Citation Nr: 1329184 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-20 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a passive aggressive personality disorder. 2. Entitlement to an initial rating higher than 10 percent for post concussive syndrome prior to October 23, 2008. 3. Entitlement to an initial rating higher than 10 percent for post concussive syndrome from October 23, 2008. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service- connected disease or injury. REPRESENTATION Appellant represented by: Swords to Plowshares, Veterans Rights Organization, Inc. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the issues on appeal with the exception of the claim for TDIU. The rating decision granted service connection for post concussive syndrome and assigned an initial rating of 10 percent for the entire appeal period, however as the rating criteria for residuals of Traumatic Brain Injury (TBI) was revised effective October 23, 2008. In August 2013 the Veteran was scheduled for a Board hearing, however he failed to report for the hearing. The Board also notes that the Veteran's representative in February 2008 stated that the Veteran testified at a Board hearing in 1995, however there is no documentation in the claims folder that such a hearing was held. The Veteran contended that he cannot work due to his service-connected head injury. See statements dated in March 1999 and January 2010. The Court has held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the RO should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. The issue of entitlement to an initial rating higher than 10 percent for post concussive syndrome from October 23, 2008, TDIU, and service connection for an an acquired psychiatric disorder on a direct and secondary basis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a rating decision in May 2001, the RO denied service connection for passive aggressive personality disorder, the Veteran filed a notice of disagreement in September 2001, a Statement of the Case was issued in December 2002, the Veteran did not file an appeal. 2. The evidence presented since the rating decision by the RO in May 2001 does not relate to an unestablished fact necessary to substantiate the claim of service connection for a passive aggressive personality disorder. The evidence submitted is redundant or cumulative. 3. Prior to October 23, 2008, post concussive syndrome was productive of purely subjective complaints, without multi- infarct dementia. CONCLUSIONS OF LAW 1. The rating decision in May 2001, denying service connection for passive aggressive personality disorder is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. The evidence presented since the rating decision by the RO in May 2001, denying service connection for passive aggressive personality disorder, is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for an initial rating higher than 10 percent for post concussive syndrome have not been met prior to October 23, 2008. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8045-9304 (prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided pre-adjudication VCAA notice by letters, dated in December 2004 and in May 2005. The May 2005 VCAA notice included the type of evidence needed to substantiate the underlying claim of service connection, namely, evidence of a current disability; evidence of an injury or disease in service or an event in service, causing or aggravating injury or disease; evidence of a relationship between the current disability and the injury, disease, or event in service. The VCAA notice letters also included the type of evidence needed to reopen the claim of service connection, that is, new and material evidence, namely, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and pertained to the reason the claim was previously denied, that is the Veteran's claim of service connection for passive aggressive personality disorder was previously denied because the condition was considered a constitutional/developmental condition for which service connection is not warranted. The Veteran was notified of the evidence that VA would obtain and the evidence that he could submit. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) (new and material evidence necessary to reopen a service connection claim). While in the December 2004 and May 2005 VCAA notice letters the Veteran was not advised of the criteria governing disability ratings and effective dates of awards, he is not prejudiced by lack of such notice as disability ratings and effective date criteria have no significance unless the claims are allowed, and the decision below does not do so. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). As for the claim for an initial higher rating for post concussive syndrome, where, as here, service connection has been granted and an initial rating has been assigned, the claim of service connection have been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disabilities, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. The Veteran's lay statements, service treatment records, VA medical records, VA examination in May 2005, and private medical records have been associated with the file. The Veteran filed his underlying claim of service connection for head trauma in September 2003 and the July 2005 rating decision granted service connection for post concussive syndrome effective September 26, 2003. Prior to the current appeal period, in a statement dated in September 2001, the Veteran reported that he was receiving benefits from the Social Security Administration (SSA) and letters from SSA in May 2001 and March 2003 show that he was receiving supplemental security income payments. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the appellant's argument in Golz that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321. The Federal Circuit also stated, that "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz that "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In this case, the Veteran's claim to reopen service connection for passive aggressive personality disorder is essentially denied as a matter of law. This is explained in detail below. As for the claim for an initial rating higher than 10 percent for post concussive syndrome prior to October 23, 2008, the Veteran is in receipt of the highest rating for subjuctive symptoms available prior to October 23, 2008. Thus the SSA records do not raise a reasonable possibility of substantiating the issues decided below. In December 2001, the Veteran stated that during service he was hospitalized for four months at Cubi Point Hospital. However, there is no reason to believe that these records may give rise to pertinent information to conclude they are relevant to the Veteran's personality disorder, which is denied as a matter of law, or the claim for an initial higher rating for post concussive syndrome prior to October 23, 2008 as the focus of this claim is on the severity of the disability from the date that service connection was granted to October 23, 2008. As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Application to Reopen In May 2001, service connection for passive aggressive personality disorder was denied. The Agency of Original Jurisdiction noted that the disorder was a congenital or developmental abnormality. See 38 C.F.R. § 3.303(c). After the RO notified the Veteran of the adverse determination and of his procedural and appellate rights in May 2001, the Veteran filed a notice of disagreement in September 2001, a statement of the case was issued in December 2002, the Veteran did not file an appeal and the May 2001 rating decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7105. New and material evidence was not received within one year of the date of the notification. Although the prior rating decision is final, it may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regardless of how the RO ruled on the question of reopening, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). At the time of the May 2001 decision, the evidence of record consisted of the Veteran's statements, service treatment records, and VA records. In February 1999 the Veteran stated that his personality disorder did not exist prior to service and indicated that is was secondary to Meniere's syndrome. In April 2000 and in May 2000 the Veteran stated that the negligent care he received in service for his Meniere's syndrome caused his passive aggressive personality disorder. Service treatment records include a "Narrative Summary, SF 502" in February 1979, that shows the Veteran had a diagnosis of passive aggressive personality disorder, was found unsuitable for service, and recommended to be administratively discharged. VA treatment records in May 2001 show a prior diagnosis of passive aggressive personality disorder. The evidence of record since the last prior final denial in May 2001 consists of the Veteran's application to reopen service connection for a passive aggressive personality disorder, service treatment records, and VA treatment records. In November 2003, the Veteran filed a claim to reopen service connection for passive aggressive personality disorder. In February 2009 he submitted a duplicate copy of his February 1979 in-service "Narrative Summary, SF 502" that shows the Veteran had a diagnosis of passive aggressive personality disorder. VA treatment records, to include entries dated in November 2006 and in May 2008 show that the Veteran had a personality disorder. (The Board notes that personality disorders are not diseases or injuries within the meaning of the law. See 38 C.F.R. § 3.303, 4.9, 4.127.) The February 1979 service treatment record is not new as it was of record at the time of the last final rating decision in May 2001. The other evidence received since the last rating decision in May 2001 merely confirms that he has a personality disorder and is cumulative. Accordingly, this evidence as it pertains to the diagnosis of a personality disorder is cumulative or redundant of the evidence already of record. The Board therefore concludes that new and material evidence regarding the claim of service connection for a passive aggressive personality disorder has not been received. As new and material evidence has not been received, the claim is not reopened. (To the extent that the Veteran has an acquired psychiatric disorder, such impairments are the subject of a remand.) Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is rated under Diagnostic Codes 8045-9304 for service-connected post concussive syndrome. During the appeal period Diagnostic Code 8045 was revised. The protocol for traumatic brain injuries (TBI) was revised during the pendency of this appeal, the effective date for these revisions is October 23, 2008, and an increase in disability compensation based on the new rating criteria cannot be earlier than the effective date. See 73 Fed. Reg. 54693 (Sept. 23, 2008). See, 38 U.S.C.A. § 5110(g). The Board notes that the Federal Register's paragraph addressing the applicability date of the new regulation specifically states that the amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. The old criteria will apply to applications received by VA before that date. In the present case, the Veteran's claim was received in September 2003, which is prior to the effective date of the amendment, October 23, 2008. However, the RO adjudicated the claim under the new regulation in the August 2012 Supplemental Statement of the Case. Thus in the instant case, the amended regulatory criteria are applicable from October 23, 2008. Prior to October 23, 2008, the previous version of Diagnostic Code 8045 is applicable. As the Veteran may be entitled to an initial higher rating under the revised rating criteria, consideration of a staged rating is appropriate. The pre-revision version of Diagnostic Code 8045 provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. were to be rated under the Code specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were to be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, DC 8045 (prior to October 23, 2008). A rating decision in July 2005, granted service connection for post concussive syndrome (claimed as head trauma and 8th cranial nerve damage) based on service treatment records in August 1978 that show the Veteran complained of persistent headaches and blurry vision after he was hit on the head with a rock and was assessed with post concussion syndrome. In a January 2010 statement, the Veteran stated that he suffered from migraines, vertigo, and tinnitus since his head injury in service. (A rating decision in August 2010 granted service connection for tinnitus.) On VA examination in May 2005, the examiner noted that the Veteran had residual symptoms of tinnitus and dizziness in 1962 that were attributed to either a chronic vestibular neuritis or bilateral Meniere's disease. He also reported that the Veteran contended that his chronic vestibular neuritis, which also was diagnosed as Meniere's disease, was exacerbated by his post concussive syndrome incurred in service. The examiner further stated that up until age sixteen, the Veteran had at least monthly incapacitating episodes of dizziness, nausea, and hearing loss. After the in-service head injury the symptoms returned to how there were in the past, slowly improving but never returning to how they were prior to the head injury. At the time of the May 2005 VA examination, the Veteran complained of mild nausea and dizziness. Physical examination shows that cranial nerves were intact. Sensation, coordination, reflexes, and gait also were intact. The diagnoses were post-concussive syndrome secondary to head trauma in 1978 and probable Meniere's disease, likely chronic. The examiner concluded that the Veteran's chronic condition is not caused by, or the result of, his head trauma. I believe that the episodes are chronic isolated events, although his post- concussive syndrome could have exacerbated some of his chronic symptoms. In essence, the chronic condition is separate from his post-concussive syndrome. The (V)eteran's symptoms from his Meniere's disease had essentially resolved prior to his head injury. He may be experiencing some continued symptoms from his post-concussive syndrome. Subsequent VA treatment records show that the Veteran complained of memory problems dizziness, and headaches. See April 2006 and April 2008 VA treatment records. As the evidence above reflects, there was no neurological impairment associated with the service-connected post concussive syndrome prior to October 2008 and the Veteran's complaints were of nausea, dizziness, headaches, and memory problems. They represent purely subjective complaints, and in the absence of a diagnosis of multi-infarct dementia associated with brain trauma, a rating in excess of 10 percent is not warranted under the old criteria. As for the Veteran's implied assertions that there was neurological impairment associated with his service- connected post concussive syndrome, they are outweighed by the medical evidence of record. On VA examination in May 2005, the Veteran's neurological status essentially was evaluated as normal and the examiner's findings are uncontroverted by the other medical records in the file. The Board finds that the objective medical findings by skilled professionals are more persuasive which, as discussed above do not support higher ratings. In essence, the lay evidence, while accepted as credible, does not provide a basis for higher evaluations. Further, the records show that the Veteran has a history of chronic vestibular neuritis and Meniere's disease diagnosed in 1962. See e.g., VA treatment records dated in December 1999, March 2001, and May 2001. As presented above, the May 2005 VA examiner noted that the Veteran's vestibular disorder was variously diagnosed as vestibular neuritis and Meniere's disease. The May 2005 VA examiner concluded that Meniere's disease is separate from the Veteran's post concussive syndrome and the former had essentially resolved prior to the in-service head injury. The examiner opined that the Veteran's symptoms may be related to his post concussive syndrome. The Board also notes that the RO in a rating decision in June 2011 confirmed a previous denial of service connection for Meniere's disease. The Veteran did not appeal this determination and the issue of service connection for Meniere's disease is not in appellate status. Based on the foregoing, the Board concludes that an initial rating higher than 10 percent for post concussive syndrome prior to October 23, 2008 is not warranted. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Consideration On VA examination in May 2005, and in multiple statements, the Veteran contended that his service-connected post concussive syndrome interfered with his ability to work. While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected post concussive syndrome. His service- connected head disorder is manifested by his subjective complaints of nausea, dizziness, headaches, and memory problems. The rating criteria contemplate these symptoms. The Veteran has not described any exceptional or unusual features or symptoms of the disability. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER The application to reopen a claim of service connection for passive aggressive personality disorder is denied. An initial rating higher than 10 percent for post concussive syndrome prior to October 23, 2008 is denied. REMAND In a statement dated in September 2001, the Veteran reported that he was receiving benefits from SSA and letters from SSA dated in May 2001 and March 2003 show that he was receiving supplemental security income payments. In December 2001, the Veteran reported that during service he was hospitalized for four months at Cubi Point Hospital, these records are not in the claims folder. In May 2007, the Veteran contended that he has an anxiety disorder that is secondary to his in-service head trauma. Under the duty to assist, the SSA records and the outstanding in-service hospital records need to be obtained and the Veteran should be afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder. As the Veteran was last afforded a VA examination in July 2010 for his service-connected post concussive syndrome, which did not include an evaluation of the facets of traumatic brain injury (TBI) related to cognitive impairment and subjective symptoms, he should be afforded a new VA examination to determine the current level of severity. As the above claims being remanded could affect the TDIU claim, the claims are inextricably intertwined and a Board decision on the TDIU claim at this time would be premature. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice in regard to his claim for TDIU and for service connection for an acquired psychiatric disorder as secondary to a service- connected disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Obtain a copy of all the medical records from the Social Security Administration that were used in considering the Veteran's claim for disability benefits. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Ask the National Personnel Records Center to search for in-service hospital records from 1978 to 1979 for Cubi Point Hospital, in the Philippines. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 4. After the development requested above has been completed, schedule the Veteran to be examined by an appropriate examiner to determine the nature and current severity of his service-connected post concussive syndrome. The examination must be conducted in accordance with the most current TBI examination worksheet. The examiner should offer a rationale for all opinions given with reference to pertinent evidence. If the examiner is unable to provide a rationale, he or she should explain why. 5. Schedule the Veteran for a VA examination by an appropriate examiner to determine the etiology of any current psychiatric disorder. The examiner must: a.) Reconcile the varying psychiatric diagnoses in the claims folder. The examiner must consider that from the time the Veteran filed his claim for a psychiatric disorder in 2003, VA treatment records show a diagnosis of anxiety, adjustment disorder, and depression, See VA treatment records dated in June 2004 and May 2007. b.) Offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any psychiatric disorder is related to the Veteran's 1978 head injury in service or any other in-service manifestation. An opinion should be rendered for each psychiatric condition with which the Veteran is diagnosed. c.) Offer an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that any psychiatric disorder is caused or aggravated by the post concussive syndrome? The examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is not able to provide an opinion, he or she should explain why. 6. Readjudicate the claims for an initial rating higher than 10 percent for post concussive syndrome from October 23, 2008, TDIU, and service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability. If any of the claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claims. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs