Citation Nr: 1335950	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  04-31 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for coronary artery disease, from April 22, 2008.

2.  Entitlement to an increased rating for hypertension with atypical chest pain, currently evaluated as 10 percent disabling, from March 7, 2011.

3.  Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from July 1981 to June 1983.

These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2003 and July 2004 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Board notes that the appellant requested a hearing before a decision review officer (DRO) in connection with the current claims.  The DRO hearing was scheduled and subsequently held in October 2005 at the Buffalo RO.  The appellant testified at that time and the hearing transcript is of record.

This case was previously before the Board in July 2007, at which time it was remanded for additional development of the record.  Based on the receipt of additional evidence, the RO, by rating action dated November 2009, assigned a 30 percent evaluation for coronary artery disease, effective April 22, 2008.  In May 2010, the Board remanded the issues on appeal for further development.  In January 2013, the Board denied entitlement to an initial evaluation in excess of 10 percent disabling for coronary artery disease, prior to April 22, 2008, and entitlement to an increased rating for hypertension with atypical chest pain, currently evaluated as 10 percent disabling, prior to March 7, 2011, and remanded the issues listed above for further development.  These issues are now ready for adjudication.  

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  At no point since April 22, 2008, has the Veteran's coronary artery disease manifested episodes of congestive heart failure, a workload of 5 METs or less, or left ventricular dysfunction with an ejection fraction of 50 percent or less.

2.  At no point since March 7, 2011, has the Veteran's hypertension manifested by blood pressure measurements of diastolic pressure of 110 or more or systolic pressure of 200 or more.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 30 percent disabling for coronary artery disease, for the period beginning April 22, 2008, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005 (2013).

2.  The criteria for an evaluation in excess of 10 percent for hypertension, for the period beginning March 7, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

In a claim for an increased evaluation, the VCAA requirement is generic notice, that is, 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).

In June 2003 and December 2003 letters, the RO provided notice to the appellant regarding what information and evidence was needed to substantiate the claims for TDIU, a higher initial evaluation for coronary artery disease, and an increased rating for hypertension, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  

A May 2005 letter provided the Veteran with information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  After issuance of the June 2003, December 2003, and May 2005 letters, and opportunity for the Veteran to respond, the July 2013 Supplemental Statement of the Case (SSOC) reflects readjudication of the claims.  Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim).  

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA treatment records.  The appellant was afforded VA medical examinations in April 2008, March 2013, April 2013, and May 2013, and obtained a medical opinion in June 2013.  

As noted by the Board in January 2013, the case was previously remanded in June 2010 for attempts to be made to obtain all available records from the Social Security Administration.  In January 2013, the Board found that in accordance with the mandate of the January 2013 remand, additional attempts were made to obtain these records, however, as reflected in a March 2011 formal finding of unavailability, such records are unavailable.  It is noted that the Veteran was informed of this in March 2011 and informed that he had 10 days to submit additional evidence.

In January 2013, the Board remanded the Veteran's claims for additional VA treatment records to be associated with the claims file, for the Veteran to be sent a letter asking for the Veteran to identify additional treatment and provide authorization for VA to obtain treatment records regarding the identified treatment, and for the Veteran to be afforded an examination regarding whether his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment.

Subsequently, additional VA treatment records were obtained and associated with the claims file, the Veteran was sent a letter in February 2013 requesting that he identify additional treatment, and the Veteran was afforded examinations in March 2013, April 2013, and May 2013, and a medical opinion was obtained in June 2013.

Therefore, based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand.  See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Significantly, neither the appellant 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 appellant is required to fulfill VA's duty to assist the appellant 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).

II.  Higher Evaluation

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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 concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A.  Coronary Artery Disease

The Veteran seeks entitlement to an initial evaluation in excess of 30 percent for coronary artery disease, from April 22, 2008.

The Veteran's atherosclerotic coronary artery disease is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7005.  This Diagnostic Code provides for a 10 percent evaluation for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required.  A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray.  A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7005. 

A note prior to the Diagnostic Code explains that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.  38 C.F.R. § 4.104, Note (2). 

VA revised the regulation that pertains to the evaluation of specified cardiovascular disorders, those rated under Codes 7000 through 7007, 7011, and 7015 through 7020 effective from October 6, 2006.  See 38 C.F.R. 4.100.  The revised regulation did not alter the rating criteria under Diagnostic Code 7005 as outlined above; however, it contains the following new provisions: (1) in all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained.  (2) even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis.  (3) if left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the Veteran's cardiovascular disability.

The Veteran was afforded a VA medical examination in April 2008.  Exercise testing was noted to be contraindicated due to arthritic condition and, therefore, METs were estimated.  The Veteran had METs of approximately 7 to 8.  The estimated left ventricular ejection fraction was greater than 55 percent.

An April 2008 echocardiogram revealed normal left ventricular function.  The left ventricular ejection fraction was greater than 55 percent and there was borderline concentric left ventricular hypertrophy.  The right ventricle was mild to moderately dilated.  

An August 2011 stress test revealed a LV Function of greater than 50 percent, normal.  An August 2011 echocardiogram was noted to be unremarkable.  In August 2011 it was noted that the Veteran had no findings of uncontrolled heart failure.

In September 2011 the Veteran was noted to have mild concentric left ventricular hypertrophy.  Left ventricular ejection fraction was greater than 55 percent.

In October 2011 the Veteran underwent a cardiology consultation.  The results of the August 2011 stress test were discussed.  It was noted that persantine cardiolite myocardial perfusion image study demonstrated evidence for mild mostly fixed perfusion deficits suggestive of remote infarct noted in the apico anterior and basal anterior segments of the left ventricle with the partial reversibility noted in the mid anterior segment suggestive of mild peri-infarct ischemia.  There was a normal ejection fraction of the left ventricle by the gated SPECT 59 percent at rest and 66 percent at post persantine.  It was noted that there was mild concentric left ventricular hypertrophy on a September 2011 echocardiogram.  The assessment included discussion of the stress test results as well as the echocardiogram results and indicated that the Veteran's current symptoms were minimal and atypical.  He had risk factors for coronary artery disease and while conservative medical management was appropriate at the time, he needed to be followed.

An evaluation in excess of 30 percent disabling, for coronary artery disease, from April 22, 2008, is not warranted.  Since April 22, 2008, the Veteran's coronary artery disease has not manifested episodes of congestive heart failure, a workload of 5 METs or less, or left ventricular dysfunction with an ejection fraction of 50 percent or less.  It is noted that in October 2011 it was noted that the Veteran's symptoms were minimal and that the Veteran would have to be followed.  As the preponderance of the evidence is against the claim, entitlement to an evaluation in excess of 30 percent disabling, for coronary artery disease, from April 22, 2008, is denied.

B.  Hypertension with Atypical Chest Pain

The Veteran seeks entitlement to an evaluation in excess of 10 percent disabling for hypertension, for the period beginning March 7, 2011.  The Veteran's service-connected hypertension disability is rated under Diagnostic Code 7101. 

Under Diagnostic Code 7101, a 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  A 40 percent disability rating is warranted for diastolic pressure predominantly 120 or more.  A 60 percent rating is warranted for diastolic pressure predominantly 130 or more.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.

The criteria are disjunctive.  See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).

Review of the medical evidence reveals the following blood pressure measurements:

March 2007 - 135/75
April 2007 - 120/80
September 2007 - 116/76
March 2008 - 138/72
September 2008 - 138/77, 120/72
November 2008 - 115/70
March 2009 - 151/91, 130/84
May 2009 - 121/80
June 2009 - 140/84, 137/89
August 2009 - 115/80
September 2009 - 134/86
February 2010 - 113/71
April 2010 - 120/72
August 2010 - 123/81
November 2010 - 137/63, 118/63, 119/66, 123/67, 107/67, 107/57
December 2010 - 132/62, 151/82, 131/74, 130/76
March 2011 - 110/63
May 2011 - 118/66
June 2011 - 116/61
August 2011 - 111/59
September 2011 - 130/80, 97/52
October 2011 - 118/65, 121/67
March 2012 - 119/71
November 2012 - 111/67
March 2013 - 112/68

Review of the medical evidence of record dated since March 7, 2011, does not reveal any blood pressure measurements of diastolic pressure of 110 or more or systolic pressure of 200 or more.  As such, entitlement to an evaluation in excess of 10 percent disabling for hypertension for the period beginning March 7, 2011, is denied.

C.  Extraschedular Consideration

The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected coronary artery disease and hypertension disabilities.  The Veteran's disabilities are manifested by impairment of heart function and the necessity to monitor and control blood pressure.  The rating criteria contemplate these impairments; hence, referral for consideration of an extraschedular rating is not warranted.  Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

Entitlement to an initial evaluation in excess of 30 percent for coronary artery disease, from April 22, 2008, is denied.

Entitlement to an increased rating for hypertension with atypical chest pain, currently evaluated as 10 percent disabling, from March 7, 2011, is denied.


REMAND

The Veteran seeks entitlement to a TDIU.  The Veteran contends that his service-connected disabilities render him unemployable.

The Veteran is in receipt of service-connected benefits for bilateral pes planus, evaluated as 10 percent disabling, effective May 1, 2985, and 30 percent disabling, effective April 28, 1999; coronary artery disease associated with essential hypertension with atypical chest pain, evaluated as 10 percent disabling, effective October 12, 2000, and 30 percent disabling, effective April 22, 2008; flat topped talus of the right foot with arthritic changes, evaluated as 20 percent disabling, effective April 28, 1999; essential hypertension with atypical chest pain, evaluated as 10 percent disabling, effective June 18, 1983; and migraine headaches associated with essential hypertension with atypical chest pain, evaluated as 10 percent disabling, effective August 31, 2004.  The Veteran's current combined evaluation is currently 70 percent disabling.

The Board notes that disabilities resulting from a common etiology and disabilities affecting a single body system, e.g. cardiovascular-renal, are considered as one disability for the purpose of one 60 percent disability, or one 40 percent disability in combination.  See 38 C.F.R. § 4.16(a).

As the Veteran's coronary artery disease, hypertension, and migraine headaches arise from a common etiology, these disabilities together have a combined disability evaluation of 40 percent disabling, effective April 22, 2008.  See 38 C.F.R. § 4.25 (2013).  As the Veteran's overall combined disability evaluation in 70 percent disabling, effective April 22, 2008, the Veteran meets the schedular criteria for a TDIU effective April 22, 2008.  38 C.F.R. § 4.16(a).

The claims file reveals records of interaction with the Vocational Rehabilitation Center of Niagra County in September 1985.

At a hearing in October 2005, the Veteran reported that he was never advised by his doctor not to work due to his service-connected disabilities.  The Veteran indicated that he had tried to work but that all of the jobs he was looking at wanted him to start at the bottom and work his way up.  He reported that these entry level jobs required lifting and doing manual labor and that the last time he was employed was in 1991 in a telemarketing job.  

In April 2008 the Veteran was afforded a VA hypertension and coronary artery disease examination.  The Veteran reported that he did not do any yard work or snow removal anymore because of his chest pain.  He was able to do light house work and his grocery shopping.  He last worked in 1991 doing telemarketing, which he only did for approximately one month.  He reported that he had difficulty with his job performance.  He had not done any work since that time because he was only trained for physical labor and he reported that physical labor is difficult for him secondary to both the chest pain as well as his arthritis and foot pain.  He was noted to want to be retrained for sedentary type work and had applied for vocational rehabilitation; however, he was denied.  The examiner found that the Veteran would have difficulty with any type of physical employment due to his service-connected condition.  He seemed to get chest pain with exertion and therefore would not be able to complete physical labor.  The examiner noted that the Veteran would be able to work in sedentary work with these service-connected conditions.  However, the examiner noted that the Veteran was not trained for any sedentary work and requested vocational rehabilitation.  

After examination in March 2013 it was noted that the Veteran's hypertension disability did not impact his ability to work.

After examination in March 2013 in regard to the Veteran's feet the Veteran was noted to report that he is unable to work and last worked in 1991 at telemarketing, a sedentary type of job.  He stated that he was generally unable to work secondary to his feet and some other general medical problems (chest pain and hypertension).  The Veteran reported difficulty standing, walking, lifting and going up and down stairs.  He reported having trouble focusing and concentrating and with his short-term memory due to his migraine headaches.  He also indicated that he sometimes had problems with his vision when he had migraine headaches.  He stated that he also developed shortness of breath if he overexerted himself.  He reported becoming easily fatigued and that in the past he had to take naps in order to keep his energy level up.  He indicated that he could do a type of job that allowed him to sit down as long as he could take breaks.  He felt that he was not able to get a desk job because he would have to work his way up to that by doing other physical type of jobs first.  

After examination in April 2013 the Veteran's headaches were noted to impact his ability to work.  The Veteran reported that when he has a headache it is difficult to concentrate and he felt it also affected his memory.

In May 2013 a clinical psychologist took a complete history of the Veteran as part of a Social and Industrial Survey.  The Veteran indicated that he had done research and that he found that people with high blood pressure and migraine headaches should not work.  The Veteran reported that he was a high school graduate, took some college courses while in the military, and took computer training.  

Subsequently, in June 2013, based upon a review of the records including the VA examination reports and the social and industrial survey, a VA examiner rendered the opinion that the Veteran was unemployable in physical work due to difficulty with prolonged weight bearing secondary to service-connected pes planus.  Sedentary work however could be performed by the Veteran.  The Veteran was noted to have reported that his migraine headaches were not prostrating.  The examiner noted that the Veteran would not have to stand for prolonged periods of time either.  The examiner found that employability in sedentary work was possible for the Veteran if he is trained for this type of work.

Review of the claims file reveals that the Veteran filed applications for Vocational Rehabilitation through VA in July 1988, July 2000, and July 2004.  However, the records regarding these applications have not been associated with the Veteran's claims file.  As the examiners have indicated that the Veteran is employable in sedentary work if he is trained for this type of work, the Board finds it necessary to remand this claim for attempts to be made to obtain and associate the Veteran's Vocational Rehabilitation application records.  See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1); Bell v. Derwinski, 2 Vet. App. 611 (1992).

If, and only if, records regarding the Veteran's application for Vocational Rehabilitation are associated with the claims file, forward the claims file to the examiner who rendered the opinion in July 2013 for preparation of an addendum taking into account these records.  

Accordingly, the case is REMANDED for the following action:

1.  Take all appropriate action to obtain and associate with the claims file the records regarding the Veteran's application for Vocational Rehabilitation services.  All attempts to obtain these records should be noted in the claims file.

2.  Thereafter, return the claims file to the examiner who prepared the July 2013 VA medical opinion, or if the examiner is no longer available, a suitable replacement, for preparation of an addendum regarding the impact that the Veteran's service-connected disabilities have on his employability.  The claims file must be made available for review and the examiner's report should reflect that such review occurred.  All pertinent symptomatology and findings must be reported in detail.  Based on review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or maintain substantially gainful employment due only to his service-connected disability(s), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders.  A rationale should be provided for all opinions expressed in the report.

3.  Thereafter, readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted in full, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond.

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).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs