Citation Nr: 1321485 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 00-15 688 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) from January 14, 2004, to July 6, 2005. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from July 6, 2005, to October 30, 2008. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 30, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision by a VARO. This matter was remanded in June 2003 and January 2008 for further development. A March 2010 rating decision increased the rating for PTSD from 50 percent to 70 percent effective July 6, 2005. The claim was then before the Board in February 2011, at which time the Board denied increased ratings for either time period in question. In a March 2012 Order on a Joint Motion for Partial Remand, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision to the extent that it denied increased ratings for PTSD and remanded the matter for additional development. The Board remanded the matter in August 2012 pursuant to the Court's instructions, to obtain clarification regarding an October 2008 VA examination report. Following an August 2012 VA medical opinion clarification, a March 2013 rating decision granted a 100 percent rating for the Veteran's PTSD effective October 30, 2008 (the date of the VA examination showing that the criteria for a 100 percent rating were met). Therefore, the matter of an increased rating for PTSD from October 30, 2008, is no longer before the Board. The Board also notes that the Board's February 2011 decision remanded the additional issue of TDIU as part of the increased rating claim. Rice v. Shinseki, 22 Vet.App. 447 (2009). However, it appears that the RO had already granted TDIU via an October 2010 rating decision which apparently was in a temporary file and not the claims file at the time of the Board's February 2011 decision in which it remanded the TDIU issue. In other words, the Board's remand directives regarding the TDIU issue are rendered moot by the fact that TDIU had already been granted by the RO. Nevertheless, the RO only granted TDIU effective from April 29, 2010. Since the increased rating claim (of which the TDIU issue was a part per Rice) was prior to this date, the RO's grant of TDIU was only a partial grant of that benefit. The issue of entitlement to TDIU prior to April 29, 2010, has not been addressed on appeal. It is clear from a May 2011 statement from the Veteran that he is seeking TDIU back to 2003. At this point the Board finds that the subsequent grant of a schedular 100 percent rating for PTSD effective from October 30, 2008, renders the TDIU question moot back to that date. Therefore, the remaining TDIU issue is whether TDIU was warranted prior to October 30, 2008. The issue of entitlement to TDIU prior to October 30, 2008, is remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. From January 14, 2004, to July 6, 2005, the Veteran's service-connected PTSD was not manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. 2. From July 6, 2005 to October 30, 2008, the Veteran's PTSD was not manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. CONCLUSIONS OF LAW 1. From January 14, 2004, to July 6, 2005, the criteria for entitlement to a disability evaluation in excess of 50 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9411 (2012). 2. From July 6, 2005, to October 30, 2008, the criteria for entitlement to a disability evaluation in excess of 70 percent for the Veteran's service-connected PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in June 2003, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to participate meaningfully in the adjudication process. The claim was subsequently readjudicated in numerous supplemental statements of the case, most recently in January 2013, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award for PTSD, statutory notice had served its purpose, and its application was no longer required. See Dingess, supra, aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A May 2000 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while a January 2013 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield, supra. Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist VA has obtained service treatment records; assisted the appellant in obtaining evidence; afforded the Veteran VA examinations in March 2003, January 2004, and October 2008; obtained medical opinions as to the etiology and severity of disabilities; and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the appellant has not contended otherwise. Legal Criteria, Factual Background, and Analysis Disability evaluations 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 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. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected PTSD has been rated by the RO under the provisions of Diagnostic Code 9411. Under this regulatory provision, a 50 percent rating is warranted if the Veteran experiences occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted if the Veteran experiences occupational and social impairment, with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his PTSD. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Lesser scores reflect increasing severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. However, the Court further indicated that without those examples, differentiating a 30 percent evaluation from a 50 percent evaluation would be extremely ambiguous. Id. at 442. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that the following analysis of the appropriate ratings for PTSD does not include consideration of symptoms and impairment due to the Veteran's pseudoseizures as this would violate the rule against pyramiding which precludes the evaluation of the same disability under various diagnoses. 38 C.F.R. § 4.14. January 14, 2004, to July 6, 2005 The Veteran's PTSD has been rated 50 percent disabling during this time period. The Veteran underwent an outpatient examination in January 2004. He reported occasional nightmares and intrusive and distressing flashbacks of combat. He also complained of difficulty falling asleep and staying asleep and bouts of anxiety; and he was unable to enjoy activities he enjoyed in the past. He reported an exaggerated startle response. Upon examination, the Veteran was oriented to time, place, and person. He was well dressed and well groomed, with good personal hygiene. He was cooperative, with sad facial expressions. He showed some mild signs of generalized psychomotor retardation such as stooped posture and little animation. His speech was without articulatory deficit but with slowed reaction time. He described his mood as anxious and tense. His affect was constricted. He admitted to intermittent feelings of hopelessness and uselessness. The examiner noted that the Veteran appeared to be overly self-critical, blaming himself for not being able to meet the expectations of people who are important in his life. He denied suicidal thoughts and plans. No auditory or visual hallucinations were appreciated at the time of the interview. All components of memory were grossly intact. He was able to recount history normally. He was aware that he is not functioning up to his potential; and he recognized his need for treatment. He was diagnosed with chronic PTSD and assigned a Global Assessment of Functioning (GAF) score of 55, reflecting moderate symptoms or moderate difficulty in social and/or occupational functioning. The Veteran underwent several outpatient examinations in which his symptoms were similar in type and in degree to those demonstrated on January 2004 examination. He was assigned a GAF score of 55 in February 2004 and May 2004. In July 2004, the Veteran stated that since he began seeing a therapist, his nightmares and flashbacks had been decreasing in frequency and intensity; he was assigned a GAF score of 60. The Veteran was assigned GAF scores of 55, 55, and 51 in October 2004 and December 2004. A January 2005 treatment report shows that the Veteran felt desperate about his current situation. He continued to complain of profound anhedonia, anergia, frequent crying spells, and feelings of worthlessness and helplessness. He also reported that for the first time he had thoughts of hurting himself without any concrete plan. However, the examiner stated that he had no suicidal ideation. The examiner assigned a GAF score of 48. A March 2005 treatment report shows that the Veteran reported less anxiety after an increase of Clonazepam, but he still felt depressed and had low energy; his GAF score at that time was 51. In April 2005 and May 2005, he was assigned GAF scores of 55. In addition to the medical evidence, the Veteran has submitted several lay statements regarding the nature of his symptoms. For example, a June 1997 statement from S.S. (a co-worker) stated that he must make his presence known before approaching the Veteran in order to prevent a dangerous interaction by startling him. A September 2004 correspondence from B.F. (another co-worker) stated that the Veteran would be very jumpy and nervous, he would become startled easily, and he would become entranced. The Board finds all the lay evidence to be both competent and credible. However, based on the overall evidence, the Board finds that a rating in excess of 50 percent is not warranted prior to July 6, 2005. There is no doubt that the Veteran's disability caused some occupational and social impairment. However, he was able to maintain employment (with accommodations made for his disability) until his plant closed down in July 2003. The record also reflects that he remained married and that he had a good relationship with his two grown children. As such, he was able to establish and maintain effective relationships. There does not appear to have been any deficiencies in the Veteran's judgment or thinking. For the most part, the Veteran did not exhibit suicidal ideation. The Board recognizes that the January 2005 treatment report mentioned that the Veteran thought about hurting himself. Although the Board recognizes that the Veteran's symptoms showed a brief increase in severity at that time, he was adequately treated and soon reported feeling less anxiety and depression. The Board finds that prior to July 6, 2005, the Veteran's PTSD did not cause occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); and inability to establish and maintain effective relationships. From July 6, 2005, to October 30, 2008 As noted above, the Veteran underwent regular outpatient treatment examinations. At his July 6, 2005 outpatient examination, he reported increasing nightmares and intrusive daily flashbacks to combat. He also stated that he had been feeling very depressed lately. He cried several times during the interview. He also reported recurring suicidal ideation, and he endorsed several plans. Aggravating factors included the Fourth of July and a talk that he gave to students about the war in Vietnam. The examiner talked with the Veteran and his wife about making a safe plan, but his wife stated that there had been a total lack of communication and she refused to participate in safety plan arrangements. The examiner found that the Veteran suffered from a lack of interest and participation in significant activities, a sense of detachment from others, lack of concentration, hypervigilance, exaggerated startle response, a pattern of interpersonal conflict (especially in intimate relationships), verbally and/or physically violent threats or behavior, and an inability to maintain employment due to authority/coworker conflict or anxiety symptoms. The examiner assigned a GAF score of 25. The Veteran was admitted to the VA hospital and began participating in a treatment regimen. Monthly outpatient treatment reports beginning in January 2006 reflect GAF scores of 50-55. They reflect that the Veteran was alert and oriented with appropriate behavior. He had normal speech. His mood and affect were described as depressed/labile. His thought process was linear, logical, and goal-directed (without any auditory or visual hallucinations). His memory and cognition were intact in all three domains. His insight and judgment were fair and there were no suicidal ideations. The Veteran was admitted to the hospital again for five days in October 2006. He reported that his symptoms had worsened over the previous two years. He reported that over the previous month, he had had crying spells, he isolated himself all the time, he had no energy, and he had difficulty concentrating. He endorsed extreme survival guilt and began crying during the interview when he talked about buddies dying in Vietnam. He reported that he felt so depressed that he started having suicidal ideation with plans to shoot himself. He promised not to carry out his ideations. Upon admission, the Veteran made good eye contact. He was appropriate, cooperative, polite, and communicative. There was no psychomotor agitation or slowing; there were no tics, tremors, or dystonias. His speech was normal. He described his mood as "depressed". His affect was appropriate and congruent. His thought process was linear, logical, and goal-directed. He denied homicidal ideation, hallucinations. His insight and judgment were fair. There was no evidence of poor impulse control. While the Veteran was in the hospital, he was placed on a regimen of medications. When he was discharged, he stated that he felt 75 percent better. He reported fewer nightmares and no suicidal ideation. The examiner assigned a GAF score of 55. The Veteran underwent a VA examination in October 2008. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that he had been married to his wife since 1970, but his PTSD had caused a number of problems in his marriage. He stated that he and his wife almost got into a physical altercation a couple of days prior to the examination because his wife was not understanding and empathetic about his PTSD. She had apparently informed him on many occasions that she would leave him if she had someplace else to go. However, the Veteran also recognized that the only reason he was put together that day was because of his wife. He reported having good relationships with both of his grown children; his son was also a veteran and understood his problems. The Veteran tried to spend quality time with his five grandchildren, although he reported they were starting to realize that something was "wrong" with him. The Veteran reported that his socializing was very limited. His most significant friendship was with a neighbor; otherwise, he did not have any close friends. He stated that when he went out in public, it was a challenge for him to remember that he is not in Vietnam and that the people are not his enemy. He attended church regularly; the people in church knew of his psychiatric problems and allowed him enough social space to feel comfortable. He had not been in any physical altercations in the previous five years. He reported spending time on his farm; he liked riding around on his tractor because it reminded him of life before Vietnam. He expressed sadness and frustration about the fact that his disability had been chronic and the quality of life would not likely improve. He denied any suicide attempts or history of violence/assault. The examiner stated that the Veteran's psychosocial functional status was severely impaired. Upon examination, the Veteran was clean, and dressed appropriately. His speech was clear and coherent; and he was cooperative and attentive. His affect was appropriate. He was depressed and dysphoric. His attention was intact, and he was oriented to person, place, and time. His thought process was unremarkable. His thought content included suicidal and homicidal ideation, paranoid ideation, recurrent nightmares, intrusive memories of combat, flashbacks, and hearing voices of fellow combat soldiers. He understood that he had a problem and the outcome of his behavior. He reported having nightmares almost every night ranging in severity from light to "very drastic". He would wake up frequently during the night and early in the morning and be unable to resume sleep; he estimated getting approximately six hours of sleep per night. He denied having any hallucinations, obsessive/ritualistic behaviors, or inappropriate behavior. The examiner acknowledged the Veteran's documented history of suicidal ideation, planning, and intent, noting that the Veteran's religious beliefs deterred him from acting on them. The Veteran had no episodes of violence and good impulse control. His remote memory was normal, and his recent and immediate memory was mildly impaired. He reported some concentration problems and memory problems that had caused some significant arguments with his wife. He reported being easily distracted during tasks and he had difficulty refocusing. He also reported some difficulty with thinking clearly enough to make good decisions. He made efforts to avoid thoughts, feelings, or conversations associated with trauma; and he avoided activities, places, and people that aroused recollection of the trauma. He reported hypervigilance and exaggerated startle response. The examiner opined that the Veteran's symptoms were worse than in 2003. The diagnoses included chronic PTSD, and recurrent moderate to severe major depressive disorder (MDD). The examiner opined that the MDD was caused by the stress of living with PTSD and assigned a GAF score of 45, which was noted to be indicative of severe impairment in social and occupational functioning and/or severe psychiatric symptoms. Additional treatment records through October 2008 reflect findings largely similar to those noted above. The Veteran's PTSD has been rated 70 percent disabling effective July 6, 2005. The only rating in excess of 70 percent under Diagnostic Code 9411 is a 100 percent rating. In order to warrant a 100 percent rating, the Veteran's disability must be manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The Board finds that a rating in excess of 70 percent is not warranted for the period from July 6, 2005, to October 30, 2008. The Veteran displayed few (if any) of the symptoms enumerated in the 100 percent rating criteria. His disability was not manifested by gross impairment thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The Board acknowledges that the Veteran's PTSD impairment has been undoubtedly quite significant throughout the relevant period. However, the totality of the evidence does not show (prior to October 30, 2008) total occupational and social impairment due to the types of symptoms set forth as examples under the criteria for a 100 percent schedular rating. The evidence shows that although his social life was impaired, he still maintained relationships with his spouse, children, grandchildren. The Board is unable to find that the disability picture prior to October 30, 2008, showed total impairment as required by the diagnostic criteria. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards". 38 C.F.R. § 3.321(b)(1). Rather, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's PTSD symptoms squarely match the type and degree of the examples set forth under the criteria for the current 50 and 70 percent schedular rating. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peake, 22 Vet. App. 111 (2008). The Board therefore finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER Entitlement to a rating in excess of 50 percent for PTSD prior to July 6, 2005, is not warranted. Entitlement to a rating in excess of 70 percent for PTSD from July 6, 2005, to October 30, 2008, is not warranted. To this extent, the appeal is denied. REMAND As explained in the introduction, the issue of entitlement to TDIU prior to October 30, 2008, remains in appellate status. However, it appears that all action on this issue at the RO level ceased after the grant of TDIU from a subsequent date. As a result, this matter has not been readjudicated by the RO in light of additional evidence received, and no supplemental statement has been furnished to the Veteran and his representative. The case must therefore be returned to the RO for appropriate action to ensure due process. Accordingly, the case is hereby REMANDED to the RO for the following actions: The RO should undertake a review of the claims file (to specifically include all evidence received since the October 2010 rating decision which granted TDIU), and make a formal determination as to whether TDIU is warranted prior to October 30, 2008. Unless the effective date of TDIU sought by the Veteran is granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs