Citation Nr: 1326008 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-19 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for post-operative degenerative disc disease of the thoracolumbar spine, prior to April 15, 2013. 2. Entitlement to a rating in excess of 40 percent for post-operative degenerative disc disease of the thoracolumbar spine, from April 15, 2013. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from August 1965 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Board decision in January 2011 denied an increased rating for the appellant's lumbar spine disorder and remanded the issue of entitlement to a TDIU. The appellant thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) insofar as the Board denied the issue of an increased rating. In a Memorandum Decision dated in August 2012, the Court vacated the Board's denial of the increased rating claim and remanded the case for readjudication in accordance with the decision. In March 2013, the Board remanded the claim for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). In a May 2013 rating decision, the Appeals Management Center (AMC) granted an increased rating of 40 percent for degenerative disc disease of the thoracolumbar spine, effective April 15, 2013. The Court has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue of entitlement to a higher rating for degenerative disc disease of the thoracolumbar spine remains before the Board. The Board also notes that in a June 2013 statement, the appellant requested an earlier effective date for the increased rating of 40 percent, effective April 15, 2013. As the Board has considered whether a higher rating is warranted prior to April 15, 2013, as discussed below, as part of the increased rating claim, the Board has not construed the appellant's statement as a separate claim for an earlier effective date. The Board also notes that the appellant's increased rating claim was received in February 2008, within one year of the January 2008 rating decision which granted service connection for degenerative disc disease of the thoracolumbar spine. However, as the appellant did not express disagreement with the January 2008 rating decision, the Board has not construed the claim as a notice of disagreement. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to April 15, 2013, the appellant's post-operative low back disorder had not manifested with ankylosis, incapacitating episodes, or range of motion on forward flexion of 0 to 30 degrees or less. 2. From April 15, 2013, the appellant's post-operative low back disorder has manifested by forward flexion of 0 to 30 degrees or less, but without unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 20 percent for post-operative low back disorder prior to April 15, 2013are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(4), 4.1, 4.71a, Diagnostic Code 5242 (2012). 2. The requirements for an evaluation higher than 40 percent for post-operative low back disorder from April 15, 2013 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321(b)(4), 4.1, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Appropriate notice was provided in March 2008 and February 2011 letters. The claims were subsequently readjudicated, most recently in a May 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran appropriate VA examinations in April 2008 and April 2013. The examination is adequate because it is based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. The April 2013 VA examination was also obtained in compliance with the mandates of the March 2013 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2010). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. III. Analysis The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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 appellant 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 appellant). 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 claimant. 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, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted in the introduction, historically, a January 2008 rating decision granted service connection for a low back disorder and assigned an initial rating of 20 percent, effective November 2006. In her February 2008 request for an increased rating, the appellant asserted that her symptoms had increased in severity. Prior to addressing the current appeal, the Board notes that most of the evidence on which the appellant relies for her assertion was addressed in the January 2008 rating decision, which she did not appeal. Consequently, the Board only considers the medical evidence for the period from January 2008 forward as the evidence of record. The General Formula is used to evaluate degenerative disc disease of the thoracolumbar spine under Diagnostic Code 5242. It provides that, 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 20 percent rating applies of forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or if the disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal countour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for favorable ankylosis of the thoracolumbar spine or range of limitation of motion on forward flexion to 30 degrees or less. 38 C.F.R. § 4.71a. The Board notes that although the August 2008 rating decision continued the 20 percent rating for the orthopedic symptoms of the appellant's low back disorder, it granted service connection for sensory deficit of each lower extremity for the neurological manifestations of the disorder and assigned a separate initial 10 percent rating for each. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620. The appellant did not express disagreement with that allowance. Thus, the Board does not address it. Prior to April 15, 2013 The appellant was afforded a VA examination in April 2008. The report notes that the appellant's current medications for her low back disorder were noted as Vicodin and Naproxen. She reported constant, severe pain of an achy, sharp and burning nature that radiated to both legs. The appellant denied having experienced any incapacitating episodes during the prior 12 months. She noted a back brace seemed to help her symptoms, and she could do her activities of daily living, but could only do chores for a few minutes at a time. The appellant denied any bowel or bladder involvement, although she noted a history of irritable bowel syndrome not related to her back. She also noted that her feet went numb if she sat very long. She denied any leg weakness. The appellant reported that she could stand or sit for 15 minutes and then she had to get up and stretch. She could stand for 60 minutes if she was able to shift her weight. Physical examination of the muscles of the lumbar spine revealed spasm on the left and right but it was not severe enough to cause an abnormal gait or abnormal spinal contour. There was no atrophy, guarding, tenderness, or weakness noted. Posture and head position were normal, and the spine was symmetrical in appearance. The appellant's gait was slow and stiff. There were no abnormal spinal curvatures. Motor examination was 5/5 throughout. Muscle tone was normal without atrophy. Sensation to light touch, vibration and position was 5/5, but pinprick was 1/2 in the left lower leg and foot and right medial foot at toes 1 to 3. Knee and ankle jerk reflexes were 2+ bilaterally, and plantar flexion was normal bilaterally. The examiner specifically noted that there was no thoracolumbar spine ankylosis. Testing on range of motion revealed forward flexion of 0 to 35 degrees, where pain ensued. Passive range of motion was the same. Lasegue's sign was negative. X-rays were read as having shown mild narrowing of the L4-5 disc space and mild to moderate degenerative changes in the lower lumbar fact joints. The examiner diagnosed degenerative disc and joint disease of the lumbar spine and radiculopathy of the lower extremities. VA treatment records, including records of the appellant's physical therapy, note clinical findings consistent with the April 2008 examination. The appellant consistently reported having back pain. A May 2008 VA treatment record noted that the appellant reported her back pain was worse with sitting/driving and better with walking. A July 2008 physical therapy entry notes forward flexion of fingertips to the mid-shin, which was better than 0 to 30 degrees. The July 2008 VA treatment record noted that the appellant reported one fall one month ago. She was very guarded and uncomfortable in appearance. She was able to walk on heels and toes. An August 2008 entry notes sensation was intact and straight leg raising was negative. The examiner noted that the appellant's primary symptom was chronic low back pain. A November 2008 VA treatment record noted that the appellant walked with a rolling walker, with slow but steady turns, and no footdrop was visible. A December 2008 VA treatment record noted that the appellant's back pain/sciatica was apparently nonsurgical and she had already had an injection without great relief. A May 2009 VA treatment record indicates the appellant reported she walked with a walker and was in bed less than half the day. She stated she would lie down to relieve her lower back which was worse with standing/sitting too long. A July 2009 VA treatment record indicates that the appellant reported she was limited by pain. She could walk with a walker. A March 2010 VA treatment record noted that the appellant had chronic low back pain that was nonsurgical, but quite debilitating. The record indicated she was unable to work because of this. A September 2011 VA treatment phone record notes that the appellant reported worse back pain the past week. She had trouble standing/walking due to back pain and was staying in bed. The appellant's VA treatment records also reflect that she had caudal epidural steroid injections. The appellant is competent to report symptoms capable of lay observation, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the appellant's statements regarding her back pain to be credible, as they are consistent with the evidence of record. After reviewing all relevant evidence, the Board concludes that the findings on clinical examination set forth above and VA treatment records show her low back disorder to more nearly approximate the assigned 20 percent rating, prior to April 15, 2013. A higher rating was not met or approximated, as her thoracolumbar range of motion on forward flexion was better than 0 to 30 degrees. Further, the examiner specifically excluded ankylosis. As noted above, the appellant is separately service-connected for radiculopathy of the lower extremities. The April 2008 VA examination report reflects that he appellant denied having a history of urinary problems. The VA examiner noted the appellant had a long history of irritable bowel syndrome not related to the spine. Thus, a separate rating is not warranted for neurologic abnormalities other than the existing separate ratings for radiculopathy. Although the September 2011 VA treatment record noted that the appellant reported staying in bed because of back pain, there is no evidence that she had incapacitating episodes within the meaning of the applicable regulation which contemplates physician prescribed bed rest. The Board notes that in light of the fact the appellant denied any incapacitating episodes, her low back disability must be rated on the basis of the chronic orthopedic and neurological manifestations. Id. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). According to the April 2008 VA examiner, evidence of pain on flexion of the thoracolumbar spine began at 35 degrees, which is higher than the 30 degree limitation required for a higher evaluation of 40 percent. There was no additional loss of motion on repetitive use. The appellant did not report having flare-ups of the disability. There was objective evidence of spasm of the muscles of the spine and tenderness, but there was no atrophy, guarding or weakness. The appellant's VA treatment records reflect that she had back pain throughout the rating period on appeal, however, she was able to walk and perform her activities of daily living. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Although the Board has considered the appellant's credible reports of pain, the Board finds a preponderance of the evidence is against a finding of functional loss sufficient to warrant a higher disability rating under DeLuca. From April 15, 2013 The appellant was afforded a VA examination in April 2013. At the VA examination, the appellant's thoracolumbar spine had forward flexion of 30 degrees. Objective evidence of painful motion began at 30 degrees. The appellant did not have additional loss of range of motion after repetitive-use testing. The VA examiner noted that the appellant had less movement than normal and pain on movement. The VA examination report reflects that there was no objective evidence to support any significant limitation on her functional ability when the lumbar spine was used repeatedly over a period of time. The appellant did not have localized tenderness or pain to palpation for the joints and/or soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm of the thoracolumbar spine. The appellant had mild radiculopathy. The appellant did not have any other neurologic abnormalities or findings related to a thoracolumbar spine. The appellant did not report that flare-ups impacted the function of the thoracolumbar spine. The April 2013 VA examination report is consistent with the appellant's VA treatment records. A February 2013 VA treatment record reflects that the appellant was able to walk 15 minutes with a rolling walker and reported trouble with vacuuming and bending for laundry. The Board finds that the evidence of record is consistent with a 40 percent rating for degenerative disc disease of the thoracolumbar spine from April 15, 2013. As noted above, a 40 percent rating is warranted under Diagnostic Code 5242 for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. The evidence from April 15, 2013, does not demonstrate that the appellant had ankylosis of the thoracolumbar spine. At the April 2013 VA examination, the appellant was able to move her spine, with flexion of 30 degrees. The April 2013 VA examination also indicated that the appellant did not have any neurologic abnormalities related to the spine. As discussed above, the appellant is already separately rated for sensory deficits of the lower extremities. There was also no evidence of incapacitating episodes. The Board has considered whether the appellant's thoracolumbar spine disability approximated a higher rating with consideration of functional impairment. However, at the April 2013 VA examination, the examiner noted that there was no objective evidence to support any significant limitation on her functional ability when the lumbar spine was used repeatedly over a period of time. The appellant was able to perform repetitive-use testing with three repetitions. The appellant did not report that flare-ups impacted the function of the thoracolumbar spine. The February 2013 VA treatment record noted that the appellant was able to walk for 15 minutes with a rolling walker. Although she reported trouble with vacuuming and bending for laundry, the Board finds that the evidence does not show that the appellant had functional impairment equivalent to unfavorable ankylosis of the thoracolumbar spine. Thus, the Board does not find that a rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine is warranted even with consideration of DeLuca. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). Extraschedular Consideration The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the degenerative disc disease of the thoracolumbar spine. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's degenerative disc disease of the thoracolumbar spine are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the degenerative disc disease of the thoracolumbar spine is primarily manifested by limitation of motion due to pain. The applicable diagnostic code used to rate the appellant's disability provide for ratings based on limitation of motion, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant'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). ORDER Entitlement to a rating in excess of 20 percent for post-operative degenerative disc disease of the thoracolumbar spine, prior to April 15, 2013, is denied. Entitlement to a rating in excess of 40 percent for post-operative degenerative disc disease of the thoracolumbar spine, from April 15, 2013, is denied. REMAND In January 2011, the Board remanded the issue of entitlement to a TDIU. The Board asked the Agency of Original Jurisdiction (AOJ) to obtain an opinion as to whether the appellant is capable of obtaining and maintaining substantially gainful employment in light of her low back disability. The examiner was requested to specifically comment regarding the feasibility of sedentary employment. In the April 2013 VA examination, the examiner stated that the appellant's thoracolumbar spine condition had an impact on her ability to work. The VA examiner listed direct quotations of the appellant, noting that she said she could only walk for 25 yard at a time with her walker, she could only stand for 10 minutes at a time and she could only sit for no more than 15 minutes at a time. However, the VA examiner did not provide any opinion regarding whether the appellant is capable of obtaining and maintaining substantially gainful employment in light of her low back disability or comment on whether the appellant is capable of sedentary employment. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). As the April 2013 opinion is inadequate in regard to the issue of entitlement to a TDIU and did not comply with the January 2011 remand, a new VA opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to the examiner who conducted the April 2013 VA examination, or if unavailable, a VA physician with appropriate expertise. Ask the examiner to render a definitive opinion as to whether the appellant is capable of obtaining and maintaining substantially gainful employment in light of her low back disability. The examiner should specifically comment regarding the feasibility of sedentary employment. Should the examiner advise that another examination is needed to render an opinion, the AMC/RO shall arrange the examination. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to a TDIU. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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. 2012). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs