Citation Nr: 1331544 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 09-30 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbar strain. 2. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Kenneth Lavan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to April 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board previously remanded the claim for an increased disability rating for lumbar strain in April 2012. The remand provided that the Veteran should be afforded a VA examination for his lumbar spine disability. The Board is satisfied that the RO has substantially complied with its April 2012 remand directives regarding the claim for an increased disability rating for lumbar strain. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to a TDIU is addressed in the REMAND is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. FINDING OF FACT For the entire increased rating period, the Veteran's service-connected lumbar strain has been manifested by forward flexion of 60 degrees or greater and has not been manifested by favorable ankylosis of the entire thoracolumbar spine or by incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbar strain have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The information required by Vazquez was provided in a December 2008 letter. This letter notified the Veteran of what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. This letter included provisions for disability ratings and effective dates. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of 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. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. The record includes service treatment records and post-service private and VA treatment records and the Veteran's Social Security records. The Veteran has not identified any outstanding evidence that is pertinent to this claim. Moreover, the Veteran underwent adequate and probative VA medical examinations. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran had a VA examinations in May 2008 and January 2013. The Board finds that the VA opinions and findings obtained in regard to his increased rating claim are adequate. The examiners reviewed the Veteran's medical history and recorded pertinent examination findings. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Next, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in June 2011. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the October 2009 hearing, the undersigned Veterans Law Judge stated the issues on appeal. The Veterans Law Judge elicited information from the Veteran with regard to the severity of the symptoms of his disability and as to whether the Veteran would be willing to attend another VA examination to evaluate his disability. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided adequate examinations to the Veteran. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Ratings - Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court held in Hart v. Mansfield, 21 Vet. App. 505 (2007), that 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. The Court recognized that if VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular 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. 38 C.F.R. § 4.59. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Increased Rating for Lumbar Strain A July 1989 rating decision granted service connection for lumbar strain. A 10 percent rating was assigned from March 1989. In April 2008, the Veteran submitted a claim for an increased rating. An August 2008 rating decision increased the disability rating to 20 percent. At the hearing, the Veteran asserted that his lumbar strain keeps increasing in severity. Lumbar strain is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Veteran had a VA examination in May 2008. The VA examiner indicated that the claims file was reviewed. The Veteran reported a 30-year history of chronic low back pain, which was progressively getting worse. The Veteran reported constant pain, a dull ache, which he rated as 7/10. The pain was worse with movement and rotational activity and was non-radiating. The Veteran reported that he had received physical therapy and chiropractic medicine with mild relief of his symptoms. The Veteran reported a history of fatigue, decreased motion stiffness, weakness, spasms and pain. The Veteran denied incapacitating episodes. Upon physical examination, the Veteran had flexion to 60 degrees. He had extension to 15 degrees. He had left and right lateral rotation to 20 degrees and left and right lateral flexion to 20 degrees. The VA examiner noted that there was objective evidence of pain following repetitive motion. The VA examiner noted that there were no additional limitations after three repetitions of range of motion. The VA examiner noted normal muscle tone, normal sensory examination and normal reflexes. The Veteran submitted a functional capacity questionnaire from a private physician, dated in November 2008. The report noted a current diagnosis of lumbar pain. The evaluating physician indicated that the Veteran could sit for 10 minutes and stand for five minutes at a time. The report indicated that the objective medical findings would be consistent with the need of the patient to sit in a recliner or lie down for one hour a day. The report indicated that the Veteran could sit for less than 2 hours, stand for less than 2 hours and walk for less than 2 hours. The report noted that the Veteran must use a cane or other assistive device when standing or walking. A VA physical medicine consultation dated in November 2008 reflects that the Veteran reported lumbar spine pain radiating to the right lower extremity. The report noted that the Veteran walked with a cane. At the Board hearing in June 2011, the Veteran testified that he is constantly in pain. The Veteran testified that he uses Motrin. He testified that he uses a cane for walking. The Veteran testified that he also used a TENS unit for his back pain. The Veteran had a VA examination in January 2013. The VA examiner indicated that the claims file was reviewed. The Veteran reported daily low back pain and numbness in the right leg at the vein graft site since a cardiac bypass in 2009. The Veteran denied flare-ups impacting the function of the thoracolumbar spine. Upon physical examination, the Veteran had forward flexion of 75 degrees with painful motion beginning at 75 degrees. The Veteran had extension to 15 degrees with painful motion beginning at 15 degrees. The Veteran had right lateral flexion to 20 degrees, with pain at 20 degrees. He had left lateral flexion to 15 degrees, with pain at 15 degrees. The Veteran had right and left lateral flexion to 30 degrees, without objective evidence of painful motion. On repetitive motion testing with three repetitions of motion, the Veteran had forward flexion to 75 degrees and extension to 15 degrees. The VA examiner noted that the Veteran did not have additional loss of range of motion after repetitive-use testing. The VA examiner indicated that the Veteran did have functional impairment of the thoracolumbar spine after repetitive use. The VA examiner noted that the functional loss included less movement than normal and pain on movement. Muscle strength testing showed normal strength of hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension. Reflex examinations showed normal reflexes in both knees and hypoactive reflexes of both ankles. Sensory examination showed normal sensation to light touch in the upper anterior thigh, the thigh and knee and foot and toes. The Veteran had decreased sensation in the right lower leg and ankle and normal sensation in the left lower leg and ankle. The Veteran had negative straight leg raising tests for the right and the left. The VA examiner noted that the Veteran did not have radicular pain or any other sign or symptoms due to radiculopathy. The VA examiner indicated that there were no other neurologic abnormalities or findings related to the thoracolumbar spine. The VA examiner noted that the Veteran did not have incapacitating episodes. The VA examiner opined that decreased sensation of the right leg is most likely secondary to the vein graft site after coronary artery bypass. The Board finds that the criteria for a rating in excess of 20 percent for lumbar strain have not been met. Under the General Rating Formula, the criteria for a 40 percent rating are met when forward flexion of the thoracolumbar spine is 30 degrees or less or when there is favorable ankylosis of the entire thoracolumbar spine. In this case, during the appeal period, the Veteran had forward flexion of the thoracolumbar spine of no worse than 60 degrees. There are no findings of ankylosis of the thoracolumbar spine. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. There was no additional limitation of motion with three repetitions of movement during the physical examinations that was related to pain, fatigue, incoordination, weakness or lack of endurance. Accordingly, the range of motion findings do not more nearly approximate the criteria for a rating in excess of 20 percent, even when painful motion is considered. The Board has considered the Veteran's reports of back pain in the VA examinations. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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. Id. at 11; see also 38 C.F.R. § 4.40. The evidence in this case does not show additional function loss or limitation of motion of the lumbar spine due to such factors as pain to more nearly approximate the criteria for a higher disability rating based upon limitation of motion. The evidence does not show incapacitating episodes having a total duration of assignable with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Therefore, a higher rating is not warranted based upon incapacitating episodes. The Board has considered whether a separate rating is warranted for neurological impairment associated with the Veteran's lumbar spine disability. Upon VA examination in May 2008, the VA examiner did not identify neurological impairment. The Veteran had normal sensory examination and normal reflexes. In this case, the 2013 VA examination reflects that there was no radiculopathy associated with the lumbar spine disability. The VA examiner noted decreased sensation of the right leg and right ankle, which are associated with the Veteran's cardiac bypass. The VA examiner indicated that there were no other neurologic abnormalities or findings related to the thoracolumbar spine. Accordingly, as there are no findings of neurological abnormalities associated with the Veteran's lumbar strain, a separate rating is not warranted for neurological abnormalities. For the reasons stated, the Board finds that a preponderance of the evidence is against the appeal for an increased rating higher than 20 percent for lumbar strain. As there is a preponderance of the evidence against the claim for an increased rating for low back disability in excess of 20 percent, the claim must be denied, and there remains no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 4.3, 4.7. Extraschedular considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, in the April 2012 remand, the Board found that the evidence reasonably raised the question of whether the Veteran's lumbar spine disability rendered him unable to sustain gainful employment. The Board noted the May 2008 VA examination which showed that the Veteran had not worked in one to two years. The Board noted that the 2008 examiner found that the Veteran's service-connected back disability had significant effects on his occupation. The Board found that referral for extraschedular consideration was warranted. In April 2013, the Director of Compensation and Pension reviewed the claim and determined that entitlement to an extraschedular rating in excess of 20 percent for lumbar strain under 38 C.F.R. § 3.321(b) was not warranted. The opinion noted that the Veteran's lumbar strain did not present such an unusual or exceptional disability picture with factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board notes that the January 2013 VA examination reflects that the Veteran reported that he was not working. He reported that he was on disability since a heart attack in 2009. Thus, based on the information reported in the January 2013 VA examination, the evidence shows that the cause of any marked interference with employment was not solely due to the due to service-connected lumbar spine disability. The evidence does not demonstrate frequent periods of hospitalization due to lumbar strain. Accordingly, the Board concludes that there is a preponderance of the evidence against the assignment of a rating in excess of 20 percent for lumbar strain on an extraschedular basis. ORDER An increased rating for lumbar strain in excess of 20 percent is denied. REMAND The Veteran's claim for entitlement to a TDIU requires further development. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Although the Board regrets the delay, the additional development of his claim is necessary to ensure that there is a complete record upon which to adjudicate this claim and to afford the Veteran every possible consideration. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In the April 2012 remand, the Board directed that, if the Veteran did not meet the criteria for a TDIU under § 4.16(a), the claim should be referred to the Director of Compensation and Pension for extraschedular consideration. Pursuant to that directive, the claim was referred to the Director of Compensation and Pension. In April 2013, the Director of Compensation and Pension provided an opinion which addressed entitlement to an increased rating for the service-connected lumbar strain on an extraschedular basis but did not address entitlement to a TDIU under § 4.16(b). The United States Court of Appeals for Veterans Claims has held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 168, 271 (1998). Because the Director of Compensation and Pension did not consider the issue of entitlement to a TDIU on an extraschedular basis under § 4.16(b), a remand is necessary to refer the case to the Director of Compensation and Pension for consideration of that issue, as directed by the April 2012 remand. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's TDIU claim under 38 C.F.R. § 4.16(b) to the appropriate VA compensation and pension officials for extraschedular consideration. 2. If the benefit sought is not granted, the Veteran and his representative should be provided a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The case should then be returned to the Board. 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs