Citation Nr: 1322794 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-28 259 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for residuals of compression fracture at L2. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to May 1971. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2006 decision of the RO that, in pertinent part, denied a disability rating in excess of 20 percent for service-connected residuals of compression fracture at L2. The Veteran timely appealed. In April 2011 and in December 2011, the Board remanded the matters for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for an increased rating includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected disabilities render him unemployable. Accordingly, in light of the holding in Rice, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Throughout the rating period, the Veteran's residuals of compression fracture at L2 have been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, and by painful motion and flare-ups, and by kyphotic deformity; ankylosis, incapacitating episodes, and doctor-prescribed bed rest are not demonstrated. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for residuals of compression fracture at L2 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). A decision by the United States Court of Appeals for the Federal Circuit has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific Veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Through March 2006 and April 2011 letters, the RO and AMC notified the Veteran of elements of an increased rating claim and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claim. In the April 2011 letter, the AMC specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim decided on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim decided on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of back pain. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Service connection has been established for residuals of compression fracture at L2. The RO had evaluated the Veteran's disability under Diagnostic Code 5235, pertaining to vertebral fracture or dislocation, as 20 percent disabling based on residuals of painful and limited motion. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Spinal disabilities are primarily evaluated under a general rating formula. Under the formula, a 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher evaluations are assigned for unfavorable ankylosis of the entire spine, or the entire thoracolumbar spine, which are not relevant to the Veteran's claim. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). Alternatively, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the basis of incapacitating episodes over the past 12 months, or under the general rating formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic orthopedic and neurologic manifestations), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The notes following Diagnostic Code 5243 define an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. The notes following Diagnostic Code 5243 further provide that, when evaluating on the basis of chronic manifestations, VA should evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes; and evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. Where intervertebral disc syndrome is present in more than one spinal segment, and provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurological manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. In general, the rating criteria take into account pain and other symptoms. In the case of spine disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule. Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243). Historically, the Veteran sustained an injury to his low back in active service in Vietnam when he climbed a tower and fell backwards about 10-to-12 feet, and landed across the tailgate of a 21/2 ton truck. X-rays taken at the time revealed a compression fracture, and the Veteran was placed on bed rest for 8 days and a limited profile for about two months. Records show that the Veteran no longer can pick up or lift anything heavy, or stay in one position for a long period without becoming stiff. VA treatment records, dated in December 2004, show that the Veteran's low back pain was stable; and the Veteran denied taken any medications for it. In July 2005, he denied any worsening of his low back pain. In December 2005, the Veteran reported still having low back pain at times, and that he took medication for pain as needed. During a March 2006 VA examination, the Veteran reported that his pain had worsened over time. Current symptoms included low back pain, decreased range of motion, pain with motion, and also hip pain. He described the pain as an intensity of 5 or 6 on a scale of 10. The Veteran also reported having weakness, fatigability, limitation of repetitive motion, and lack of endurance; and reported having pain occurring on a daily basis. Precipitating factors were related to activities of daily living, and his back pain improved with rest and medication. The Veteran reported functional impairment; and denied having any bowel, bladder, or erectile dysfunction. He was able to walk approximately one mile without the use of any cane, walker, or wheelchair. The Veteran reported no incapacitating episodes over the past 12 months. He currently took medication for pain and had physical therapy, but no surgery. Examination in March 2006 revealed that the Veteran had a slow, limping gait and a normal posture. Mild paraspinal tenderness was noted. Range of motion of the lumbar spine was to 40 degrees on flexion, to 10 degrees on extension, to 30 degrees on bending to the right and to the left; and to 30 degrees on rotation to the right and to the left. The examiner also noted diffuse muscle spasm, pain with movement, and fatigue with movement. No changes were shown in ranges of motion following repetitive exercises. Motor examination showed full motor strength in his bilateral lower extremities, and sensory examination was intact. Reflexes were 1+ throughout, and a positive Lasegue sign at 40 degrees on the right. MRI scans revealed a chronic compression fracture at L2 with degenerative disc disease and spondylitic changes at L2-L3. Diagnoses were L2 compression fracture and lumbar spondylosis. The examiner opined that the Veteran's current symptoms were related to his in-service injury. VA treatment records, dated in December 2006 and in August 2008, show that the Veteran denied any worsening of his low back pain; and that he continued to take medication for pain as needed. MRI scans conducted of the lumbar spine in April 2009 revealed diffuse degenerative disc disease. Clinical history at the time documented radicular pain and weakness for greater than three weeks that did not respond to conservative therapy. VA treatment records, dated in May 2009, reflect that the Veteran was unable to lift anything or to bend on a regular basis. A neurosurgery consultation at that time revealed that the Veteran's pain was constant, and he was referred for a TENS unit. The assessment was non-operative back pain. In December 2009, the Veteran described worsening back pain, and physical therapy was suggested. Following the Board's April 2011 remand, the Veteran underwent a VA examination in May 2011 for purposes of determining the severity of his residuals of compression fracture at L2. The examiner reviewed the claims file and noted the Veteran's medical history. The examiner revealed that the Veteran described flare-ups every day when trying to lift or trying to stand and walk for prolonged periods. The Veteran described his ability to walk, stand, and work as limited; and reported that he currently worked part-time and felt pain when on his feet. He denied having required bed rest, and denied any bowel or bladder dysfunction. Examination in May 2011 revealed the Veteran's lumbar spine as diffusely tender to palpation, and that the Veteran had a very prominent lower lumbar spinous process. Range of motion of the lumbar spine was to 80 degrees on flexion with pain, to 15 degrees on extension, to 15 degrees on bending to the right and to the left, and to 15 degrees on rotation to the right and to the left. Neither the Veteran's pain nor his ranges of motion changed on repetitive use. Muscle strength was 5/5. The Veteran was sensate to light touch in the L2-L3 dermatomes, and had a palpable dorsalis pedis pulse. He did have a negative straight leg test bilaterally, and a 2+ patellar tendon and Achilles reflexes. X-rays, correlated by MRI scans, revealed height loss of the L2 vertebra, which was chronic in nature; and adjacent degenerative disc disease, as well as kyphosis of the lumbar spine. Diagnoses included status-post L2 compression fracture with residual pain, post-traumatic kyphosis of the lumbar spine, degenerative disc disease of the lumbar spine, and spinal stenosis. The examiner commented that the Veteran's pain and loss of motion could certainly increase after activity. Following the Board's December 2011 remand, the Veteran underwent another VA examination in January 2012. The Veteran reported flare-ups of pain, exacerbated with bending, lifting, and prolonged walking. During flare-ups, the Veteran reported having radiating pain toward the posterolateral aspect of his left hip and weakness of his left hip. Range of motion of the lumbar spine in January 2012 was to 80 degrees on flexion, with pain from 50 degrees; to 10 degrees on extension, with pain from 5 degrees; to 15 degrees on bending to the right and to the left, with pain from 5 degrees; and to 15 degrees on rotation to the right and to the left, with pain from 5 degrees. There were no changes in ranges of motion on repetitive use. The examiner noted functional impairment, including less movement than normal; weakened movement; excess fatigability; and pain on movement. There also was localized tenderness or pain to palpation of the thoracolumbar spine. The examiner indicated that the Veteran had intermittent radicular pain and numbness of the left lower extremity, described as moderate, and involving the L2-L3-L4 nerve roots. No other objective neurological abnormalities were found. The Veteran denied having any incapacitating episodes over the past 12 months, and reported that he used no assistive devices. The examiner opined that the Veteran's pain limited his ability to lift and bend, and impacted the Veteran's ability to work. In this case, throughout the rating period, the evidence shows that the Veteran could flex his thoracolumbar spine beyond 30 degrees; painful motion was noted. Recent X-rays revealed height loss of the L2 vertebra, as well as kyphosis. There were no findings of ankylosis of the spine segment. His disability, thus, does not meet the criteria for a disability rating in excess of 20 percent under the general rating formula. 38 C.F.R. §§ 4.7, 4.21. In this regard, the Board has considered the Court's holding in Deluca. As noted, the January 2012 examiner acknowledged that flexion was limited to 80 degrees, with pain from 50 degrees; extension was limited to 10 degrees with pain from 5 degrees; and bending and rotation were limited to 15 degrees with pain at 5 degrees. However, such limited motion still does not satisfy the criteria for an increased disability rating for a disability of the spine. While the January 2012 examiner noted that the Veteran had pain prior to the point at which motion was limited, pain alone is not functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, VA examiners also found no additional loss of motion on repetitive use. Along those lines, while the Veteran reports increased pain during flare-ups, he does not report any additional limitation of motion as a result thereof. Thus, even with consideration of increased pain during flare-ups, the rating criteria applied take into account pain and other symptoms. The Veteran's reports of his symptoms have been considered and they support the currently assigned evaluation. The evidence as a whole does not show that the criteria for a higher evaluation are approximated. For these reasons, the Board concludes that an increased rating is not warranted based on functional loss due to pain and other symptoms as contemplated by Deluca. The Board further notes that there is no record of doctor-prescribed bed rest. The evidence, therefore, does not show incapacitating episodes throughout the rating period. Hence, there is no basis for a disability evaluation in excess of 20 percent for the Veteran's residuals of compression fracture at L2. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Thus, the weight of the evidence is against the grant of a disability rating in excess of 20 percent, based on orthopedic findings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2012). In addition, the Veteran has described some sensory deficits in the left lower extremity. The January 2012 examiner noted intermittent radicular pain and numbness of the left lower extremity, described as moderate, and involving the L2-L3-L4 nerve roots. Here, specific nerve root pain has been identified. Accordingly, in a June 2012 rating decision, the RO granted service connection and assigned a separate 20 percent disability rating for left lumbar radiculopathy associated with the compression fracture at L2, effective from the date of claim on January 10, 2006. Given that the Veteran's service-connected left lumbar radiculopathy has been evaluated separately by way of a rating decision, such symptoms are not for consideration in evaluating the Veteran's residuals of compression fracture at L2. 38 C.F.R. § 4.14. The Veteran has not reported other neurologic symptoms nor has any other neurologic abnormality been diagnosed. While a VA examiner noted reduced sensation bilaterally, a separate neurologic abnormality associated with the service-connected disability was not diagnosed by the examiner nor was such diagnosed on examination in 2012 following a comprehensive examination. Accordingly, the Board finds that the service-connected disability is not manifested by any other objectively demonstrated neurologic abnormality. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluations assigned for the Veteran's service-connected residuals of compression fracture at L2 are adequate in this case. While the Veteran and examiners have acknowledged some functional impairment in lifting and bending at work, his functional impairment is contemplated by the schedular criteria for disabilities of the spine. The Veteran has not been hospitalized for residuals of compression fracture at L2. In this case, the Board finds that the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. Therefore, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Hence, a preponderance of the evidence is against a disability rating in excess of 20 percent for residuals of compression fracture at L2 throughout the rating period. ORDER A disability evaluation in excess of 20 percent for residuals of compression fracture at L2 is denied. REMAND A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Hence, the Veteran's claim for an increased disability rating for residuals of compression fracture at L2, includes consideration of whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16. The critical question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Service connection has been established for residuals of compression fracture at L2, rated as 20 percent disabling; for left lumbar radiculopathy, rated as 20 percent disabling; for tinnitus, rated as 10 percent disabling; and for bilateral hearing loss, rated as 0 percent (noncompensable) disabling. The combined disability rating is 40 percent. Where the percentage requirements for TDIU benefits under 38 C.F.R. § 4.16(a) are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Consideration is given to the Veteran's background, including his employment and educational history. In this case, records do not indicate whether the Veteran maintains steady employment. He reported working part-time in May 2011 and making $200 each week, and reported working for a carpet company in January 2012. Recent examinations indicate that his service-connected disabilities have a functional impact on his ability to work. His levels of education and any continuing training also are not indicated. The above notwithstanding, in May 2011, the Veteran reported problems he was having with bending and lifting at work and in daily activities; and reported problems with balance and toe tingling, as well as a constant ringing in his ears. He also reported that he worried about his financial future. VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disabilities has on his ability to work. See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for TDIU, that VA has a duty to obtain medical opinions as to employability). In this case, there is no opinion of record regarding the Veteran's ability to retain or maintain any gainful employment that takes into account solely his service-connected disabilities. 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 with regard to substantiating a claim for entitlement to TDIU. This letter should specifically request that the Veteran submit a Veteran's Application for Increased Compensation Based on Unemployability form, or a VA-Form 21-8940. Then take any development action deemed warranted. 2. Obtain recent VA treatment records pertaining to the Veteran's residuals of compression fracture at L2, left lumbar radiculopathy, tinnitus, and bilateral hearing loss, that are not associated with the claims folder or Virtual VA. 3. Afford the Veteran an appropriate VA examination to obtain an opinion as to the impact of the service-connected disabilities on the Veteran's ability to work. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner(s) designated to examine the Veteran, and the examination report(s) should note review of the file. The examiner(s) should interview the Veteran as to his employment and education history. The examiner(s) should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the service-connected residuals of compression fracture at L2; left lumbar radiculopathy; tinnitus; and bilateral hearing loss, preclude employment consistent with the Veteran's education and occupational experience, without taking into account his age or any nonservice-connected disability. The examiner(s) should set forth a rationale for the conclusions reached. 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 service-connected disability, given his current skill set and educational background. 4. After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter that 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs