Citation Nr: 1322901 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-40 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for calluses of the bilateral feet. 2. Entitlement to a disability rating in excess of 10 percent for status post arthroscopy of the proximal phalanx, fourth digit, left foot. 3. Entitlement to a disability rating in excess of 10 percent for status post surgery of the right calf for compartmental syndrome, with surgical scar. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from February 1983 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009, September 2009, and June 2010 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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. FINDINGS OF FACT 1. The Veteran's calluses have not manifested by the need for intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more. 2. The Veteran's arthroscopy of the left foot fourth digit proximal phalanx is not manifested by a moderately severe foot injury. 3. The Veteran's right calf compartmental syndrome is not manifested by malunion of the tibia and fibula with marked knee or ankle disability or with deep and nonlinear scars, scars that are superficial and nonlinear covering an area of 144 square inches (929 square centimeters), or three or more scars that are unstable or painful. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for bilateral calluses have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7824 (2012). 2. The criteria for a disability rating in excess of 10 percent for status post arthroscopy of the proximal phalanx, fourth digit, left foot, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5284, 7801, 7802, 7804, 7805 (2007, 2012). 3. The criteria for a disability rating in excess of 10 percent for status post surgery of the right calf for compartmental syndrome, with surgical scar, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Codes 5262, 7801, 7802, 7804, 7805 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, 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). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in September 2008 and March 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Concerning the claim for an increased initial disability rating for the service-connected calluses of the bilateral feet, the Board notes that this is an appeal arising from a grant of service connection in a September 2009 rating decision; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, in the above mentioned letters and other correspondence provided by the RO, the Veteran was notified of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. For the remaining increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, as to the issue of an increased initial disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Also, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the Court has also noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). Calluses & Arthroscopy The Board will address both the Veteran's calluses and arthroscopy together as they both address symptoms of a foot disability and have been consistently examined together. The Veteran's calluses are rated under Diagnostic Code 7824 for diseases of keratinization. Under this regulation, diseases of keratinization with either generalized cutaneous involvement or systemic manifestations, and constant or near-constant systemic medication, such as immunosuppressive retinoids, required during the past 12-month period warrant a 60 percent disability rating. Diseases of keratinization with either generalized cutaneous involvement or systemic manifestations, and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more, but not constantly during the past 12-month period warrant a 30 percent disability rating. Diseases of keratinization with localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past 12-month period warrant a 10 percent disability rating. Finally, diseases of keratinization with no more than topical therapy required during the past 12-month period warrant a noncompensable disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7824. Arthroscopy of the proximal phalanx, fourth digit, left foot, is rated under Diagnostic Code 5284 for other foot injuries. Under that regulation, severe foot injuries warrant a 30 percent disability rating, moderately severe warrant a 20 percent disability rating, and moderate warrant a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran was afforded a VA examination in January 2009. The Veteran reported a history of pain on standing and walking, as well as, swelling and lack of endurance. The examiner noted no swelling, painful motion, instability, or weakness bilaterally. He did find abnormal weight bearing and tenderness. He noted callosities and tenderness to the bottom of the foot. The examiner noted no claw foot. There was thickened skin on the plantar surface with tender callosities and thick deformed nails. The diagnosis was minimal degenerative changes. The examiner indicated a moderate effect on most activities of daily living with decreased mobility and pain. The Veteran was afforded another VA examination in June 2009. At that time, the examiner found painful motion, tenderness, instability, and abnormal weight bearing. The Veteran had guarded movement when being touched, especially in the hyperkeratotic areas. He noted instability due to pain. A VA examination report dated in May 2010 shows that the examiner noted there was no evidence of painful motion, swelling, instability, weakness, or other. There was evidence of tenderness and abnormal weight bearing. A VA examination report dated in August 2010 shows that the examiner reviewed private treatment records, VA treatment records, and recorded the Veteran's lay history. The examiner noted evidence of painful motion, tenderness, instability, and abnormal weight bearing. There was no swelling or weakness. The Veteran walked with a slow and deliberate gait. Private and VA treatment records both show continuous complaints of pain with walking and tenderness to the bottom of the feet. The evidence does not show treatment with systemic medication for six weeks or more. To receive an increased disability rating for calluses the evidence must show either generalized cutaneous involvement or systemic manifestations, and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more, but not constantly during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7824. To receive an increased disability rating for arthroscopy of the proximal phalanx, fourth digit, left foot, the evidence must show a moderately severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The evidence of record does not show intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more. The private physician in September 2008 provided cream to the Veteran and trimmed the calluses. He was subsequently treated with salicylic acid. Additionally, the evidence does not show any left foot disability related to arthroscopy of the left foot fourth digit proximal phalanx. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. As such, the medical findings on examination and in the treatment records are of greater probative value than the Veteran's allegations regarding the manifestations and severity of his multiple foot disabilities. The Board must also consider whether a separate rating is warranted for the Veteran's scar. The Board notes that the regulations related to the rating of scars were revised effective October 23, 2008. However, these changes apply only to applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008) unless the claimant specifically requests otherwise, which he did not in this case. Accordingly, because the Veteran's claim regarding the arthroscopy of the left foot fourth digit proximal phalanx was received prior to October 23, 2008, and he did not specifically request consideration under the revised criteria, the revised criteria are not for application in this case. Under Diagnostic Code 7801, to receive a compensable disability rating for scars of the foot, the scars must be deep or cause limitation of motion and cover an area exceeding 6 square inches. 38 C.F.R. § 4.118 (2007). If the scars are superficial, a 10 percent rating is warranted if the scars cover an area of at least 144 square inches, are unstable, or painful on examination. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7803, 7804 (2007). Scars that cause limitation of function are rated based on the impairment of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Veteran's scar of the left fourth toe measured one centimeter in diameter, covered less than 6 square inches, was not painful, showed no signs of skin breakdown, was superficial, had no inflammation, no edema, and no keloid formation. It also had no other disabling effects. Therefore, the Board concludes that a separate disability rating for a scar of the fourth left toe is not warranted. The Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained relatively constant throughout the course of the period on appeal, and there appears to be no identifiable period of time during which the respective disabilities warranted a rating disability higher than 10 percent. Accordingly, the Board finds that the preponderance of the evidence is against the claims for an initial disability rating in excess of 10 percent for calluses of the bilateral feet and a disability rating in excess of 10 percent for arthroscopy of the left foot fourth digit proximal phalanx. Right Calf The Veteran's right calf compartment syndrome is rated under Diagnostic Code 5262 for impairment of the tibia and fibula and under Diagnostic Code 7804 for unstable or painful scars. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent disability rating. Malunion with moderate knee or ankle disability warrants a 20 percent disability rating. Malunion with marked knee or ankle disability warrants a 30 percent disability rating. Nonunion of the tibia and fibula with loose motion requiring brace warrants a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Board again notes that the regulations related to the rating of scars were revised effective October 23, 2008. As in the present instance, these changes apply only to applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008) unless the claimant specifically requests otherwise. Accordingly, because the Veteran's claim was received after to October 23, 2008, the revised criteria are applied in this case. Under the reviewed criteria, scars not of the head, face, or neck, that are deep and nonlinear, covering an area of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters), scars that are superficial and nonlinear covering an area of 144 square inches (929 square centimeters), and three or four scars that are unstable or painful each warrant a 20 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. The Veteran submitted his claim for an increased disability rating in February 2010. The only medical evidence addressing the Veteran's calf during this time period is a May 2010 VA examination. At that time, the examiner noted the Veteran's history, and that he had reported symptoms of pain, fatigability, and tenderness to the scars. Physical examination revealed a scar on the medial calf measuring 18 by 3.3 centimeters that was painful or tender to touch and adherent. A scar on the lateral right calf measuring 11.8 by 2.6 centimeters was also noted. That scar was also adherent and painful or tender to touch. The examiner found no muscle injury, nerve damage, tendon damage, bone damage, muscle herniation, loss of deep fascia or muscle substance, or any limitation of motion of any joint. In his January 2011 substantive appeal, the Veteran remarked that he was not satisfied with the examination, noting that he wanted X-rays taken. The Board notes that the examiner during the May 2010 examination reviewed multiple X-rays of the knee and feet. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. As such, the medical findings on examination are of greater probative value than the Veteran's blanket statement that he should receive 20 percent for his calf disability. The Veteran has presented with two painful or tender scars covering an area of only 90.08 square centimeters. The evidence has not shown malunion with marked knee or ankle disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a disability rating in excess of 10 percent for right calf compartment syndrome. Extra-schedular Consideration Finally, the Board finds that the Veteran's feet and calf disabilities do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's feet and calf disabilities is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER An initial disability rating in excess of 10 percent for calluses of the bilateral feet is denied. A disability rating in excess of 10 percent for status post arthroscopy of the proximal phalanx, fourth digit, left foot, is denied. A disability rating in excess of 10 percent for status post surgery of the right calf for compartmental syndrome, with surgical scar, is denied. REMAND The Veteran asserted in September 2008 that his painful feet prevent him from maintaining employment. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the evidence suggests that the Veteran is unemployed due, at least in part if not altogether, to symptoms of his service-connected foot disabilities. Accordingly, the issue of entitlement to a TDIU has been raised by the evidence of record in this case. While the Board has jurisdiction over such issue as part and parcel of the Veteran's disability rating claim, further development is necessary for an appropriate adjudication of the TDIU aspect of such claim. On remand, the RO should conduct all appropriate notification and development, to include providing the Veteran with proper notice obtaining any pertinent outstanding treatment records, and affording the Veteran a VA examination so as to determine whether the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. After all appropriate development has been completed the Veteran's TDIU claim must be adjudicated. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation as to the information or evidence needed to establish a claim for a TDIU. 2. The RO/AMC shall request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any additional evidence, not already of record, which pertains to the claim of entitlement to TDIU. Document all unsuccessful attempts to obtain such records. 3. The RO/AMC shall notify the Veteran that he may submit statements from himself and others who have observed the Veteran describing their impressions of the impact of service-connected disabilities on his ability to work. 4. The RO/AMC shall afford the Veteran an appropriate VA examination so as to determine the combined impact his service-connected disabilities have on his ability to obtain and maintain gainful employment. The Veteran's claims file and a copy of this Remand must be provided to the examiner in conjunction with the examination of the Veteran. All testing deemed necessary by the examiner must be undertaken. The examiner is requested to specifically consider the Veteran's level of education and employment experience as well as his reports regarding his symptoms. The examiner is requested to provide an opinion as to whether the Veteran's service-connected disabilities would prevent him from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner must provide detailed reasons for the opinion offered. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 5. The RO/AMC will then readjudicate the Veteran's claim. In doing so, the RO/AMC must specifically consider whether the Veteran's claim for a TDIU should be referred to the Under Secretary for Benefits or the Director of Compensation and Pension for extra-schedular consideration. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs