Citation Nr: 1337246 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-45 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from January 1968 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In the October 2013 informal hearing presentation, the Veteran's representative indicated that additional evidence had been associated with the Veteran's claims file and waived RO consideration of the new evidence. 38 C.F.R. § 20.1304(c) (2012). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, as will be discussed below, the increased rating claim for the Veteran's PTSD is on appeal and the Board concludes that the Court's holding in Rice is applicable, and thus, the Veteran's TDIU claim is properly before the Board, and the issue has been listed on the title page. 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 in Washington, DC. FINDINGS OF FACT 1. For the period prior to October 4, 2013, the Veteran's PTSD was manifested by nightmares, flashbacks, difficulty sleeping, depression, irritability, hypervigilance, anger, hypersensitivity, intrusive thoughts, and impaired family and work relationships, productive of functional impairment comparable to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from October 4, 2013, the Veteran's PTSD was manifested by near continuous panic or depression, impaired impulse control, difficulty adapting to stressful circumstances, difficulty establishing and maintaining effective work and social relationships, depressed mood, anxiety, and chronic sleep impairment, productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to October 4, 2013, the criteria for an initial evaluation in excess of 30 percent for service-connected PTSD are not met. 38 C.F.R. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2013). 2. From October 4, 2013, the criteria for an evaluation of 70 percent, but no higher, for service-connected PTSD are met. 38 C.F.R. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). VA must inform the Veteran about the information and evidence that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the Veteran is expected to provide. 38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b)(1). The appeal for a higher rating for PTSD arose from a disagreement with the initial evaluation assigned following the grant of service connection for PTSD. As such, there is no duty to provide further VCAA notice. 38 C.F.R. § 3.159(b)(3). Rather, VA is only required to provide notice of the decision (under 38 U.S.C. § 5104) and a statement of the case (under 38 U.S.C. § 7105). The record reflects that these notices have been provided to the Veteran. VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA treatment records have been obtained and are in the claims file. Additionally, VA satisfied the duty to assist the Veteran by providing medical examinations to the Veteran. VA provided examinations to the Veteran in August 2009 and September 2010. Each examiner interviewed the Veteran and conducted a mental status examination, recorded clinical findings, and documented the Veteran's subjective complaints. As these examinations included sufficient detail as to the severity of the Veteran's service-connected disability, the Board concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) The Board finds the record as it stands includes adequate evidence to allow the Board to decide the issue on appeal. Additionally, the Veteran has not identified any relevant evidence that is outstanding. Thus, VA satisfied its duties to notify and assist the Veteran with his claim for an increased rating for his service-connected PTSD. As such, appellate review may proceed without prejudice to the Veteran. II. Merits of the Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2013). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). This appeal arises from the rating decision in which service- connection was established for PTSD. As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Criteria for rating disability due to PTSD are found in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2013). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2013). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). A 30 percent rating is warranted when the disorder is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The portion of VA's schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are some mild symptoms (depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (occasional truancy, or theft within the household), but when the individual is functioning pretty well and has some meaningful interpersonal relationships. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV, 46-47 (1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). Id. GAF scores ranging between 41 and 50 are assigned when there are serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting), or any serious impairment in social, occupational, or school functioning (no friends, unable to keep a job). Id. VA treatment records from June 2009 indicated the Veteran suffered from nightmares and flashbacks but his PTSD screening was negative. An August 2009, VA treatment record indicated the Veteran reported difficulty sleeping, and that he is easily angered. The August 2009 record stated the Veteran's mood appeared euthymic, his affect appropriate, his speech was goal directed, and his insight, judgment and impulse control appeared adequate. In August 2009, the Veteran was diagnosed with depression, which he associated with his employment situation because he was a representative for an automobile wholesaler and business had been declining, creating pressure on finances. He denied suicidal ideation or intent. The Veteran was afforded a VA examination in August 2009 to assess the nature and etiology of his PTSD, as well as the severity of any symptomatology which may have been present. During the examination, the Veteran reported decreased sleep, nightmares, hypervigilance, irritability, anger, hypersensitivity and intrusive thoughts. The Veteran was described as alert and oriented with normal speech and thought processes. He also displayed euthymic mood with affect appropriate to contexts. No psychotic symptoms were evinced. The notes indicated the Veteran was calm and cooperative. The examiner diagnosed the Veteran with PTSD and opined that the Veteran appeared to be functioning with a mild-moderate level of difficulty and assigned a GAF score of 55. In September 2009, a VA treatment record noted that the Veteran reported that he was more aware of his words and of his tone of voice. He also identified strategies to address issues in family and work situations. In October 2009, VA treatment records indicated the Veteran was alert and oriented and denied suicidal ideation. Additionally, records indicated there no evidence of any thought disorder, and the Veteran's mood was anxious and irritable and his affect constricted. However, his memory was intact, his judgment was fair, and his impulse control was adequate. The record noted the Veteran's insight was fair and speech was goal directed and fluent. Another October 2009 record indicated the Veteran's affect was appropriate to mood and his mood was anxious, depressed and irritable. In June 2010, the Veteran sought treatment at the Secaucus Vet Center. June 2010 Vet Center records indicated that the Veteran was negative for any suicidal or homicidal thoughts. Additionally, the Veteran did not report any significant impairment in social or occupational functioning, nor did he experience any depression, irritability, depression, delusions, disorganized thinking or disturbed sleep. Several June 2010 Secaucus Vet Center records stated Veteran's mood and affect remained congruent during the session. A July 2010 Vet Center record indicated the Veteran was cooperative and friendly with no exaggerated or frustrated motor activity. Furthermore, Veteran did not display or claim any thought disorder, hallucinations or delusions nor did he show impaired concentration, memory or judgment. His speech was normal and appropriate. The Veteran also reported he is able to control his anger better. In August 2010 records, the Veteran's mood and affect were congruent throughout the sessions. A specific August 2010 Vet Center record, stated the Veteran did not display impairment in concentration, memory or judgment. The Veteran was afforded another VA examination in September 2010 to determine the severity and manifestations of his service-connected PTSD. During the examination, the Veteran reported irritability and anger manifested by verbal outbursts at his wife, as well insomnia and nightmares. The notes indicated the Veteran well groomed, calm and reticent, and his mood and affect were subdued. There were no disorders of speech or communication processes and suicidal and homicidal ideation were absent. The examiner noted no evidence of disorder of thought process and the Veteran's general cognitive functions and memory were intact. The September 2010 VA examination assigned a GAF score of 55. A September 2010 Secaucus Vet Center record also described the Veteran's mood as appropriate. Furthermore, the Veteran had no observable or subjective change in his ability to concentrate, memory, judgment, nor was there evidence of any thought disorder, delusions or hallucinations. The Veteran's speech was normal with no noticeable aberration in rate, rhythm or content. In October 2010, a Vet Center treatment record stated the Veteran admitted to having a low frustration tolerance but his ability to hold his tongue has improved, his mood and affect were congruent and appropriate to the topics discussed and no motor agitation was noticeable. A November 2010 Vet Center record indicated the Veteran had nightmares and hypervigilance. The Veteran also described problems with his family relationships and work relationships. In a December 2010 record, the notes indicated that the Veteran's mood seemed flat but he stated he was feeling fine and discussed positive change in his relationship with a family member but expressed continuing troubles at work and an increase in nightmares. In January 2011, February 2011, and March 2011, Secaucus Vet Center records stated the Veteran's mood and affect were congruent and Veteran's mood was appropriate to topics discussed. In March 2011, Vet Center notes indicated the Veteran still had feelings of anger but did not have as many outbursts as in the past. The Veteran also stated, in an additional March 2011 record, that he was having more intrusive thoughts because he was less occupied at work but he also reported that he was sleeping better. A June 2011, Vet Center record stated that the Veteran's cognitive function was intact with good judgment, impulse and emotional control. The Veteran was described as having normal affect. The record also indicated that the Veteran's short and long term memory seemed intact. The Veteran reported continuing difficulties with anger at home and at work. A July 2011, Vet Center record indicated that the Veteran's affect was normal and that he showed no evidence or complains of psychotic symptoms. Additionally, the Veteran's cognitive function was intact and his short and long term memory seemed intact. However, the record noted that the Veteran complained his short term memory was not good. The record also indicated that the Veteran had good judgment and emotional control and fair impulse control but that he had experienced an increase in angry outbursts at work. He denied any suicidal or homicidal ideation. The Veteran continued to have sleep disturbances and irritability. In November 2011, the Veteran was contacted as he had not attended treatment sessions. The Veteran reported continuing issues with his family. He stated his symptoms have generally remained constant but he had experienced less patience with his family. He also reported a lack of nightmares even when exposed to something that would have trigged nightmares previously. A May 2013 Secaucus Vet Center record indicated the Veteran denied suicidal or homicidal ideation. His affect was presented as congruent with the topic of discussion. The Veteran reported nightmares, startled responses and intrusive thoughts. Finally, a July 2013 Vet Center intake assessment indicated the Veteran reported intrusive thoughts, insomnia and anger reactions capable of harming relationships with family members and his wife. He denied suicidal thoughts, anxiety and depression. His memory function was normal, his speech was appropriate, his mood affect was normal and his judgment was labeled as good. There was no evidence of delusions, disorganized thinking or hallucinations. The Veteran's representative solicited an October 2013 PTSD disability benefits questionnaire from a psychiatrist at the VA New Jersey Health System at Bergen. In this October 4, 2013 report, the Veteran was diagnosed with PTSD and major depression. The psychiatrist indicated that the Veteran exhibited occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. He also indicated the Veteran suffered from near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships, all of which are criteria within the 70 percent rating category. He also noted disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, depressed mood, anxiety, and chronic sleep impairment. In weighing the evidence, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent prior to October 4, 2013. Specifically, prior to the October 4, 2013 PTSD disability benefits questionnaire, the Veteran suffered from PTSD symptoms including depression, sleep impairment, irritability and exaggerated startle response which were described as mild-to-moderate in severity. Indeed, the Veteran's assigned GAF scores from the August 2009 and September 2010 VA examinations are indicative of mild-to-moderate symptomatology. Additionally, the evidence reflects that the Veteran had normal affect in the majority of the records. Furthermore, the evidence does not reflect any circumstantial, circumlocutory or stereotyped speech. The record does not reflect evidence of panic attacks, impaired judgment or impaired abstract thinking. The record does not reflect evidence related to difficulty in understanding complex commands and only notes one instance where the Veteran indicated his short-term memory was impaired. Thus, the majority of the criteria necessary for the 50 percent rating category were not met prior to October 4, 2013. However, it appears that the Veteran's PTSD symptomatology increased in severity, but based upon the evidence in this case, the exact onset of the Veteran's current symptoms or level of disability cannot be determined with any certainty. The earliest that that it can be factually ascertained that the Veteran met the criteria for the 70 percent rating category is October 4, 2013, the date of PTSD disability benefits questionnaire. Although some of the symptoms listed as examples for a 70 percent rating have not been evident, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. Thus, the Board finds that there has as likely as not been occupational and social impairment with deficiencies in most areas from October 4, 2013. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In light of this finding, the Board concludes that a 70 percent rating is warranted for service-connected PTSD from October 4, 2013. See 38 C.F.R. § 4.130. Although a 70 percent rating is warranted for PTSD from October 4, 2013, an even higher rating is not warranted. The evidence has not shown that the disability has resulted in total occupational and social impairment from October 4, 2013. Even the October 2013 PTSD disability benefits questionnaire, the report which reflected the most severe impairment, did not characterize the PTSD as total. The Board acknowledges that it was noted on VA examination in August 2009 that he had lost employment after 29 years due to his irritability, temper, difficulty taking orders, and friction with his supervisor. Nevertheless, the report indicted he had thereafter gained employment as an automotive wholesaler, and remained employed. Also, while the Veteran generally has an inability to maintain relationships, he nevertheless still has had a relationship with his wife and other family members. The severity of symptoms productive of functional impairment comparable to a total disability rating have not been shown by the evidence. Therefore, a total (100 percent) rating is not warranted. See Id. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In the instant case, all symptoms of the Veteran's PTSD are contemplated by the schedular criteria. The criteria provide examples of the types and degrees of symptoms for each level of compensation and the Veteran's symptoms do not deviate from those types of symptoms or from the severity of symptoms. Essentially, he has reported sleep disturbances, nightmares, irritability, and difficulty in relationships. All of those symptoms are consistent with those listed in the schedular criteria. As to the severity of the symptoms, the schedular criteria contemplate disability presenting a total occupational and social impairment, which is a level of disability that is greater than what the Veteran has been found to have. For these reasons, the Board declines to remand this matter for referral for extraschedular consideration. In sum, there is a basis for initial staged schedular ratings of 30 percent prior to October 4, 2013, and of 70 percent from October 4, 2013, for the Veteran's service-connected PTSD. Change to even a higher rating is not warranted by the preponderance of evidence. Therefore, benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD is not warranted prior to October 4, 2013. 2. From October 4, 2013, entitlement to a 70 percent evaluation, but no higher, for service-connected PTSD is granted, subject to the provisions governing the award of monetary benefits. REMAND The Board finds it necessary to remand the issue of entitlement to a TDIU, to the agency of original jurisdiction for additional development and consideration. As noted in the Introduction, the issue of a TDIU is raised by the record. Specifically, in a statement dated October 30, 2013, and received in November 2013, the Veteran reported that he had been terminated from employment on October 19, 2013 due to what he believed was a bad attitude at work, resulting in multiple disagreements with his supervisor. He indicated he believed his temper was due to his PTSD that caused him to anger easily. A request for a TDIU, whether expressly raised by a Veteran 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 which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. The Veteran has not been provided a VCAA notice letter for his TDIU claim. Additionally, the record does not contain a current, adequate medical opinion, based upon a thorough review of the record, regarding whether the Veteran's service-connected disabilities cause him to be unemployable. Such an opinion would be useful in adjudication of the appeal. Accordingly, the case is REMANDED for the following actions: 1. Issue a notice letter to the Veteran and his representative as to the information and evidence necessary to substantiate a claim for a TDIU, to include discussion of the criteria for consideration in the assignment of an effective date, in the event of award of the benefit sought. The Veteran and his representative should be given an opportunity to respond to this notice, and any additional information or evidence received should be associated with the claims file. 2. Provide the Veteran a VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability," for completion and return to VA. 3. Thereafter, schedule the Veteran for a VA examination and request that, following clinical evaluation of the Veteran, the examiner provide an opinion as to whether it is at least as likely as not (50 probability or more) that the Veteran's service-connected disabilities (PTSD, tinnitus and bilateral hearing loss), considered in combination, without consideration of his non service-connected disabilities and without regard to his age, preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. The complete record, to include a copy of this Remand, the claims folder, and Virtual VA records, must be made available to and reviewed by the examiner in conjunction with the examination. The term at least as likely as not does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 4. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Finally, after undertaking any other development deemed appropriate, adjudicate the issue of entitlement to a TDIU. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case, and afford them an opportunity to respond before the record 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs