Citation Nr: 1320624 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-10 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for ulnar nerve pathology of the right elbow, rated as 30 percent disabling prior to September 29, 2010. 2. Entitlement to an increased rating for ulnar nerve pathology of the right elbow, rated as 40 percent disabling since September 29, 2010. 3. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran had active service from November 1969 to March 1970 and again from April 1973 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating in excess of 30 percent for ulnar nerve pathology of the right elbow. By rating decision of July 2012, the Veteran's 30 percent rating for ulnar nerve pathology of the right elbow was increased from 30 percent to 40 percent, effective September 29, 2010. The United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Therefore, these issues are still in appellate status. In August 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. In February 2012, the Board remanded the instant claim for further development. The issue of entitlement to TDIU being remanded 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. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. For the period prior to September 29, 2010, the Veteran's ulnar nerve pathology of the right elbow was productive of ulnar nerve impairment manifested by no more than moderate incomplete paralysis of the ulnar nerve. 3. For the period since September 29, 2010, the Veteran's ulnar nerve pathology of the right elbow is productive of ulnar nerve impairment manifested by no more than severe incomplete paralysis of the ulnar nerve. CONCLUSIONS OF LAW 1. For the period prior to September 29, 2010, the criteria for a rating in excess of 30 percent for ulnar nerve pathology of the right elbow have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.3 , 4.7, 4.124a, Diagnostic Code 8516 (2012). 2. For the period since September 29, 2010, the criteria for a rating in excess of 40 percent for ulnar nerve pathology of the right elbow have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.3 , 4.7, 4.124a, Diagnostic Code 8516 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by letters sent to the Veteran in August 2005 and March 2006. These letters fully addressed the notice elements. The letters advised the Veteran of the information required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The March 2006 letter informed the Veteran of how VA determined disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet.App. 473, 490-91 (2006) aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The matter was readjudicated in a August 2011 supplemental statement of the case. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA 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). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseski v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. This notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, VA treatment records, and private treatment records with the claims file. The Veteran's extensive Virtual VA file has been reviewed as well. No outstanding evidence has been identified. The Veteran was afforded multiple VA examinations in connection with the claim. The matter was remanded in March 2010 for the purpose of affording him an examination that addressed his neurological complaints. His most recent examination of September 2010 was thorough and adequate upon which to base a decision. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran; and, along with his July 2010 examination, the reports provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. Some discussion of the Veteran's August 2008 travel board hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified during the hearing. The nature and severity of his disability was discussed in order to address the severity of his service-connected disorder. Finally, the Board observes that the Veteran reported during his August 2008 Travel Board hearing, that he was not receiving Social Security disability benefits. Since that time, the Veteran began receiving Social Security disability benefits in December 2011. A statement from the Social Security Administration indicated at that time that the Veteran was receiving benefits as a result of his chronic ischemic heart disease, for which he is not service connected. Therefore, the medical records used by the Social Security Administration are not pertinent to the issue currently before the Board and need not be obtained. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). Increased Rating 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 shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). When the appeal arises from an initial rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may also be appropriate in increased rating claims, as in this case, if distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When, an increased rating for an already established service-connected disability is at issue, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has reviewed all of 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, the extensive evidence of record. Indeed, the United State Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). By rating decision of February 2001, service connection for ulnar nerve pathology of the right elbow was granted. A 30 percent rating was awarded, effective October 1992. In July 2005, the Veteran filed a claim for an increased rating. By rating decision of October 2006, the 30 percent rating was continued. By rating decision of July 2012, the Veteran's 30 percent rating was increased to 40 percent, effective September 29, 2010. This rating has been in effect since that time. The Veteran asserts that his ulnar nerve pathology of the right elbow is more severe than the current evaluations reflect. He claims that he has ongoing pain and decreased strength in his right arm. He states that he has limited feeling in his fingers of the right hand and that this limits his ability to hold objects. The Veteran's ulnar nerve pathology of the right elbow disability is rated under 38 C.F.R. § 4.71a, DC 8516 for paralysis of the ulnar nerve. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand will be considered dominant. The injured hand or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. Throughout the medical evidence, the Veteran has continuously been noted to be right-handed. His right arm is thereby his major extremity. Under Diagnostic Code 8516, a 10 percent rating is warranted for mild incomplete paralysis of the ulnar nerve of the major upper extremity. A 30 percent rating requires moderate incomplete paralysis of the ulnar nerve of the major upper extremity. A 40 percent rating requires severe incomplete paralysis of the major upper extremity. A 60 percent rating requires complete paralysis of the major upper extremity with "griffin claw" deformity due to flexor contraction of the ring and little fingers, very marked atrophy in the dorsal interspaces and the thenar and hypothenar eminences, loss of extension of the ring and the little fingers, an inability to spread or reverse the fingers, an inability to adduct the thumb, and weakened wrist flexion. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2012). The term "incomplete paralysis" used in reference to evaluation of peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2012). The Veteran underwent a VA examination in August 2005. At the time of the examination, the Veteran was unemployed for one year. He stated that he quit his job because he was unable to perform his job duties. He was a heavy equipment mechanic and truck driver. He related that his right hand was giving out on him and he was dropping his tools. His right hand was going numb and he was losing grip strength. He had pain from his mid upper arm down to his fingertips. He stated that his whole right arm was sore. At the time of the examination, he was taking Tylenol and Tramadol. He related that his right arm pain was present 100 percent of the time and was at a level 8/10. Moving or using the arm increased the pain to a level 10/10. Using the Tramadol reduced his right arm pain 20 percent. He stated Tylenol provided no relief. He also indicated that when taking Ibuprofen, it provided little relief. He discontinued Ibuprofen due to GI complaints. He reported flare-ups to a level 10/10 on a daily basis. He reported tenderness at the hand and the elbow inner aspect up to the axillary area. He reported weakness of the right hand. His right arm began tingling 4 to 5 months prior to the examination. The tingling occurred whenever he engaged in any type activity with the right arm. His right arm pain interfered with his bathing and getting dressed. He had difficulty starting the lawnmower, repairing brake shoes or brake drums, using air guns or air tools, working on transmissions, or shifting a gear shift in a truck. Physical examination of the right elbow showed no redness, warmth, or effusion of the right elbow. There was a 1.5 cm prominence near the medial epicondyle that was very tender to touch. He also had tenderness in the lateral epicondyle. There was no tenderness over the olecranon process. He had 130 degrees of elbow flexion and 0 degrees of elbow extension. With repetitive range of motion, the pain increased to a level 4/10 in the inner aspect of his right elbow. There was no increased weakness, decreased endurance, or incoordination following repetitive range of motion. The diagnosis was ulnar pathology of the right elbow associated with fracture of the right hand. He had residual tingling in the right forearm with decreased strength. His right elbow was described as unremarkable. VA outpatient treatment records from August 2006 to January 2007 were associated with the claims folder and reviewed. In August 2007, the Veteran was seen in the neurology clinic. He had no motor weakness in the ulnar distribution of the hand. He had pain that radiated to his 4th and 5th fingers. It was described as moderately severe. Physical examination of the right hand showed power of 5/5 of the hand muscles. There was some decreased sensation in the distal ulnar distribution of the right hand to light touch. The assessment was neuropathic pain in the right hand secondary to ulnar nerve injury. In December 2006, the Veteran was seen again in the neurology clinic. He complained of severe pain in the distal ulnar forearm involving hypothenar 4th and 5th fingers. There was also associated tenderness, swelling, and redness in the same distribution. He was tried on a number of medications and none were helpful. Physical examination showed 5/5 strength throughout. Muscle bulk was normal. Sensory examination was significant for decreased sensation to light touch, pinprick, and cold temperature in the ulnar distribution on the right. Vibration was normal. There was no change in skin coloration or temperature. His medication was discontinued and he was prescribed Pregablin. It was noted that if increased levels of this medication did not work, he would be referred to the Pain Clinic. In January 2007, the Veteran's wife contacted the Veteran's primary care physician to indicate that the medication prescribed in December 2006 (Pregablin) made the Veteran's feet and legs cold. It was noted that a referral to the Pain Clinic would be made. The Veteran and his spouse testified before the undersigned VLJ at a Travel Board hearing in August 2008. The Veteran stated that his right elbow condition had worsened over the years and that as a result he was becoming more dependent on the use of his left hand. He testified that his right hand opens and quits. He stated that he dropped tools, fork when eating, and the telephone. This condition happened for approximately 15 to 20 minutes and then his right hand would come "back to life." He also testified that he was very limited in the use of his right hand and was unable to do any overhead work. He indicated that he used his left hand 90 percent of the time and that he had tingling and numbness on the right all the time. When he bumped his right elbow, the pain was very intense. He also related that he went to therapy, but it was determined that there was nothing that could be done for his condition except to provide pain medication. He also stated that he now had to use his left hand to write. His spouse indicated that he could not screw in a light bulb. The Veteran did indicate that he was able to spread his fingers. At the time of the hearing, he was not working and he was not provided Social Security Disability benefits. The Veteran underwent a VA examination in July 2010. He reported similar complaints as made in the past as to his inability to hold items, inability to use tools or screw in a light bulb. Physical examination revealed the Veteran did hold his right arm appearing to have discomfort in that area. Examination of the right elbow and right forearm showed no redness, warmth, or effusion in the right elbow. He did have tenderness with palpation which was exquisite. There was tenderness to palpation of the right wrist and right ring finger. Right grip strength was 3-4/5. Sensation was diminished to right ring finger. Range of motion of the right elbow was flexion to 100 degrees, with pain, 90 degrees of supination with pain, and 70 degrees of pronation with pain. The Veteran felt that repetitive range of motion would be too painful, so it was not performed. At the end of the examination, he was in exquisite pain. He leaned his right forearm on the sink which was cold to touch in order to help alleviate discomfort. The pertinent diagnosis was ulnar nerve pathology of the right elbow with residual pain, numbness, and tingling radiating down the forearm to the hand with weakness. The Veteran underwent a VA examination 0n September 29, 2010. He described having significant pain in his right upper extremity, both proximally and distally, significantly limiting his use of the right upper extremity. Physical examination revealed motor strength of 5/5, with examination limited by discomfort in his right upper extremity. He had weakness of the ulnar innervated nerves in his right hand. He did not have complete paralysis with Griffin claw, as he did have some preserved strength. There was no marked atrophy of hypothenar, thenar, or interossei muscles. Flexion of the wrist was normal with no contractions. He could spread the fingers, although this was weak. There was also decrease of sensation by 50 percent of the ulnar aspect of the dorsum of the hands and by 25 percent when compared to the thenar. This was more likely than not related to his previous ulnar nerve injury although the worsening related to diabetes would be difficult to exclude. At the time of the examination, there was clinical evidence of right ulnar nerve injury, with the most significant symptom being the pain, and less extensive weakness without significant muscle atrophy. The description of the pain was mostly suggestive of a complex regional pain syndrome, probably triggered by initial nerve injury. There was no loss of ability to spread the fingers. Weakness was present and in combination with discomfort, dexterity was also significantly limited. VA outpatient treatment records and Virtual VA files were reviewed. A February 2011 EMG and nerve conduction study of the right upper extremity showed mild abnormality. The EMG was consistent with borderline ulnar nerve neuropathy, focally around the right elbow. In May 2011, the Veteran was referred to the hand doctor and to occupational therapy. In October 2011, there was no sign of denervation. He was seen for an occupational therapy consultation. He was given neoprene elbow supports for use as needed throughout the day. He was also scheduled to receive cubital tunnel elbow splints during his next visit. Based on the evidence of record, and even with full consideration of the Veteran's complaints of pain and functional loss, the Board finds that a rating in excess of 30 percent for ulnar nerve pathology of the right elbow is not warranted for the period prior to September 29, 2010. The Board emphasizes that it has considered the Veteran's complaints of pain and functional loss, and that he has exhibited complaints of pain every day. The VA examinations of record prior to September 2010 indicated that the Veteran experienced pain in the area of the right elbow. Given the fact that the reports of these examinations showed relatively normal neurological examination but for decreased sensation, there is little to suggest that the Veteran experienced any neurological deficits related to his right ulnar nerve disability other than his subjective complaints. Thus, in the Board's opinion, the medical evidence of record shows no more than moderate disablement due to his right ulnar nerve for the period prior to September 29, 2010. Therefore, a 30 percent rating is warranted for the Veteran's ulnar pathology of the right elbow for this time period. Additionally, the Board finds that for the period since September 29, 2010, the evidence has not shown disability warranting more than the 40 percent rating provided at that time. The September 2010 VA examination showed the Veteran had exquisite pain in the right elbow area and some weakness. However, the examiner clearly indicated, in pertinent part, that the Veteran did not have evidence of Griffin claw deformity, there was no atrophy in the dorsal interspace, and thenar and hypothenar eminence. Moreover, there was no loss of ability to spread his fingers. These are requirements to show complete paralysis of the ulnar nerve, necessary to warrant a 60 percent rating for a dominant extremity. Therefore, a 40 percent rating was an appropriate rating for his ulnar nerve pathology of the right elbow, from the period since the September 29, 2010 VA examination. The Board has considered the Veteran's statements that his ulnar nerve pathology of the right elbow disability is worse. He asserted, in essence, that he warranted an increased rating for this disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran has not been shown to possess the competence to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's ulnar nerve pathology of the right elbow disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the Veteran's ulnar nerve pathology of the right elbow disability is evaluated. The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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." Id. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The evaluation of the Veteran's ulnar nerve pathology of the right elbow disability was applied to the applicable rating criteria and case law. The Board fully explained why higher ratings are not warranted for his ulnar nerve pathology of the right elbow disability prior to and since September 29, 2010. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's ulnar nerve pathology of the right elbow disability includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis for this disability is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a rating in excess of 30 percent prior to September 29, 2010, for ulnar nerve pathology of the right elbow, is denied. Entitlement to a rating in excess of 40 percent since September 29, 2010, for ulnar nerve pathology of the right elbow is denied. REMAND The Court has held that a request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, the Veteran indicated, in pertinent part, during his August 2005 VA examination, that he quit his job and could not work as he could not do his job duties because of his right ulnar nerve disability. Consideration of the issue of a TDIU is thereby warranted. Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action, required by the VCAA is completed. In particular, the RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for TDIU. 2. Thereafter, and following any additional development deemed warranted, to include a VA examination if necessary, adjudicate the issue of entitlement to a TDIU. If a VA examination is necessary, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities, in whole or in part, prevent him from performing substantially gainful employment. The RO/AMC must also consider whether the Veteran's claim for a TDIU warrants referral to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 4.16(b), for assignment of an extraschedular rating. 3. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The Veteran 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs