Citation Nr: 1331852 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-37 118A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative joint disease of the right (dominant) hand, to include a higher rate of special monthly compensation (SMC) for the loss of use of the right (dominant) hand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from in the United States Navy from June 1964 to March 1972; United States Air Force from February 1988 to August 1992; and, United States Army from April 2006 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO, in part, granted service connection for degenerative joint disease of the right hand; an initial 10 percent disability rating was assigned, effective from April 26, 2007--the day after the Veteran was discharged from active military service. The Veteran appealed the 10 percent disability rating assigned to the above-cited service-connected disability to the Board. In March 2009, the Veteran failed to appear for a hearing before a Decision Review Officer at the above-cited RO. In addition, in a statement, received by the RO in April 2013, the Veteran withdrew his previous request for a hearing before a VLJ at the Waco, Texas RO (i.e., Travel Board (TB) hearing)). Thus, his TB hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e)(2013). In addition, the record shows that in a November 2009 statement to the RO, the Veteran raised the issue of entitlement to a higher rate of compensation of SMC for loss of use of the right hand. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in November 2009). This issue will be addressed as part of the Veteran's initial rating claim in the analysis below. Furthermore, the Veteran has also maintained that he cannot work as a dentist, in part, because of his service-connected right wrist disability. (See February 2008 VA general medical examination report). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his initial rating claim pursuant to Rice. In view of the foregoing, the TDIU issue will be considered by the Board in the Remand below. In an October 2007 statement to the Committee on Waivers and Compromise, the Veteran's representative raised the issue entitlement to waiver of overpayment of in the amount $ 32, 561.33. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is right hand dominant. 2. Throughout the appeal period, the Veteran's service-connected degenerative joint disease of the right hand has been manifested by right wrist dorsiflexion, plantar flexion and right ulnar deviation to 10 degrees and right radial deviation to 5 degrees and x-rays findings of extensive right wrist damage that are analogous to favorable ankylosis. 3. The Veteran has not effectively lost the use of his right hand due to his service-connected right hand disability. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial 30 percent disability rating, but no higher, for degenerative joint disease of the right hand have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.7, 4.71a, Plate I, Diagnostic Codes 5214-5215 (2013). 2. A higher rate for SMC for loss of use of the right hand has not been met. 38 U.S.C.A. §§ 1114(k); 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.350(a)(2), 4.71a, Diagnostic Code 5125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. This appeal arises, in part, from disagreement with an initial 10 percent disability rating following the grant of service connection for degenerative joint disease of the right hand in the appealed July 2008 rating action. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, any deficiency in the VCAA notice is not prejudicial and further VCAA notice is generally not required. Dunlap v. Nicholson, 21 Vet App 112 (2007); Dingess, supra. The United States Court of Appeals for the Federal Circuit has also held that additional VCAA notice is not required when there is an appeal from an initial grant of service connection. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, in view of the foregoing case precedent, the Board finds that no further VCAA notice was required once VA awarded service connection for degenerative joint disease of the right hand. Regarding the Veteran's claim for a higher rate for SMC for loss of use of the right hand, the Veteran was notified via a December 2009 letter of the criteria for establishing this entitlement, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if SMC for loss of use of the right hand is awarded. Although the Veteran was not provided notice of the criteria for establishing a higher rate of SMC for loss of use of the right hand until after adjudication of the intertwined initial rating claim in July 2008, The Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 39 (1993). The Board notes that following the provision of the required notice, the AMC readjudicate the intertwined initial rating claim in a November 2012 Supplement Statement of the Case based upon all evidence of record before the case was returned to the Board. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of the claim of entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right hand, to include a higher rate of SMC for loss of use of the right hand, therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bernard, supra. The RO has obtained the Veteran's service treatment records and VA treatment records and identified private treatment records. The Veteran's Social Security Administration (SSA) records are also contained in the claims files. Thus, in view of the foregoing, the Board finds that no outstanding evidence has been identified that has not otherwise been obtained and associated with the Veteran's physical claims files and electronic Virtual VA electronic claims file. In addition, in January 2011, VA examined the Veteran to determine the current severity of his degenerative joint disease of the right hand. A copy of the January 2011 VA examination report has been associated with the claims files. (See January 2011, VA hand, thumb and fingers examination report). The mere passage of time since this examination is not reason enough, alone, to require reexamination, despite the Veteran's representative's request for the same in April and July 2013 written arguments to VA associated with the physical claims files and uploaded to the Veteran's Virtual VA electronic claims file, respectively. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the service-connected degenerative joint disease of the right hand since the January 2011 VA examination. The January 2011 VA examiner conducted a pertinent physical examination of the Veteran's right hand. All questions necessary to render the determinations made herein were answered by the above-cited VA examiner. Thus, the Board finds that the January 2011 VA examination report is adequate upon which to rate the service-connected degenerative joint disease of the right hand under the relevant rating criteria in the analysis below. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). It follows that obtaining a new examination would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided); see also Soyini v. Derwinski, 1 Vet. App. 540 (1991). In light of the foregoing, the Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to the claims of entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative joint disease of the right hand, to include a higher rate of SMC for loss of use of the right hand such that no further notice or assistance is required to fulfill VA's duty to assist in the development of this 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), VA has complied with the duty-to-assist requirements. 38 U.S.C.A. § 5103A . II. Laws and Regulations General Rating criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]compensation for service-connected injury is limited to those claims which show present disability" and held: "Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." The Court later held that the above rule is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability, such as in this case. At the time of an initial rating, separate ratings can 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 (1999). Orthopedic rating criteria It should also be noted that 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 weakened movement, excess fatigability and incoordination. III. Merits Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim decided herein. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veteran seeks an initial disability rating in excess of 10 percent for his service-connected degenerative joint disease of the right hand. He contends that severe pain and limitation of motion of the right hand have caused him to leave his employment as a dentist; thus, he argues that the current symptoms associated with the condition involve a greater degree of impairment than is contemplated by the currently assigned 10 percent evaluation. By the appealed July 2008 rating action, the RO granted service connection for degenerative joint disease of the right hand; an initial 10 percent disability rating was assigned under Diagnostic Code 5215. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The RO based its award of service connection, in part, on service treatment records showing that the Veteran had received treatment for right wrist pain in October 2006. At that time, he was diagnosed with osteoarthritis of the right wrist and was treated with injections. The RO also based their determination on a February 2008 VA examiner's opinion that the Veteran's right hand degenerative joint disease had existed prior to military service and was aggravated therein. The RO has assigned the Veteran's service-connected degenerative joint disease of the right (major) hand an initial 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2013), the code used to evaluate limitation of motion in the wrist. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2013). The currently assigned 10 percent disability rating is the maximum disability available under Diagnostic Code 5215. However, under Diagnostic Code 5214, ankylosis of the wrist, a 30 percent disability rating will be assigned where there is evidence of favorable ankylosis in the major wrist in 20 to 30 degrees of dorsiflexion. A 40 percent disability rating will be assigned whether there is evidence of ankylosis of the major wrist in any other position, except favorable. A maximum 50 percent disability rating will be assigned where there is unfavorable ankylosis of the major extremity in any degree of plantar flexion, or with ulnar or radial deviation. 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2013). Extremely unfavorable ankylosis will be rated as loss of use of the hand under Diagnostic Code 5125. Id. Normal range of motion for the wrist is 70 degrees dorsiflexion (extension), 80 degrees palmar flexion, 45 degrees ulnar deviation, and 20 degrees radial deviation. 38 C.F.R. § 4.71, Plate I. VA examined the Veteran's right wrist in January 2011. At the examination, the examiner noted that the Veteran wore a wrist splint. It was noted that although the Veteran had undergone a microscopic debridement in November 2010 on his right wrist, he still experienced persistent sharp and stabbing pain and decreased movement. He related that he experienced sharp pain that was aggravated by flexion, gripping and daily hand shaking, was unrelieved with medication, and radiated into the "snuff box area" to the medial distal right forearm. He rated his right wrist pain an eight-and-a-half out of 10, with ten being the highest degree of severity. The Veteran stated that he had to stop practicing dentistry because of his right hand disability. He related that he could not perform home maintenance activities and that lifting and opening bottles and jars was difficult, if not impossible. However, the Veteran related that he was able to operate a motor vehicle and provide self care with increased use of his left (minor) hand. A physical evaluation of the right wrist in January 2011 showed that it had a circumference of 18 centimeters, as compared to 17 and three quarter centimeters on the left. There was fullness over the dorsum of the right hand, as compared to the left hand dorsum. There was no frank edema or erythema or increased heat over the right dorsum. The Veteran demonstrated right wrist dorsiflexion, plantar flexion and right ulnar deviation each to 10 degrees and right radial deviation to 5 degrees. Sensory stimulation was intact to light touch and vibration. X-rays of the right wrist showed no evidence of an acute fracture or dislocation. However, the navicular was deformed, which was suggestive of an old healed fracture. The joint space between the navicular and the radius was severely narrowed, nearly obliterated, with extensive marginal sclerosis and spurring and the space between the navicular and lunate was widened. Small corticated cysts were seen in the distal row of carpal bones, as well as the anterior aspect of the navicular. The cysts were thought to have been degenerative. The examiner diagnosed the Veteran with degenerative arthritis of the right wrist and a boutonniere deformity of the right fifth digits. (See January 2011 VA hand examination). The Board finds that, upon resolution of all reasonable doubt in the Veteran's favor, the above-cited evidence supports the assignment of an initial 30 percent disability rating for the Veteran's service-connected degenerative joint disease of the right wrist under Diagnostic Code 5214. The Board finds the clinical evidence showing that the Veteran wore a right wrist brace in conjunction with severe limiation of range of right wrist range of motion in all planes (i.e., dorsiflexion; plantar flexion; right ulnar deviation; and, right radial deviation) and x-ray evidence of nearly obliterated joint space between the navicular and the radius of the right wrist, analogous to favorable ankylosis of the right (major ) wrist in 20 to 30 dorsiflexion such as to warrant an initial 30 percent disability rating under Diagnostic Code 5214. 38 C.F.R. § 4.7a, Diagnostic Code 5214. The Board also finds that because the evidence of record does not disclose unfavorable ankylosis of the right (major) hand in any other position, an initial 40 percent disability rating is not warranted per Diagnostic Code 5214. The Board has specifically considered the guidance of DeLuca; however, the analysis in DeLuca does not assist the Veteran, as he is receiving the maximum disability evaluation for limitation of motion of the right wrist under Diagnostic Code 5215. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (remand improper for the Board to consider functional loss due to pain because appellant was in receipt of maximum evaluation for limitation of function of the wrist). In any event, the 30 percent assigned herein more than adequately compensates him for his ankylosis and pain and functional loss of the right hand. Indeed, the Board has liberally construed the applicable regulations and resolved all reasonable doubt in favor of the Veteran by: 1) acknowledging the wrist's extensive pathology and the significantly limited range of motion; and 2) finding that such symptomatology was analogous to favorable ankylosis even if the technical requirements under diagnostic code 5214 for the 30 percent rating herein assigned was not demonstrated. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's service-connected degenerative joint disease of the right hand, but finds that no other diagnostic code provides a basis for higher rating. The rating codes discussed above specifically pertain to orthopedic disability of the hand/wrist. The service-connected degenerative joint disease of the right hand has not been shown to involve any factors that warrant evaluation under any other provision of VA's rating schedule. Finally, the Board finds that throughout the entire appeal period, the preponderance of the evidence of record is against a higher rate of SMC for loss of use of the right hand. 38 U.S.C.A. § 1114(k) (West 2001); 38 U.S.C.A. § 3.350(a)(2)(i) (2013). Despite the Veteran's severe limitation of right hand range of motion and extensive damage as indicated per x-ray of the right wrist, he is able to operate a motor vehicle and provide self care, albeit with increased use of his left (minor) hand. Thus, the Board can not conclude that the Veteran has no effective ability to grasp; and manipulate with his right hand other than that which would be equally well served by an amputation stump at the site of election below the elbow with use of suitable prosthetic appliance. Accordingly, Board finds that the preponderance of the evidence is against a higher rate of SMC for loss of use of the right (major) hand. Id. Fenderson considerations Aside from the 30 percent assigned to the service-connected degenerative joint disease of the right (major) hand assigned herein, the Board has considered staged ratings, under Fenderson, supra, but concludes that they are not warranted. Extraschedular considerations In evaluating the Veteran's claim for an initial rating for the service-connected degenerative joint disease of the right (major) hand, to include a higher rate of SMC for the loss of use of the right hand, the Board also has considered whether he is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected right hand disability is inadequate. A comparison between the level of severity and symptomatology of this disability, with the established criteria found in the rating schedule, shows that the rating criteria reasonably describe the service-connected degenerative joint disease of the right (major) hand as discussed above. Indeed, as was explained in the decision above, higher ratings are available, and by assigning the next higher rating of 30 percent, the Board has resolved all reasonable doubt in the Veteran's favor. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required any hospitalizations for the service-connected degenerative joint disease of the right hand. While the Veteran reported having undergone a microscopic debridement on his right wrist in November 2010, this does not equate to hospitalization. Overall, there is no persuasive evidence in the record to indicate that the service-connected degenerative joint disease of the right hand would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Further, 38 C.F.R. § 4.1 (2013) specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected degenerative joint disease of the right hand has resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER An initial 30 percent rating, but no higher, for degenerative joint disease of the right (major) hand is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a higher rate of SMC for loss of use of the right (major) hand is denied. REMAND As noted above, the Veteran maintains that he had to stop employment as a dentist, primarily due to severe pain and limitation of motion of the right hand. Thus, the Veteran has expressly raised a claim of entitlement to a TDIU. A request for a TDIU due to service-connected disabilities, "whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities ... as part of a claim for increased compensation." Rice, 22 Vet. App. at 447 (citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). Of note is that the Veteran's service-connected PTSD has been assigned a 100 percent disabling rating from April 26, 2007. In VAOPGCPREC 6-99 (June 7, 1999), 64 Fed. Reg. 52375(1999), VA General Counsel concluded that a TDIU may not be considered when a 100 percent schedular evaluation already is in effect for one or more service-connected disabilities. However, the Court reached the opposite conclusion in Bradley v. Peake, 22 Vet. App. 280 (2008). It was recognized therein that no additional disability compensation may be paid when a total schedular evaluation is in effect. Yet also recognized was that special monthly compensation may be granted if there is an award of a TDIU predicated on a single service-connected disability (although perhaps not ratable at 100 percent) together with another service-connected disability evaluated at 60 percent or more. In light of the holding in Bradley, VA withdrew VAOPGCPREC 6-99. Entitlement to a TDIU, whether pursuant to Rice or otherwise, accordingly must be addressed. Doing so at this time would be premature, however. The Board cannot render a determination regarding the issue without there being prior notification, development, and initial adjudication of the TDIU claim as outlined in the indented paragraphs below. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a notification letter concerning his claim of entitlement to TDIU that complies with the notification requirements of 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and associated case law. In specific, this letter must set forth the criteria for establishing entitlement to a TDIU and include information on the evidence required in this regard, the Veteran's and VA's respective duties for obtaining evidence, and how VA determines disability evaluations and effective dates. 2. Provide a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to the Veteran. See M21-1MR, IV.ii.2.F.25.i. 3. Thereafter, evaluate any evidence received and determine whether any additional development is necessary, such as obtaining a VA examination or social and industrial survey. 4. After completion of the above, the AOJ should adjudicate the claim of entitlement to TDIU due to service-connected disability. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and afforded an opportunity to respond before the case is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs