Citation Nr: 1328973 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 07-02 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial schedular disability rating greater than 30 percent for mandibular degenerative joint disease with myalgia and migraines. 2. Entitlement to an initial schedular disability rating for right foot degenerative arthritis with calcaneal spurs in excess of 10 percent prior to March 5, 2013, and in excess of 20 percent from that date. 3. Entitlement to an initial schedular disability rating for left foot degenerative joint disease with calcaneal spurs in excess of 10 percent prior to March 5, 2013, and in excess of 20 percent from then. 4. Entitlement to an initial compensable disability rating for left foot plantar fasciitis. 5. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from August 2000 to August 2004. This appeal arises to the Board of Veterans' Appeals (Board) from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the claims for development in December 2010. In February 2013, the Board denied an increased rating for the left knee and remanded the remaining issues for development. In June 2013, VA's Appeals Management Center (hereinafter, AMC) granted a higher, 30 percent, schedular rating for mandibular degenerative joint disease for the entire appeal period. The AMC granted a higher, 20 percent, schedular rating effective March 5, 2013, for right foot degenerative joint disease (DJD). The AMC also granted a higher, 20 percent schedular rating effective March 5, 2013, for left foot DJD. In July 2013, the Veteran expressed continued dissatisfaction with the higher ratings assigned. She also asserted unemployability. The Veteran's notice of disagreement (hereinafter, NOD) of April 2006 mentions her left knee and both feet. January and February 2007 VA outpatient treatment reports also mention bilateral foot, calf, and leg cramps. In Buckley v West, 12 Vet App 76, 84 (1998), a pes planus rating case, the United States Court of Appeals for Veterans Claims (hereinafter, the Court) discussed whether the medical evidence indicated that at least some of the calf-cramping symptomatology was attributable to the service-connected foot disability. The Court noted that the Board never stated whether the calf cramps presented a secondary service connection claim and then held that the Veteran's NOD raised the issue of all possible bilateral lower extremity conditions secondary to pes planus. So as not to run afoul of the Buckley holding, the Board refers the issue of secondary service connection for bilateral calf cramps, secondary to service-connected foot disabilities, to the AMC for appropriate action. The Court has determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran reported, in July 2013, that in 2006 she was forced to quit her job because of severe foot pain. Thus, the record clearly raises the question of unemployability due to a disability for which an increased rating is sought, and the Board must address that claim, as listed on the title page of this decision. In VAOPGCPREC 6-96, VA's General Counsel held that when entitlement to an award of TDIU arises in connection with an increased rating, the Board is not precluded from issuing a final decision on the issue of an increased schedular rating and remanding the extraschedular-rating or TDIU-rating issue for development. 61 Fed. Reg. 66,749 (1996). Further development is needed to properly adjudicate the TDIU claim. Entitlement to TDIU and/or an extraschedular rating, and the claims of entitlement to a higher initial rating for right foot disability, to greater initial schedular disability ratings for left foot DJD with calcaneal spurs, rated 10 percent prior to March 5, 2013, and 20 percent from that date, and to an initial compensable disability rating for left foot plantar fasciitis, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, DC. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's migraines, or migraine-variants, have been manifested by prostrating attacks occurring on an average of once a month over the last several years. 2. Very frequent, completely prostrating, and prolonged migraine attacks productive of severe economic inadaptability are not shown. 3. Throughout the appeal period, degenerative joint disease of the temporal mandibular joint has been manifested by full range of motion, but chronic jaw pain, to include painful chewing of food, is shown. CONCLUSIONS OF LAW 1. The criteria for an initial schedular disability rating greater than 30 percent for migraines or migraine variants are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118a, Diagnostic Code 7804 (2012). 2. The criteria for a separate, 10 percent schedular rating for mandibular degenerative joint disease with myalgia and painful motion of the jaw are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.150, Diagnostic Code 9905 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has previously remanded the case for development. In this case, all remand orders related to the disabilities addressed in this decision have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and her representative of any information and any medical or lay evidence that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, following the Board's remand in December 2010, adequate notice was provided in January and February 2011 notice letters sent to the claimant. Regarding claims for higher initial ratings for service-connected disabilities, an NOD with the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these circumstances, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a statement of the case (hereinafter, SOC). The SOC provided the claimant with the relevant rating criteria and of the evidence required to obtain higher ratings. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA out-patient treatment reports. The claimant was afforded several VA medical examinations during the appeal period and those reports contain sufficient details and are adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (where VA undertakes to provide an examination (even where VA is not statutorily obligated to provide one) the Board erred in failing to ensure that the examination was adequate or to otherwise notify the Veteran why it would not provide the promised examination). Neither the claimant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of these claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), Court distinguished a claim for an increased rating from a claim arising from disagreement with the initial rating assigned after service connection was established. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Claim for Higher Rating, Mandibular Joint Disease with Myalgia and Migraines The Veteran seeks an initial schedular disability rating greater than 30 percent for a disability characterized as mandibular degenerative joint disease with myalgia and migraines. This disability has been rated 30 percent disabling for the entire appeal period under Diagnostic Codes 9905-8100. A May 2013 supplemental statement of the case (hereinafter, SSOC) supplies the rating criteria for migraines under and for other dental and oral conditions. The Veteran has been granted service connection for a disability characterized as degenerative joint disease, mandibular joint, with myalgia and facial migraine headaches. A November 2005 VA temporal mandibular joint compensation examination report reflects a complaint of intermittent fascial pain and fasciculation of the muscles in the masseter region. The Veteran denied headache, locked-jaw, or history of fascial trauma. X-rays of the temporal mandibular joint showed bilateral condyle flattening, right side greater than left. The temporal mandibular joints showed full range of motion without pops or clicks. The assessments were intermittent myalgia and fasciculation of the masseter muscle, by history, and, radiographic signs of early degenerative joint disease of the mandibular condyle without symptoms. A May 2006 VA out-patient treatment report notes chronic jaw pain. An August 2006 maxillofacial surgery clinic outpatient note reflects facial pains in trigeminal nerve distribution. A magnetic resonance imaging (MRI) study showed anterior displacement of the mandible in closed-jaw position. A neurological problem was suspected and neurology consultation was recommended. An undated VA out-patient treatment report notes an assessment of migraine headache and trigeminal neuralgia. In January 2007, the Veteran reported that the evidence shows misalignment of her mandibular joint with severe symptoms. A January 2007 VA neurology note reflects migraine headaches controlled with Motrin(r). The physician noted that the Veteran's reported pain pattern and description are not consistent with trigeminal neuralgia. An April 2007 VA dental and oral compensation examination report reflects that the examiner found no history of surgery or pain, but there was difficulty chewing. No diagnosis was offered. An April 2007 VA dental examination report mentions that the temporal mandibular joint opened to 55 mm, with left deviation. A March 2011 VA dental compensation examination report reflects a complaint of temporal mandibular joint pains, greater on the left side. The jaw opened to 44 mm with no deviation. Right and left lateral excursion and protrusion were each to 7 mm. The Veteran reported left mandible pain, eye pain, left-side-of-the-whole-head pain, and headache pains. X-rays of the articular joints were within normal limits, but also showed that those joints might have some flattening on both sides. A March 2013 VA dental compensation examination report reflects inter-incisal range of motion to 42 mm and lateral excursion range of motion to 11 mm. The examiner did not address the fact that an earlier MRI showed anterior displacement in closed-jaw position. The diagnosis was jaw and face pains. The report references a headache disability benefits questionaire for further information. A March 2013 VA headaches compensation examination report contains a diagnosis of migraine headache, including migraine variants. The Veteran reported frequent headaches with sensitivity to light and sound and vision changes. Typical episodes of head pains lasted one to two days. Prostrating attacks of migraine pain occurred more frequently than once per month. The physician concluded that because an MRI and other diagnostic procedures showed no abnormality, the current migraine disorder was "most likely" a variant known as facial migraine headache. The facts recited above show two distinctly different disabilities, for which VA has assigned a single disability rating. The providers have assigned a diagnosis of a migraine condition. Thoughout the appeal period, migraines have been rated 30 percent disabling under Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent rating requires characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The 50 percent rating is the highest rating offered for migraines. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). Under Diagnostic Code 9905, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or the inter-incisal range is limited to 31 to 40 mm; a 20 percent rating is applicable when the inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is assigned when the range is limited to 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905. Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, DC 9905, Note. DC 9905 only provides one rating for TMJ dysfunction; the rating criteria in DC 9905 do not provide a rating for bilateral TMJ dysfunction. See 38 C.F.R. § 4.150. The Veteran's migraines, or migraine-variant, have been manifested throughout the appeal period by prostrating attacks occurring on an average of once a month over the last several months, in fact, over the last several years. Therefore, the Veteran's reported symptoms approximate the criteria for a 30 percent rating. However, the clinical evidence establishes that the Veteran has not reported headaches averaging more than monthly in frequency, nor has she provided evidence that she missed work with greater frequency due to headaches. A 50 percent rating for migraines requires very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. Because these manifestations are not shown, the criteria of a 50 percent schedular rating, or greater, are not more nearly approximated. The Board finds that, at least under the circumstances presented in this case, the Veteran's migraine headaches are a distinctly different disability than her temporomandibular joint pain or difficulty chewing at various times. Radiologic examinations have disclosed abnormality of the temporomandibular articulation. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the Court stressed that the rating schedule permits separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14. The earlier diagnosis of temporal mandibular joint degenerative joint disease (supported by X-rays) with MRI evidence of forward displacement of the mandible is a separate diagnosis and produces symptoms separate and distinct from migraines with vision changes and sensitivity to light and sound. Thus, a separate rating for painful motion of the temporal mandibular joints should be considered. Although inter-incisal range of motion is greater than 40 mm and the range of lateral excursion is greater than 4 mm (which would appear to preclude a compensable rating), 38 C.F.R. § 4.59 nonetheless requires that where there is abnormality of a joint confirmed on objective radiologic examination, a painful joint be assigned "at least the minimum compensable rating for the joint." Objective radiologic confirmation of degenerative changes of the articulation of the jaw is of record. In this case, because chewing is painful (pain on movement of a joint is a factor of disability (see 38 C.F.R. § 4.45 (f))), a separate 10 percent rating for degenerative joint disease of the temporal mandibular joint is warranted. See also DeLuca, 8 Vet. App. at 206. After considering all the evidence of record, the Board finds that the preponderance of it is against an initial schedular rating greater than 30 percent for migraines. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The Board notes the AOJ discussion of the fact that service connection is not warranted for certain dental disorders unless there is a showing of trauma sustained in combat in service. However, in this case, service connection has already been granted for the Veteran's mandibular disability; the question before the Board is whether a separate, compensable rating is appropriate. The Board finds that a separate, compensable rating is authorized. However, without limitation of motion of the joint, an evaluation in excess of 10 percent is not warranted. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the "disability picture" is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Because entitlement to TDIU and entitlement to a higher schedular rating for the right foot must be remanded for further development, because a disability rating for right foot plantar fasciitis has not yet been assigned by the RO, and because a secondary service connection claim mentioned in the Introduction to this decision remains pending, the overall "disability picture" as that phrase is used at § 3.321 (b) is not yet clear. Therefore further extra-schedular rating considerations must be deferred pending further development of the claims that are remanded below. ORDER Entitlement to an initial schedular disability rating greater than 30 percent for migraines is denied. Entitlement to a separate 10 percent schedular rating for mandibular degenerative joint disease with myalgia and painful motion of the temporal mandibular joints is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND Right Foot Disability Rating The Veteran seeks a greater initial rating for right foot degenerative arthritis with calcaneal spurs, which has been rated 10 percent prior to March 5, 2013, and 20 percent from then. In the Board's December 2010 remand, the Board directed that medical evidence be developed to address certain questions. In its February 2013 Remand, the Board noted that three questions set forth in the 2010 Remand remained unanswered by the report of a March 2011 VA foot examination. The report of the examination conducted in 2013 does not answer those questions; to the extent that the report may have addressed the questions, the answers were not addressed in the readjudication of the claim for an increased evaluation for right foot disability. Therefore, the Board will again Remand this claim. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the claimant as a matter of law the right to compliance with remand directives). In particular, the 2013 VA foot examination report does not discuss and reconcile the findings, observations, and evidence regarding the right foot in the earlier VA examinations. Although the examiner provided a diagnosis of bilateral plantar fasciitis with calcaneal spurs, the examiner did not provide an opinion as to when the criteria for that diagnosis were met. The questions of proper characterization of the service-connected right foot disability must be addressed before appellate review of the appropriate evaluation for right foot disability can be completed. Left Foot Disability Ratings In the February 2013 Remand, the Board directed the AMC/RO to readjudicate the claim for an initial disability rating in excess of 10 percent for left foot DJD and the claim for an initial compensable rating for left foot plantar fasciitis. The AMC redjudicated the claim for an increased rating for left foot DJD, awarding an increase in the rating to 20 percent, effective from March 5, 2013, but did not address the claim for a compensable evaluation for plantar fasciitis in its May 2013 rating decision. To the extent that the discussion of the evaluation of plantar fasciitis in the May 2013 supplemental statement of the case (SSOC) is intended as a readjudication of the claim, that discussion does not appear to be related to the facts of this case. It appears to the Board that the claims for higher ratings for the left foot disabilities are inextricably intertwined, and require readjudication. The Veteran's June 2013 correspondence reflects that she seeks higher ratings for both left foot disabilities based on left foot pain. The Board notes that left foot degenerative joint disease with calcaneal spurs was rated 10 percent prior to March 5, 2013, and 20 percent from then, under Diagnostic Code 5284, with left foot plantar fasciitis separately rated zero-percent disabling under Diagnostic Code 5399-5010 for the entire appeal period. The readjudication of the evaluation of left foot DJD under DC 5284, without discussion of the noncompensable evaluation of plantar fasciitis under DC 5010, which is reserved for rating arthritis, appears to allow rating of left foot pain twice, once under DC 5284 and once under DC 5010. VA is not authorized to provide separate evaluations for different medical diagnoses where symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). If additional development of the medical evidence is required to distinguish the symptoms of plantar fasciitis, DJD, and calcanel spurs, the AMC should conduct such development. Development or opinion as necessary to reconcile the various descriptions of the diagnosed disorders and severity of such disorders in the November 2005, April 2007, March 2013 reports, should be conducted. TDIU As noted in the Introduction, the Veteran has raised the issue of unemployability due chiefly to her service-connected bilateral foot disabilities. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). With application of the bilateral factors and the grant of increased benefits herein, the service-connected disabilities currently do meet these percentage standards for TDIU. In this case, however, no medical professional has addressed whether all service-connected disabilities, in combination, would preclude securing and following a substantially gainful occupation. VA's duty to assist includes obtaining a medical opinion that addresses this issue. Accordingly, this case is remanded to the AMC for the following action: 1. Obtain updated VA treatment records to the present. 2. Afford the Veteran an opportunity to identify or submit any clinical or non-clinical evidence not already associated with the claims file which reflects the severity of right or left foot pain or effect of any service-connected disability on her industrial capacity. 3. Schedule the Veteran for a VA orthopedic examination, by an appropriate specialist, to determine the current severity of her service-connected foot disabilities, including right foot degenerative arthritis with calcaneal spurs, left foot degenerative joint disease with calcaneal spurs, and left foot plantar fasciitis. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history, including, in particular, any records of recent treatment. The examination should include any diagnostic testing or evaluation, including X-ray studies, deemed necessary. The examiner should address the following: (i) Discuss the November 2005, April 2007, and March 2011 VA examination reports, and explain what diagnosis(es) is/are appropriate currently for the Veteran's right foot disability. If plantar fasciitis of the right foot is present, please state the likelihood that the disorder has been present since the Veteran submitted her initial claim for service connection in September 2005. If right foot plantar fasciitis is present, but was not present in September 2005, please state when that disorder likely arose. If right foot plantar fasciitis was likely present in September 2005, but is not currently present, please state when the disorder resolved. (ii) The examination report must include range of motion findings. The examiner must identify and describe any and all current right foot and left foot symptomatology, including whether there is pain, swelling, tenderness, stiffness, weakness, fatigability, deformity, abnormal weight-bearing, pronation, limited motion, numbness. The examiner should describe whether there is functional loss in the right foot or in the left foot associated with the foot disabilities due to more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, pain on pressure or manipulation, and muscle spasm. The examiner should specify any additional limitation of motion due to any of these factors, including during prolonged, repetitive use of the feet, or when, for example, the Veteran's symptoms are most problematic ("flare-ups"). If there is no objective evidence of these symptoms, the examiner should so state. Further, the examiner should note the movements of each foot and state whether any muscles of the foot are affected. (iii) Finally, the examiner should indicate whether each of the Veteran's foot disabilities is moderate, or moderately severe, or severe in nature. 3. After the development requested above has been accomplished and after all pending service connection claims have been addressed, the AMC or RO should develop the TDIU claim as necessary, including providing an examination to determine what industrial; activities are affected by the service-connected disabilities, and the severity of such impairment. The examiner should describe the severity of impact of the impairment of industrial capacity with respect to the Veteran's education and occupational experience. The Veteran should be advised that failure to report for a scheduled examination, without good cause, may have adverse consequences on her claims. 38 C.F.R. § 3.655(b) (2012). All indicated tests and studies should be conducted and all findings described. The examiner should elicit a history of relevant symptoms from the Veteran. The claims files and any additional records contained in Virtual VA file must be made available to the examiner for review and the examination report should reflect that such review was accomplished. A rationale for any opinion should be given. 4. Following the above, the AMC or RO should review all the relevant evidence and adjudicate the TDIU claim. If the desired benefits are not granted, an appropriate SSOC should be issued. The Veteran and her representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. 5. Following development and adjudication of the TDIU claim, if the benefit is not granted, the AMC or RO should submit it to the Director, Compensation and Pension Service, for extra-schedular consideration in accordance with 38 C.F.R. § 3.321 (b). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). 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). ______________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs