Citation Nr: 1323355 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-03 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss prior to February 17, 2010. 2. Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss from February 17, 2010 to October 31, 2012. 3. Entitlement to a disability rating in excess of 70 percent for bilateral hearing loss from November 1, 2012 to the present. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his daughter ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1957 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which continued a 20 percent evaluation for bilateral hearing loss. In October 2008, the Veteran submitted a notice of disagreement (NOD) and subsequently perfected his appeal in January 2010. In March 2013, the Veteran presented sworn testimony during a video conference hearing in Montgomery, Alabama, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In November 2012, the RO increased the Veteran's disability rating for bilateral hearing loss to 40 percent, effective February 17, 2010, and to 70 percent, effective November 1, 2012. Because the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed an NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Since the Veteran perfected his appeal from the September 2008 continuance of the 20 percent disability rating, the Board will address whether he was entitled to a disability rating higher than 20 percent prior to February 17, 2010, whether he was entitled to a disability rating higher than 40 percent from February 17, 2010 to October 31, 2012, and whether he is entitled to a disability rating higher than 70 percent from November 1, 2012 to the present. Therefore, the issue on appeal has been rephrased as shown above. The Veteran is not prejudiced by such recharacterization of the issue. As the Veteran is challenging the disability ratings assigned for his bilateral hearing loss, and the record raises assertions that he is unemployable because of this service-connected disability, the determination as to whether he is entitled to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board has jurisdiction over this matter, the claim for TDIU is remanded to the RO for further development, as discussed more fully below. The issue of entitlement to 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. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. Prior to February 17, 2010, the Veteran's right ear hearing loss had a Numeric Designation of XI as per Tables VI and VIa of the VA schedule of ratings; the Veteran's left ear hearing loss had a Numeric Designation of no greater than III as per Table VI of the VA schedule of ratings. 2. From February 17, 2010 to October 31, 2010, the Veteran's right ear hearing loss had a Numeric Designation of XI as per Tables VI and VIa of the VA schedule of ratings; the Veteran's left ear hearing loss had a Numeric Designation of no greater than V as per Tables VI and VIa of the VA schedule of ratings. 3. From November 1, 2012 to the present, the Veteran's right ear hearing loss has a Numeric Designation of XI as per Tables VI and VIa of the VA schedule of ratings; the Veteran's left ear hearing loss has a Numeric Designation of no greater than VIII as per Tables VI and VIa of the VA schedule of ratings. CONCLUSIONS OF LAW 1. Prior to February 17, 2010, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012). 2. From February 17, 2010 to October 31, 2012, the criteria for a disability rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012). 3. From November 1, 2012 to the present, the criteria for a disability rating in excess of 70 percent for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.16, 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in January 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, the January 2008 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA audiological treatment records from the appeals period, and VA examination reports are in the file. Private treatment records have been obtained to the extent possible. The Board notes that VA has not attempted to obtain additional VA audiological treatment records beyond the single October 2007 record provided by the Veteran. However, there is no indication that any other records, should they exist, would show hearing loss other than as demonstrated in the VA examinations and private audiological evaluation. The Board finds that VA has fulfilled its duty to obtain relevant treatment records. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with VA audiological examinations in February 2008 and November 2012. The examiners considered the Veteran's reported history and provided a thorough examination, including conducting the appropriate audiometric testing. Additionally, the examiners noted the functional effects of the Veteran's hearing loss disability in compliance with Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). As such, the Board finds the VA examinations of record are adequate for determining the disability rating for the Veteran's bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected hearing loss since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Thus, the Board finds that a new VA examination is not necessary at this time. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran has been assigned a noncompensable evaluation under Diagnostic Code 6100 for his service-connected bilateral hearing loss. He seeks a higher rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. See 38 C.F.R. § 4.85 (2012). The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. In this case, all of the audiometric results meet the criteria for the right ear under 38 C.F.R. § 4.86(a). Only the audiometric results from the February 2010 private evaluation and November 2012 VA examination meet the criteria for the left ear under 38 C.F.R. § 4.86(a). As such, the Veteran's right hearing loss can be evaluated under either Table VI or Table VIa and his left ear hearing loss can be evaluated under only Table VI for the October 2007 VA audiogram and February 2008 VA examination and under either Table VI or Table VIa for the February 2010 private evaluation and the November 2012 VA examination. The Board notes that the Veteran has argued that his hearing loss is more severe than is reflected by his 20 percent, 40 percent, and 70 percent evaluations. Although the Veteran is competent to testify as to his observations and lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, in this case, he is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159 (a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the Veteran is clearly competent to describe what he experiences (diminished hearing). He is not, however, able to provide competent evidence as the audiometry or measured level of his hearing loss to support a higher disability rating. The medical evidence includes four audiograms that meet VA criteria for evaluating hearing impairment - an October 2007 VA audiogram, February 2008 and November 2012 VA audiological examinations, and a February 2010 private audiogram. At the time of the October 2007 VA audiogram, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT -- -- -- -- LEFT 40 50 55 65 A speech awareness threshold could not be obtained for the right ear, indicating complete deafness. Speech audiometry revealed speech recognition ability of 0 percent in the right ear and of 88 percent in the left ear. Puretone threshold averages can be assumed to be 105+ decibels for the right ear and were 52.5 decibels for the left ear. When not wearing his hearing aids, the Veteran complained of feeling embarrassed when meeting new people, frustrated when talking to family members, and handicapped by his hearing loss. He also reported difficulty hearing whispers, socializing, and listening to the television or radio. According to 38 C.F.R. § 4.85, the right ear had a designation of XI, based on both Tables VI and VIa, and the left ear had a designation of II, based on Table VI. The point where XI and II intersect on Table VII indicates a disability rating of 10 percent. As noted above, the left ear results may only be considered under Table VI. The Veteran was then afforded a VA audiological examination in February 2008. At that time, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 45 60 60 65 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 84 percent in the left ear. Puretone threshold averages were 105+ decibels for the right ear and 58 decibels for the left ear. The Veteran complained of difficulty with communication in all situations. According to 38 C.F.R. § 4.85, the right ear had a designation of XI, based on both Tables VI and VIa, and the left ear had a designation of III, based on Table VI. The point where XI and III intersect on Table VII indicates a disability rating of 20 percent. As noted above, the left ear results may only be considered under Table VI. The Veteran was then evaluated by a private audiologist in February 2010. The evaluation was conducted by a state-licensed audiologist and included a controlled speech discrimination test using the Maryland CNC list. Accordingly, the private evaluation meets the VA criteria for examination of hearing impairment and may be used to evaluate the Veteran's disability rating. At that time, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 55 65 60 70 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 86 percent in the left ear. Puretone threshold averages were 105+ decibels for the right ear and 62.5 decibels for the left ear. The Veteran complained of difficulty understanding conversation and speech in all communication situations with or without his hearing aids. According to 38 C.F.R. § 4.85, the right ear had a designation of XI, based on both Tables VI and VIa, and the left ear had a designation of III, based on Table VI, and V, based on Table VIa. The point where XI and V intersect on Table VII indicates a disability rating of 40 percent. The Veteran was most recently afforded a VA audiological examination in November 2012. At that time, the puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 105+ 105+ 105+ 105+ LEFT 55 65 70 80 Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 58 percent in the left ear. Puretone threshold averages were 105+ decibels for the right ear and 68 decibels for the left ear. The Veteran complained that he could not understand speech, had trouble hearing in all settings, and needed the television to be loud in order to hear it. The examiner commented that the Veteran's hearing loss impacted the Veteran's ordinary conditions of daily life, including his ability to work. According to 38 C.F.R. § 4.85, the right ear had a designation of XI, based on both Tables VI and VIa, and the left ear had a designation of V, based on Table VI, and VIII, based on Table VIa. The point where XI and VIII intersect on Table VII indicates a disability rating of 70 percent. As the Veteran's hearing loss has been tested on four separate occasions and each occasion resulted in a finding of hearing loss consistent with his present disability ratings, the Board finds that the Veteran's bilateral hearing loss did not warrant a disability rating in excess of 20 percent prior to February 17, 2010, in excess of 40 percent from February 17, 2010 to October 31, 2012, or in excess of 70 percent from November 1, 2010 to the present. The Board notes that the October 2007 VA audiological examination only showed hearing loss that warranted a 10 percent evaluation, not the 20 percent that the RO has assigned for that time period. However, as the 20 percent evaluation has already been assigned by the RO, the Board will not disturb this rating. Additionally, the Board also notes that there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than a currently assigned evaluations during the appeal period. As such, assignment of additional staged ratings is not warranted. See Hart, supra. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a disability rating in excess of those already assigned, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected bilateral hearing loss. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. His audiological testing results fall squarely within Tables VI and VIa of the rating criteria for hearing loss. The Board acknowledges that the examiners indicated that the Veteran had difficulty understanding speech/conversation and communicating and that this results in some functional impairment. However, the Board notes that the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,200 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. Id. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. See 59 Fed. Reg. 17,295 (April 12, 1994). Accordingly, the Board finds that any functional impairment due to hearing loss with regard to speech discrimination is a disability picture that is considered in the current schedular rating criteria. In short, the evidence does not support the proposition that the Veteran's bilateral hearing loss presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case. ORDER Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss, prior to February 17, 2010, is denied. Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss, from February 17, 2010 to October 31, 2012, is denied. Entitlement to a disability rating in excess of 70 percent for bilateral hearing loss, from November 1, 2012 to the present, is denied. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to the adjudication of his claim of entitlement to TDIU. As noted above, in Rice v. Shinseki, the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. See Rice, supra. The Veteran submitted a written statement alleging the basic components of TDIU in November 2010. Additionally, the most recent VA examination report, dated in November 2012, indicated that the Veteran's hearing loss impacts his ability to work. The Veteran further reiterated that he was unemployable due to his service-connected bilateral hearing loss at his March 2013 Board hearing. Therefore, the issue of TDIU is raised by the record and it is properly before the Board. A review of the record shows that further development is needed to properly notify the Veteran of the information necessary to substantiate TDIU claim, and for proper and complete adjudication, including on an extraschedular basis. The law provides that TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). Under the circumstances of this case, the Board notes that since November 1, 2012, the Veteran has a total rating of 70 percent, meaning that he meets the basic eligibility requirements to be considered for a schedular TDIU rating under 38 C.F.R. § 4.16(a). Despite the Veteran's multiple assertions of TDIU, it does not appear that he has not been afforded written notice of the information necessary to substantiate TDIU claim or the appropriate claim form. In order for the Veteran's TDIU to be fully and fairly adjudicated it is necessary that he have the opportunity to provide the information necessary to substantiate the claim. For the reasons described above, the Veteran's claim of entitlement to TDIU must be remanded for a new VA opinion. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with the appropriate notice accompanied by the claims forms necessary to file and complete a TDIU claim. 2. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, such as a VA examination, if necessary, the claim of entitlement to TDIU should be adjudicated under 38 C.F.R. § 4.16(a), and include consideration of whether to submit the claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 3. If the claim remains denied, a statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs