Citation Nr: 1337330 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-14 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation (rating) in excess of 0 percent for service-connected uterine fibroids, post myomectomy and embolization, prior to August 11, 2011, and in excess of 10 percent thereafter. 2. Entitlement to an initial evaluation (rating) in excess of 0 percent for service-connected varicose veins of the right leg prior to August 11, 2011, and in excess of 10 percent thereafter. 3. Entitlement to an initial evaluation (rating) in excess of 0 percent for service-connected varicose veins of the left leg prior to August 11, 2011, and in excess of 10 percent thereafter. 4. Entitlement to a total disability evaluation (rating) based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from May 1986 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In August 2011, the Veteran presented testimony relevant to the appeal before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is associated with the record. In November 2011, the Board granted an initial evaluation of 10 percent for varicose veins of the left and right legs from August 11, 2011, and denied an initial compensable evaluation for varicose veins of the left and right legs prior to August 11, 2011. The Board also granted a 10 percent rating for residual scar tissue status post myomectomy and embolization from August 11, 2011, denied a compensable rating for residual scar tissue status post myomectomy and embolization prior to August 11, 2011, denied a compensable rating for tinea pedis and onychomycosis, and remanded service connection for a kidney disorder and an increased initial rating for uterine fibroids. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2012, the VA's General Counsel and the Veteran's attorney (parties) filed a Joint Motion for Partial Remand (Joint Motion) asking the Court to vacate the portion of the Board's decision denying a compensable rating for varicose veins of the left and right legs prior to August 11, 2011 and remand the matters for further appellate review. The Joint Motion specifically stated that the Veteran did not contest the portion of the decision regarding entitlement to an increased initial disability rating for residual scar tissue, tinea pedis, and onychomycosis. In October 2012, the Court issued an order granting the Joint Motion, vacated the Board decision, and remanded the case to the Board. In September 2012, service connection was established for pyelonephritis with a 0 percent rating effective March 1, 2006 and the disability rating for uterine fibroids was increased to 10 percent effective August 11, 2011. Because service connection for a kidney disorder has been granted, that issue is no longer before the Board. The Veteran submitted additional evidence in July 2013 in support of the appeal. Through her representative, she has waived her right to its initial consideration by the agency of original jurisdiction (AOJ); therefore, the Board will consider the evidence in the first instance during the course of appellate review. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). Although entitlement to special monthly compensation (SMC) based on anatomical loss of a creative organ was denied in the unappealed October 2007 rating decision, the Board finds that the issue has again been raised by the record. See August 2011 Board hearing transcript, page 4. Therefore, the Board refers the matter to the RO for appropriate action. 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. Throughout the rating period, the Veteran's uterine fibroid disability has been manifested by symptoms of chronic vaginal discharge requiring changing pads at least daily, and intermittent swelling and pain in the abdominal or pelvic area, and symptoms are not controlled by continuous treatment. 2. Throughout the rating period, the Veteran's varicose vein disabilities have been manifested by intermittent edema of the right and left legs, and aching and fatigue in the leg after prolonged standing or walking, with some relief from pain medication, wearing compression hosiery, and elevation of the extremities. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, the criteria for an initial 30 percent rating for service-connected uterine fibroids, post myomectomy and embolization are met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.27, 4.116, Diagnostic Code (DC) 7699-7613 (2013). 2. Giving the benefit of the doubt to the Veteran, the criteria for an initial 10 percent rating, but no more, for service-connected varicose veins of the right leg are met for the portion of the rating period prior to August 11, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.104, DC 7120 (2013). 3. Giving the benefit of the doubt to the Veteran, the criteria for an initial 10 percent rating, but no more, for service-connected varicose veins of the left leg are met for the portion of the rating period prior to August 11, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.104, DC 7120 (2013). 4. The criteria for an initial rating in excess of 10 percent for service-connected varicose veins of the right leg are not met or approximated for the portion of the rating period from August 11, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.27, 4.104, DC 7120 (2013). 5. The criteria for an initial rating in excess of 10 percent for service-connected varicose veins of the left leg are not met or approximated for the portion of the rating period from August 11, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.27, 4.104, DC 7120 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 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). 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is challenging the initial disability ratings assigned for varicose veins of the right and left legs and uterine fibroids following the grant of service connection in the March 2006 rating decision. The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Furthermore, under 38 C.F.R. § 3.159(b)(3)(i), there is no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case. For these reasons, the Board finds that no further notice, beyond that afforded in the context of the claim for service connection, is needed under the VCAA. Regarding VA's duty to assist in claims development, the Veteran underwent multiple VA medical examinations in connection with the initial rating claims. Collectively, the VA medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA medical examiners took a thorough history of the disabilities from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment. The VA medical examiners had adequate facts and data regarding the history and condition of the disabilities. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The VA medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on her daily life and performed a thorough physical evaluation of the Veteran. Neither the Veteran nor the representative has alleged, and the evidence does not show, that there has been a material change in condition of the Veteran's disabilities since the last VA medical examinations. For these reasons, the Board finds that the VA medical examination reports are adequate for rating purposes, and there is no need for further medical examination. Also, the Veteran's complete service treatment records and post-service treatment records adequately identified as relevant to the appeal have been obtained, or otherwise submitted, and are associated with the record. The additional treatment records pertinent to the appeal found in the Virtual VA folder were considered by the RO in the first instance. See June 2013 Supplemental Statement of the Case. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the August 2011 Board hearing, the undersigned VLJ identified the issues on appeal and posed several questions throughout the hearing in order to solicit testimony regarding the symptoms of, and treatment for, the disabilities. The undersigned VLJ also held the record open for 30 days in order to allow the Veteran and the representative additional opportunity to submit evidence in support of the appeal. There did not appear to be any evidence that had been overlooked regarding the initial rating appeal for varicose veins, and the Board remanded the initial rating appeal for the uterine fibroid disability for additional VA treatment records and further medical examination. The Veteran has since submitted additional evidence describing symptoms and treatment related to the uterine fibroid disability. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were fulfilled. As noted above, the Board remanded the initial rating appeal for the uterine fibroid disability in November 2011 for additional VA treatment records, a VA medical examination, and readjudication of the appeal. Pursuant to the Board Remand directive, updated VA treatment records were obtained, and a VA medical examination was provided to the Veteran in March 2012. The appeal was readjudicated in June 2013. For these reasons, the Board finds that there was compliance with the prior Board remand directive. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence); see also 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). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of a veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Initial Rating Analysis for Uterine Fibroids The uterine fibroid disability was rated at 0 percent prior to August 11, 2011 and at 10 percent therafter under the criteria found at 38 C.F.R § 4.116, DC 7699-7613, for an unlisted condition closely analogous to a disease, an injury, or adhesions of the uterus. Upon review, the Board finds no other diagnostic code under which the Veteran's uterine fibroid disability is more appropriately rated. See Butts v. Brown, 5 Vet. App. 532, 540 (1993). Disabilities rated under DC 7613 are rated under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. Under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, a 0 percent rating is warranted for symptoms that do not require continuous treatment. A 10 percent rating is warranted for symptoms that require continuous treatment. A 30 percent evaluation is warranted for symptoms not controlled by continuous treatment. See 38 C.F.R. § 4.116. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether manifestations of the Veteran's uterine fibroid disability more closely approximate the criteria for a 30 percent rating under DC 7613 throughout the rating period. the evidence relevant to the rating period shows that the uterine fibroid disability has been manifested by symptoms of intermittent swelling and pain of the abdominal and pelvic area, and chronic vaginal discharge requiring changing pads at least daily, and the symptoms are not controlled by continuous treatment. At the March 2012 VA medical examination, the Veteran reported that she had had a chronic vaginal discharge of water fluid without odor or infection since service, and antibiotic treatment did not have any impact on the discharge. The March 2012 VA medical examiner noted that the Veteran had ongoing treatment for the uterine fibroid disability and had to wear panty liners due to the amount of discharge. The March 2012 VA medical examiner also noted that the medical literature showed that persistent vaginal discharge could result after uterine artery embolization for fibroid tumors, 94 percent of a patient's symptoms related to chronic vaginal discharge resolved spontaneously, and hysteroscopic resection of the cavity was usually curative. The VA treatment records are consistent with the Veteran's report of symptoms and treatment at the March 2012 VA medical examination. See, e.g., April 2008 VA transvaginal sonogram report (noting small amount of pelvic fluid); October 2010 VA treatment record (noting complaint of chronic vaginal discharge with odor and prescribing a topical medication for treatment); and the January 2012 VA treatment record (noting the Veteran's complaint of continued daily vaginal discharge with mild odor requiring daily use of a panty liner and prescribing an antibiotic for treatment). The Board notes the conflicting evidence of record regarding whether or not the Veteran's symptoms of the uterine fibroid disability have been controlled by continuous treatment during the rating period. For example, at the January 2006 pre-discharge examination, the Veteran reported that the symptom of irregular bleeding was controlled by treatment. Also, at the July 2010 VA medical examination, the Veteran reported that all her symptoms were responsive to therapy or treatment and that continuous treatment was not needed to control the condition. However, the Veteran has credibly reported that she has had symptoms of chronic vaginal discharge since service, and those symptoms were linked to the uterine fibroid disability by the March 2012 VA medical examiner. Although VA treatment records show attempts to treat the symptoms at various times by medical providers, none of the attempts have been successful as the Veteran has continued to complain of chronic vaginal discharge to treating medical providers during the rating period. In consideration thereof, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence demonstrates symptoms of the uterine fibroid disability that are not controlled by continuous treatment; therefore, a 30 percent rating under DC 7699-7613 is warranted for the entire rating period. The 30 percent rating is the maximum allowed under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. The Board has further considered whether the initial rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the current schedular 30 percent rating under DC 7613. The Veteran's uterine fibroid disability has been manifested by symptoms of chronic vaginal discharge requiring changing pads at least daily, and intermittent swelling and pain in the abdominal or pelvic area and the symptoms are not controlled by continuous treatment. The schedular criteria under DC 7613 contemplates all symptoms resulting from a disease, injury, or adhesions to the uterus and assign varying levels of compensation depending on whether the symptoms require and/or are responsive to treatment. The Veteran is in receipt of a 30 percent disability rating based on symptoms not controlled by continuous treatment, and the functional impairment associated therewith. See the March 2012 VA medical examination report (noting that the Veteran's uterine fibroid disability does not impact her ability to work). The rating schedule, which was designed as a guide for evaluating the average impairment in earning capacity as a result of disability, provides a maximum 30 percent rating for the degree of impairment demonstrated by the Veteran. Thus, the symptoms and functional impairment related to the Veteran's uterine fibroid disability are adequately compensated by the 30 percent disability rating under DC 7613. In consideration of the foregoing, the Board finds that manifestations of the Veteran's disability are fully contemplated in the current 30 percent rating under DC 7613. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's uterine fibroid disability, and referral for consideration of extraschedular rating is not necessary. Initial Rating Analysis for Varicose Veins Each of the varicose vein disabilities is rated at 0 percent prior to August 11, 2011 and at 10 percent thereafter under the criteria found at 38 C.F.R § 4.104, DC 7120 for varicose veins. Upon review, the Board finds no diagnostic code under which it would be more appropriate to rate the disability. See Butts, 5 Vet. App. at 540. Under DC 7210, a 0 percent rating is warranted for asymptomatic palpable or visible varicose veins. A 10 percent rating is warranted for intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is warranted for massive board-like edema with constant pain at rest. See 38 C.F.R. § 4.104. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran's varicose vein disability approximates the criteria for a 10 percent rating for the portion of the rating period prior to August 11, 2011. The evidence shows intermittent edema of the right and left legs during this portion of the rating period, which is consistent with the criteria for a 10 percent rating. Although the Veteran did not report edema of the legs at the January 2006 pre-discharge examination, and no edema was demonstrated at the January 2006 pre-discharge examination or at the July 2010 and August 2010 VA medical examinations, the Veteran told the July 2010 VA medical examiner that she had leg edema. She also testified before the Board that she had intermittent leg swelling. The Veteran is competent to report the observable manifestations of the disabilities, and there is no indication that the Veteran's report of leg edema is not credible; therefore, the Veteran's report of intermittent leg edema is of significant probative value. The evidence also shows aching and fatigue in the legs after prolonged standing or walking, which is consistent with a 10 percent rating. In statements provided throughout the rating period, to include those provided prior to August 11, 2011, the Veteran has competently and credibly reported that she had leg pain, particularly at night. See, e.g., December 2009 VA Form 21-4138 (wherein the Veteran referenced working on her feet for twenty years and wrote that she suffered from aches and pains in the thighs and legs, which was excruciating at night); July 2010 VA medical examination report (noting the Veteran's report of throbbing leg pain at night). Such statements tend to support a finding that the Veteran experienced aching and fatigue in the legs after prolonged standing and walking. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds the criteria for a 10 percent rating under DC 7120 have been approximated for each of the varicose vein disabilities for the entire rating period, to include the period prior to August 11, 2011. An initial rating for the varicose vein disabilities in excess of 10 percent, however, is not warranted under DC 7120 at any time during the rating period. Despite the Veteran's testimony at the Board hearing that varicose vein symptoms were not completely relieved with treatment, the evidence does not show persistent edema, which is a symptom required for a 20 percent rating under DC 7120. The Veteran testified at the Board hearing that the swelling was not constant and only came and went (i.e., was intermittent). See Board hearing transcript, page 10. Also, the fact that edema was not demonstrated at any VA medical examination performed in connection with the appeal provides further support for finding that the Veteran's edema during the rating period was intermittent, not persistent. Because the Veteran is competent to report the frequency of swelling, and the report of intermittent swelling is consistent with the medical evidence, it is deemed credible and of great probative value. Also, the Board has further considered the Veteran's report of pain at rest at the January 2006 pre-discharge examination and the July 2010 VA medical examination. At the Board hearing, the Veteran testified that the leg pain occurred "more at the end of the day." See Board hearing transcript, page 10. The July 2010 VA medical examiner noted that the visible varicose veins were palpable and superficial. This evidence is consistent with the criteria for the current 10 percent ratings and does not support the award of a higher rating under DC 7120. The Board has further considered whether the initial rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321; Thun, 22 Vet. App. at 111. In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the current schedular 10 percent ratings under DC 7120. The Veteran's varicose vein disabilities have been manifested by intermittent edema of the lower extremities and aching and fatigue in the leg after prolonged standing or walking, with some relief from pain medication, wearing compression hosiery, and elevation of the extremities. See Board hearing transcript, pages 9-11. The schedular criteria under DC 7120 contemplate symptoms of varicose veins and assign varying levels of compensation depending on the frequency and severity of symptoms. The Veteran is in receipt of 10 percent disability ratings for the left and right legs for the entire rating period for symptoms of intermittent edema of the lower extremities and aching and fatigue in the leg after prolonged standing or walking, with some relief from pain medication, wearing compression hosiery, and elevation of the extremities. The rating schedule, which was designed as a guide for evaluating the average impairment in earning capacity as a result of disability, provides a 10 percent rating for the degree of impairment demonstrated by the Veteran. Thus, the symptoms and functional impairment related to the Veteran's varicose vein disabilities are adequately compensated by the 10 percent disability ratings for the left and right legs under DC 7120. In consideration of the foregoing, the Board finds that manifestations of the Veteran's disabilities are fully contemplated in the current 10 percent ratings under DC 7120. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's varicose vein disabilities, and referral for consideration of extraschedular rating is not necessary. ORDER An initial rating of 30 percent for service-connected uterine fibroids, post myomectomy and embolization, is granted for the entire rating period. An initial rating of 10 percent for service-connected varicose veins of the right leg is granted for the portion of the rating period prior to August 11, 2011. An initial rating of 10 percent for service-connected varicose veins of the left leg is granted for the portion of the rating period prior to August 11, 2011. An initial rating in excess of 10 percent for service-connected varicose veins of the right leg is denied for portion of the rating period from August 11, 2011. An initial rating in excess of 10 percent for service-connected varicose veins of the left leg is denied for the portion of the rating period from August 11, 2011. REMAND The Board finds that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran in this case, and is part of the initial rating appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU is raised by inference when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran testified at the August 2011 Board hearing regarding symptoms associated with the uterine fibroid disability and the varicose vein disabilities, and has sought the highest ratings possible for the disabilities throughout the course of the appeal. Also, at the August 2011 Board hearing, the Veteran reported that she was not working; therefore, she has presented sufficient evidence of unemployability. See Board hearing transcript, page 6. Because the Board finds that the issue of entitlement to a TDIU has been raised, a remand for issuance of proper notice and development is warranted. Accordingly, the reopened claim is REMANDED for the following actions: 1. Provide the Veteran with proper notice explaining how to substantiate a claim for entitlement to a TDIU, to include which information and evidence that she is to provide, and which information and evidence that VA will attempt to obtain on her behalf. 2. After any development deemed necessary is completed, the remanded issue should be adjudicated. If the benefits sought on appeal remain denied, the Veteran and the representative should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and the representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs