Citation Nr: 1325320 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 08-01 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for a lumbar spine disability, prior to January 18, 2011. 2. Entitlement to an evaluation in excess of 40 percent for a lumbar spine disability, from January 18, 2011. 3. Entitlement to an increased rating for status post vagotomy and pyloroplasty, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and a friend ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to May 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for an increased rating for his service-connected low back and gastrointestinal disabilities. This case was originally before the Board in August 2010, at which time it was remanded for additional development of the record. By rating action dated February 2012, the RO recharacterized his low back disability as degenerative disc disease and spondylosis of the lumbar spine with colostomy, and assigned a 40 percent evaluation effective January 18, 2011. In April 2012, the Board again remanded the claim for additional development of the evidence. The case is again before the Board for appellate consideration. 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. FINDINGS OF FACT 1. Prior to January 18, 2011, the Veteran's low back disability was manifested by forward flexion to 58 degrees. 2. The January 18, 2011 VA examination demonstrated that forward flexion of the lumbar spine was to 10 degrees. 3. There is no evidence of ankylosis of the lumbar spine. 4. The Veteran's status post vagotomy and pyloroplasty is manifested by complaints of abdominal pain and is not more than mild in severity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a lumbar spine disability, prior to January 18, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for an evaluation in excess of 40 percent for a lumbar spine disability, from January 18, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 3. The criteria for a rating in excess of 10 percent for status post vagotomy and pyloroplasty have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The duties to notify and assist were met in this case. Notice was provided in September 2005 and March 2006 letters. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include private and VA medical records, Social Security Administration records, VA examination reports, and the Veteran's testimony at a hearing before the undersigned. VA clinical examinations have been obtained. 38 C.F.R. § 3.159(c) (4). The Board finds that the VA clinical examinations obtained in this case are more than adequate, as they are predicated on a full reading of the medical records in the Veteran's claims file. As appropriate, clinical findings pertinent to the schedular criteria for rating the disabilities at issue were obtained. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. I. Low back disability Under the General Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease: A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assignable for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation may be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Several "Notes" to the new criteria provide additional guidance as to the assigning the appropriate rating: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent evaluation may be assigned. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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. Note 1. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Note 2. When examined by the VA in October 2005, the Veteran asserted he had low back pain that radiated down both sides into the legs. He reported stiffness and weakness. He stated his pain ranged from 6-10/10, and that he had flare-ups two to three times a month, lasting for two or three days. He denied bowel complaints and erectile dysfunction. He did not use a back brace, and while he said he walked with a cane, he walked unaided to the examination. An examination demonstrated the patellar and Achilles reflexes were 2+ and equal in the lower extremities. Repetitions produced pain. The Veteran was tender in the midline, and he had some sciatic notch tenderness. There was no spasm. Range of motion was guarded, and flexin was to 58 degrees, extension was to 10 degrees, and lateral bending was to 8 degrees, bilaterally. Straight leg raising was positive on the left at 40 degrees. The examiner stated it did not appear that the Veteran had any motor or sensory loss. The diagnosis was degenerative joint disease of the lumbar spine with radiculopathy and degenerative disc disease, without herniation. VA outpatient treatment records disclose the Veteran was seen in July 2007. It was noted sensation was intact in the right leg, but deceased in the left leg, except for proprioception, which was intact. Motor strength was 3/4 in the right leg, and 5/5 in the left leg. Patellar and ankle reflexes were 2+ bilaterally. The Veteran's gait was normal. The assessment was low back and leg pain with lumbar radiculopathy. In November 2005, he had slightly decreased sensation to pinprick and vibration in the left lower extremity. Straight leg raising was positive bilaterally, causing pain in the legs and back. A motor examination was 5/5 in the lower extremities. The assessment was chronic back pain radiating down both legs. It was noted that neurosurgery concluded the Veteran was not a candidate for surgical intervention based on magnetic resonance imaging findings. In April 2006, he said his pain ranged from 5-8/10. Range of motion of the lumbar spine was limited in all directions, but the examiner stated little effort was put forth. Strength in the lower extremities was 4- to 4+/5, and he did not put forth effort against resistance. Sensation was intact. The Veteran related he had constant pain down both lower extremities to his feet. He had no bowel or bladder problems. He was tender at the lumbar paraspinals, and there was point tenderness. He had an antalgic gait, and ambulated without a cane. The Veteran was most recently examined by the VA for his spine on January 18, 2011. He reported he had pain every day, including the back of his leg and the bottom of his feet with numbness and weakness. It was noted he had a colostomy bag. He wore a brace without relief, and used a cane. He asserted he had flares three to four times a week, and he was able to do only minimal activity. An examination of the lumbar spine showed no tenderness or spasm. Lateral bending was 0 to 20 degrees on the right and 0 to 10 degrees on the left. Flexion, left lateral bending and right and left rotation were all 0 to 10 degrees. There was pain on all ranges of motion. Straight leg raising was negative, bilaterally. Deep tendon reflexes were 2+ at the knees. Motor strength was 5-/5 throughout the lower extremities. Ankle reflexes were absent bilaterally. Sensation was normal, and there was no atrophy. The entire legs were tender to palpation. The impression was lumbar degenerative disc disease and spondylosis with a colostomy. The issues before the Board are whether a rating in excess of 20 percent is warranted prior to January 18, 2011 and if a rating in excess of 40 percent is appropriate from that date for the Veteran's low back disability. As noted above, in order to assign a 40 percent evaluation based on limitation of motion of the lumbar spine, the evidence has to show forward flexion of the lumbar spine was 30 degrees or less, or favorable ankylosis. A 50 percent evaluation requires unfavorable ankylosis of the thoracolumbar spine. The Board acknowledges that the medical records clearly reflect the Veteran continues to experience low back pain and limitation of motion of the lumbar spine. The fact remains, however, all examinations establish he does maintain at least some motion of the lumbar spine and, therefore, he does not have ankylosis. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's [Illustrated Medical Dictionary], at 86 [(27th ed. 1988]). Coyalong v. West, 12 Vet. App. 524, 528 (1999). Since the October 2005 VA examination reveals forward flexion was to 58 degrees, the examination does not provide a basis on which an increased rating may be assigned prior to January 18, 2011. It is also significant to point out that the examiner indicated there was no motor or sensory loss. The RO assigned a 40 percent evaluation for the Veteran's lumbar spine disability based on the findings of the VA examination conducted on January 18, 2011. At that time, significant limitation of motion of the low back was documented. The 40 percent evaluation represents the maximum evaluation that may be assigned for limitation of motion of the lumbar spine. The Board again emphasizes the examination demonstrated he still had some motion of the spine and, therefore, he does not have ankylosis. Thus, a higher rating based on limitation of motion or ankylosis is not warranted either prior to, or after January 18, 2011. The Board acknowledges some decreased sensation was present when the Veteran was seen in a VA outpatient treatment clinic in November 2005. While the Veteran reported radiating pain in November 2009, straight leg raising was negative and sensory and motor evaluations were intact. In addition, although the January 2011 VA examination showed reflexes were absent in the ankles, sensation was normal, straight leg raising was negative and motor strength was 5-/5. The Board finds, therefore, that the record does not support a separate evaluation for any neurological abnormalities at any time during the pendency of the claim. The Board has also considered whether a higher rating could be assigned based on incapacitating episodes. It is significant to observe that there is no indication in the record that bed rest has been prescribed by a physician for the Veteran's lumbar spine disability. In any event, the Veteran stated during the October 2005 VA examination that when he had a flare-up, he cannot move around. This does not establish he was confined to bed. Similarly, while he reported multiple flares each week on the January 2011 VA examination, he reported he was only able to do minimal activity. In addition, he acknowledged his physician had told him to take it easy, but bed rest had not been directed. The Board concedes the Veteran is competent to report symptoms he experiences, such as pain and limitation of motion, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that his low back disability has increased in severity, so as to warrant a rating in excess of 20 percent prior to January 18, 2011, or a rating in excess of 40 percent from that date. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his low back disability. The Board finds, therefore, that the preponderance of the evidence is against the claim for an evaluation in excess of 20 percent prior to January 18, 2011, or an evaluation in excess of 40 percent from that date for his service-connected low back disability. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran's low back disability. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8, Vet. App. 202 (1995). While it appears that repetitive motion testing was not done on the October 2005 VA examination, the Board finds that any pain the Veteran experiences is contemplated in the 20 percent evaluation that had been assigned. The Board is aware of the holding in Johnston v. Brown, 10 Vet. App. 80 (1997) that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. However, although the Veteran has been in receipt of the maximum schedular disability rating available for the low back based on limited motion since January 18, 2011, it is necessary to consider whether additional functional loss due to pain and weakness on use results in the disability being comparable to ankylosis to the degree warranting a higher evaluation. The Board concludes that it does not. The Board finds that such retained range of motion of the low back is not comparable to ankylosis. II. Status post vagotomy and pyloroplasty The Veteran's ulcer has been rated under 38 C.F.R. § 4.114, DC 7305, specifically applicable to this disability. A 10 percent rating is warranted where duodenal ulcer is mild, with recurring symptoms once or twice a year. A 20 percent rating is warranted for a moderate ulcer disorder with recurring episodes of severe symptoms two or three times per year averaging ten days in duration, or with continuous moderate manifestations. A 40 percent rating is assigned for moderately severe ulcer disease with symptoms which are less than severe but with impairment of health manifested by anemia and weight loss, or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent evaluation is assigned for severe ulcer disease with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. The Board notes that by rating decision dated August 2006, the RO determined that new and material evidence had not been received to reopen a claim for service connection for pancreatitis. In April 2009 and March 2010 rating actions, the RO concluded new and material evidence had not been received to reopen a claim for service connection for gastroesophageal reflux disease. On VA examination in October 2005, the Veteran reported vomiting, hematemesis and melena. He was treated with medication. He claimed he had diarrhea twice a week and constipation three to four times a year. He also stated he had colic, distension, vomiting and nausea three times a week. It was noted there was no weight loss or gain. It was reported there were no signs of anemia. The Veteran was tender in the epigastrium with decreased bowel sounds and guarding. It was concluded he was status post vagotomy and pyloroplasty for duodenal ulcer with gastroesophageal reflux disease. There are extensive VA outpatient treatment records dated from 2005 to 2010 reflecting treatment for abdominal complaints. An esophagogastroduodenoscopy in August 2005 was normal. In October 2006, it was stated the Veteran's problems seemed to stem more from pancreatitis than from gastroesophageal reflux. The diagnoses include gastroesophageal reflux disease, status post gastrectomy for peptic ulcer disease, chronic pancreatitis and gastroesophageal reflux disease. The Veteran was afforded a VA examination for ulcer disease in February 2012. He reported he had surgery for a perforated duodenal ulcer in 1986. He had a history of chronic pancreatitis and continued to have flares. He stated he did well after his surgery until 15 years earlier when he had his first episode of chronic pancreatitis, for which he eventually had surgery in 2008. The examiner noted the Veteran had malnutrition and chronic weight loss due to chronic pancreatitis. He indicated the Veteran had no symptoms or findings associated with the Veteran's vagotomy. The diagnoses were duodenal ulcer, status post vagotomy with pyloroplasty, and chronic pancreatitis. The examiner stated he reviewed the claims folder. He concluded the Veteran had chronic nausea, abdominal pain, weakness, fatigue and anemia. He noted the Veteran had a perforated ulcer in 1986 which required surgery. He observed the Veteran continued to have nausea and reflux symptoms which were treated with medication. He subsequently had chronic pancreatitis starting in 1997, and that even after the 2008 pancreas surgery, he continued to have chronic pain with intermittent severe flares. The examiner commented that one cannot deny the Veteran had peptic ulcer disease and subsequent surgery for a perforated duodenal ulcer. However, one would logically attribute most of his symptomatology to his chronic pancreatitis and subsequent pancreas surgery. While his physicians have treated him with proton pump inhibitors, they have diagnosed him with exacerbations of chronic pancreatitis. An esophagogastroduodenoscopy in 2008 revealed a normal esophagus and a normal duodenum with evidence of Billroth II surgery. The examiner pointed out that the Veteran did not have symptoms for nine years after the initial pyloroplasty and vagotomy surgery in 1986. He noted the Veteran reported he did well until his first bout of pancreatitis. He added the vagotomy had have relieved some of his dyspepsia symptoms. Based on the available evidence, the vast majority of the Veteran's symptoms were related to chronic pancreatitis, which was less likely than not related to his surgery for a perforated ulcer in 1986. In an addendum dated later in February 2012, the examiner commented there was no denying that the Veteran had a history of peptic ulcer disease that resulted in a perforated ulcer and subsequent surgery. He observed the Veteran had years of being symptom-free, until he began with a bout of pancreatitis. Thus, the Veteran's symptoms are overwhelmingly related to his recurrent bouts of pancreatitis. The Board concedes the Veteran is competent to report symptoms he experiences, such as abdominal pain, nausea and vomiting, and the Board finds him to be credible in this regard. The Veteran is not competent to provide an opinion requiring medical knowledge, or a clinical examination by a medical professional, such as an opinion addressing the severity of those symptoms or whether a service-connected disability satisfies specific rating criteria. As a result, his assertions cannot constitute competent medical evidence that his status post vagotomy and pyloroplasty has increased in severity, so as to warrant a higher rating. As such, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his gastrointestinal disability. The Board finds, therefore, that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for status post vagotomy and pyloroplasty. Additional considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's low back and gastrointestinal disabilities are contemplated by the applicable rating criteria. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 20 percent for a lumbar spine disability, prior to January 18, 2011, is denied. An evaluation in excess of 40 percent for a lumbar spine disability, from January 18, 2011, is denied. An increased rating for status post vagotomy and pyloroplasty is denied. REMAND Entitlement to a TDIU is an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Board finds that the assertions made by the Veteran on his substantive appeal submitted in January 2008 raise the issue of whether he is entitled to a TDIU. He claimed he was unable to hold a job due, in part, to the severity of his back condition. In addition, he stated during the January 2011 VA examination of the spine that he had last worked five years earlier due to his back and abdominal pain. Prior to adjudication of the TDIU issue, however, the Board finds that further evidentiary development is necessary. Accordingly, the case is REMANDED for the following action: 1. In light of the newly inferred TDIU claim, complete any development deemed necessary, to include ensuring notice obligations are satisfied. 2. After any applicable development is completed, schedule the Veteran for a VA examination to evaluate the status of the service-connected back disability. The claims folder should be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. 3. The examiner is requested to provide an opinion as to whether the Veteran's service-connected back disability renders him unable to secure or follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, adjudicate the claim of TDIU. If the claim is denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs