Citation Nr: 1325653 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 11-05 396 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). (The issues of entitlement to an initial rating for irritable bowel syndrome (IBS) in excess of 10 percent prior to May 6, 2011, and in excess of 30 percent thereafter, and for entitlement to an effective date earlier than January 10, 2007, for the grant of service connection for IBS, are addressed in a separate decision under the docket number 07-28 752.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1997 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Sioux Falls, South Dakota RO. In that decision, the 30 percent rating in effect for PTSD was confirmed and continued. A videoconference hearing was held in April 2012 before the undersigned Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In May 2012, the Board remanded the claim for a rating in excess of 30 percent for PTSD for additional evidentiary development, to include a contemporaneous psychiatric examination. The claim has now been returned to the Board for further appellate consideration. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Virtual records reflect notations by VA examiners that the Veteran was unemployed. For example, in February 2012, the Veteran was noted to be unemployed but said he was told that he would undergo some testing for possible employment. In April 2012, he said that he did some mowing for his apartment manager, but was still looking for employment through job services. In an April 2012 statement, his mother asserted that the Veteran was unemployable due to his psychiatric and irritable bowel syndrome (IBS) symptoms. When examined by VA in July 2012 and again in October 2012, it was noted that the Veteran continued to be unemployed. In a July 2013 (virtual) brief, the Veteran's representative pointed out that the claimant was socially and occupationally impaired. He added that he was unemployed. Under the circumstances, and in keeping with the Court's guidance, the Board finds that the TDIU issue has been raised and is a viable claim. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's increased rating claim, it has been listed on the first page of this decision and will be remanded for clarification and additional action if appropriate. Thus, the claim for a TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. As noted on the tile page of this decision, the issues of entitlement to an initial evaluation for IBS in excess of 10 percent prior to May 6, 2011, and in excess of 30 percent thereafter, and entitlement to an effective date earlier than January 10, 2007, for the grant of service connection for IBS, are addressed in a separate decision under docket number 07-28 752. FINDING OF FACT The Veteran's PTSD is productive of a disability picture which more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in September 2007 and July 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records to include Social Security Administration (SSA) records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The appellant was afforded the opportunity to testify before the undersigned VLJ in April 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the undersigned essentially elicited testimony necessary to determine the nature of the appellant's claim regarding a higher rating for his service-connected psychiatric disorder. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including STRs. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.3 (2012). DC 9411 - PTSD The Veteran's PTSD is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, which provides as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.-100 percent Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.-70 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. - 50 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).-30 percent The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2012). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). Global Assessment of Functioning Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Background and Analysis The Veteran served in the Republic of Vietnam and was awarded numerous awards and commendations reflecting that his service included combat. Post service private and VA records reflect treatment for psychiatric symptoms as early as 2004. Possible PTSD was noted in 2004, and a definite diagnosis of PTSD was indicated in mid 2005. When seen in at VA in August 2005, it was noted that the Veteran faced a number of post service stressors, to include issues with his ex-wife, employment, and child support payments. When examined by VA in September 2005, he said that he avoided crowds and startled easily to loud noises. He was on medication for anxiety and depression. He had thought of war on a daily basis and avoided hearing news reports. He avoided thoughts or feelings about the war. He complained of irritability and anger and had difficulty concentrating. There was some social withdrawal, but he reported that he had a good relationship with his fiancé and his children. On exam, the Veteran was alert with appropriate motor behavior. His eye contact was intermittent, and his dress was slightly disheveled. His mood was slightly angry, and his mood was constricted. His thoughts were vague but logical. He denied hallucinations, but said that once per week, a voice told him to make everything secure. His memory was good as was his attention and concentration. The diagnoses included anxiety and depression, and notation that most of his symptoms were at least as likely as not related to his combat experiences. His GAF score was 60. Private treatment records dated from 2005 through 2007 reflect treatment for psychiatric complaints, diagnosed as dysthymia and PTSD. Numerous lay statements dated in 2007 attesting to the Veteran's psychiatric problems are of record. VA treatment record from 2007 through 2010 reflects that the Veteran continued to take his psychiatric medications. Additional VA examination was conducted in August 2010. At that time, the Veteran reported that he continued to have intrusive and distressing thoughts related to past events during service. He had nightmares and flashbacks where he woke up in a cold sweat. He avoided people, particularly large crowds. He reported numbing of general responsiveness, and feeling afraid, and the inability to express emotions. He felt detached from others. He did not have many friends, and he felt socially isolated. He reported some irritability and outbursts of anger. There was some difficulty with concentration, and he said that he was hypervigilant and always on guard. He did not think his occupational functioning had been effected by his psychiatric symptoms. On physical exam, the Veteran was alert and fully oriented. He was cooperative and had good eye contact and a neutral attitude. His mood was flat, and his affect was euthymic without dysphoria, anxiety, irritability, or euphoria. His speech was coherent with normal rate rhythm, and tone, without any pressuring. His thought processes were logical, organized, and goal-directed without any loosening of associations or flight of ideas. He denied hallucinations, and his sensorium was clear. There was no impairment in immediate, short term, or long term memory. His attention and concentration were intact. He had appropriate fund of knowledge, intelligence, and abstract thinking. His insight and judgment were intact. His GAF score was 55 to 60. The diagnosis was PTSD. At the April 2012 personal hearing, the Veteran testified in support of his claim for an increased rating for PTSD. He said that his symptoms included avoidance of crowds and sleep disturbance. (Hearing (Hrg.) transcript (tr.) at pg. 3.) He had recurring dreams and panic attacks. (Tr. at pgs. 4-5.) He had daily thoughts of suicide but had not planned on taking the next step. (Tr. at pg 6.) He felt that his symptoms had increased in severity. Tr. at pg. 9.) Additional VA psychiatric evaluation was conducted in July 2012. The examiner noted that the claims file was reviewed. Following examination of the Veteran, she opined that he had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during period of significant stress. His symptoms were controlled by medication. His history of anxiety and chronic sleep impairment was noted. The GAF score was 60. VA virtual records dated through October 2012 show that the Veteran continues to be seen for his psychiatric symptoms. He continues to take medication and is still unemployed. There is no question that the Veteran's PTSD results in some social and occupational impairment. However, after carefully reviewing the evidence of record in light of the regulatory rating criteria, the Board is compelled to conclude that the current 30 percent rating accurately reflects the demonstrated symptoms and impairment. Although the symptoms set for in the rating criteria are examples of the type and degree of symptoms that would justify a particular rating, the evidence in this case clearly paints a picture of an individual whose PTSD symptoms are most in keeping with those listed for a 30 percent rating. In this regard, the record shows only mild impairment in occupational and social settings. There are no reports of problems with his self care, and while he does suffer some sleep disturbance, depression, anxiety, there is no indication of memory loss. His thoughts are organized and goal-directed without any loosening of associations or flight of ideas. His sensorium is clear. Moreover, he has appropriate fund of knowledge, intelligence, and abstract thinking. While he has testified that he has panic attacks, all of these types of symptoms are contemplated under the criteria for the existing 30 percent rating. The Veteran's GAFs have been between 55 and 60 reflecting no more than moderate symptoms. He gets along with his fiancé and his children. Moreover, he has never been hospitalized for his PTSD and instead is treated merely with medication and infrequent outpatient visits. Although there is at least one suggestion of flat affect, he has been groomed, etc. on evaluations, with good speech, and normal thoughts and memory. He has been cooperative with examiners. His symptoms do not produce reduced reliability and productivity. There is no indication of circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, or impairment of short and long term memory. Moreover, while the Board has noted that the Veteran reports irritability and outbursts of anger on numerous occasions, such instances of impaired impulse control are not by themselves sufficient to meet the criteria for a higher rating in view of the overall showing that the Veteran's PTSD symptoms are more in keeping with those listed for a 30 percent rating. In sum, the Board finds that the preponderance of the evidence is against a finding that the criteria for a ration in excess of 50 percent are met at any time during the appeal period. The Board stresses to the Veteran that it does not doubt that the PTSD results in impairment. However, his current impairment is reflected accurately by the current 30 percent rating. The Board is bound to apply the regulatory criteria. Should his PTSD increase in severity in the future, the Veteran may file a new claim for an increased rating. Extraschedular In general, the schedular 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 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). The application of such schedular criteria was discussed above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. The preponderance of the evidence is against a higher rating and there is no doubt to be resolved. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to a rating in excess of 30 percent for PTSD is denied. REMAND As noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. at 453-54 While the Board has jurisdiction over this issue as part and parcel of the Veteran's increased rating claim for PTSD (adjudicated above), further development is necessary for a fair adjudication of the TDIU aspect of such claim. Specifically, at this point it appears that while he has been trying for years to get a job, he has been unable to do so. Given the possibility that a TDIU claim may be viable, this claim has been included in the remand in order to clarify whether the Veteran remains unemployed and whether he intends to pursue a TDIU claim. With respect to a potential TDIU claim, it has been reported upon recent treatment records, as summarized earlier in the Introduction, that the Veteran is unemployable due to service-connected psychiatric symptoms, as well as IBS symptoms. At this point, it appears that the Veteran is unemployed but it is not apparent as to whether such is due to service-connected disabilities. Upon remand, the agency of original jurisdiction (AOJ) is requested to afford the Veteran notice under the VCAA as relates to a TDIU claim and should clarify whether he wishes to pursue such a claim. If so, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary to develop the TDIU claim. In the event that the Veteran's elects to pursue a TDIU claim, after all appropriate development has been completed, a TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16(a) and (b), as applicable. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence must be shown to support a claim for TDIU. The RO should also ascertain whether the Veteran wishes to pursue a TDIU claim. In the event that he does, further action as described herein should be taken. In the event that he does not, this fact should be annotated for the file and no further action is required. 2. The AOJ shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his right shoulder/scar disability and a TDIU claim (as applicable), that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records, including securing any necessary authorization forms. If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and include a copy of such in the claims file. The Veteran must be notified of the attempts made to obtain outstanding records, informed as to why further attempts would be futile, and allowed the opportunity to obtain or provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e) (2012). 3. If the Veteran elects to pursue a TDIU claim, the AOJ shall consider the issue of whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16(a) and (b) on the basis of the Veteran's service-connected conditions. In so doing, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or medical opinion, as is deemed necessary. If the claim is denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs