and above that which is contemplated in 30 percent and 50 percent disability rating that is currently assigned. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. (CONTINUED ON NEXT PAGE) ORDER A 30 percent evaluation is granted prior to February 9, 2012 for service-connected migraine headaches, subject to regulations applicable to the payment of monetary benefits. A 50 percent evaluation is granted beginning February 9, 2012 for service-connected migraine headaches, subject to regulations applicable to the payment of monetary benefits. REMAND Missing records The Veteran claims that he served on active duty in Vietnam. VA has verified active duty from April 1968 to April 1970. Despite this, the Veteran claims that while he served in the Reserves, he was called to active duty. The claims file includes an Honorable Discharge document from the Armed Forces of the United States which shows an honorable discharge on April 1, 1974. Furthermore, a document from the U.S. Army Reserve Components Personnel and Administration Center notes that the Veteran was discharged from the United States Army Standby Reserve on March 20, 1974. The Veteran appears to have served in the military following the verified dates of service indicated by the VA. Although the RO attempted to obtain these records through PIES, further effort should be made to obtain these records, including contacting U.S. Army Reserve Components Personnel and Administration Center. VA must attempt to obtain service treatment records and personnel records associated with this period of service. 38 C.F.R. § 3.159(c)(2). Examination VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. The claims file shows that the Veteran has been diagnosed by a VA psychiatrist with mood disorder, anxiety disorder, and rule out posttraumatic stress disorder (PTSD). The Veteran claims that his current psychiatric disorders are due to his military service. During the March 2013 hearing, the Veteran testified to being involved in a military raid. The Veteran also testified that he served in Vietnam during his military service but that the VA has been unable to verify service in Vietnam. As the evidence shows competent evidence of a current disability that may be associated with service, and because there is insufficient medical evidence to make a decision on the claim, the Board finds that a VA examination is necessary before the issue can be adjudicated. Additionally, disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). During the March 2013 Board hearing, the Veteran reported that his service-connected migraine headaches caused his depression to worsen. An opinion is also needed by a VA examiner as to whether the Veteran's depression is caused or aggravated by his service-connected migraine disability. Notice As the Veteran has raised the issue of secondary service connection for a psychiatric disability, appropriate notice should be provided. TDIU Additionally, the issue of TDIU has been reasonably raised by the record during the February 2012 examination. Crucially, as noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not yet been notified as to how to substantiate a claim for TDIU. As the issue of TDIU has may require further development based on what information the Veteran submits, the Board finds that this issue must be remanded prior to its consideration of the issue. Furthermore, the Board observes that the Veteran's TDIU claim is inextricably intertwined with his claim for entitlement to service connection for depression. In other words, if service connection is granted or denied for the Veteran's depression disorder; such may impact the Veteran's TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. VA treatment records Finally, VA has an obligation under the VCAA to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2012). The Veteran receives regular treatment at VA. Therefore, all relevant VA treatment records that have not yet been associated with the claims file should be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU and a claim for entitlement to secondary service connection (psychiatric disability due to service-connected migraines). Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Attempt to verify the Veteran's claimed period of service from April 1970 to April 1974 by contacting any pertinent department, including contacting the U.S. Army Reserve Components Personnel and Administration Center. Any service treatment records and personnel records available for this period must be associated with the claims file. 3. Obtain and associate with the claims file all identified outstanding records of VA treatment pertaining to the Veteran's service-connected disabilities. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 4. After the above development has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination by a VA psychiatrist or psychologist to ascertain the nature and etiology of any diagnosed psychiatric condition(s), taking into account both medical evidence and lay testimony from the Veteran. The claims file (to include any pertinent evidence in any associated electronic claims folders) must be made available to and reviewed by the examiner, and any indicated studies (to include psychological testing, as appropriate) should be performed. The examiner is requested to offer the following opinions: a. Is it at least as likely as not that the Veteran has an acquired psychiatric disorder, to include PTSD or depression, that is related to the Veteran's military service. b. Is it at least as likely as not that any current psychiatric disorder is due to his service-connected migraine headaches. Please provide a complete explanation for the opinion. c. Is it at least as likely as not that any current psychiatric disorder is aggravated (i.e., worsened) beyond the natural progression by his service-connected migraine disorder. If aggravation is found, the examiner should address the following medical issues to the extent possible: (1) the baseline manifestations of the Veteran's psychiatric disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected migraine disorder. Please provide a complete explanation for the opinion. d. Is it at least as likely as not that the Veteran's psychiatric disability renders the Veteran unable to obtain and/or maintain gainful employment, given his level of education and work history. An explanation for any opinion expressed is required. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After the Veteran's claim for service connection for a psychiatric disorder has been completed, schedule the Veteran for an appropriate VA examination to determine whether a TDIU is warranted. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report. Any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's service-connected disabilities render him unable to obtain and/or maintain gainful employment, given his level of education and work history. The Veteran's age may not be considered, and whether the Veteran was retirement eligible at the time he stopped working is also not relevant in determining whether his current service-connected disabilities are of such severity that it renders him unable to obtain or maintain gainful employment. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. Please provide a complete explanation for the opinion. 6. The Veteran is hereby notified that it is his responsibility to report for any and all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 7. After the foregoing has been completed, readjudicate the Veteran's claims for entitlement to service connection for psychiatric disorders and adjudicate the Veteran's claim for TDIU. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued an appropriate SSOC, and afforded an opportunity 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs