Citation Nr: 1338189 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-36 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a temporary total rating (TTR) based on the need for convalescence following July 24, 2008, low back surgery. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). A Board videoconference hearing was held before the undersigned Acting Veterans Law Judge (VLJ), sitting in Washington, D.C. A copy of the transcript of that hearing is of record. In an August 2013 Board decision, the TTR claim was classified as part and parcel of the issue of entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. Subsequently, in a September 2013 rating decision, service connection was established for that lumbar spine disorder "with convalescence" and a 10 percent rating was assigned from January 18, 2000. Additionally, 10 percent ratings were assigned, effective from September 11, 2013, for radiculopathy to the right and left lower extremities. The RO, however, did not specifically discuss whether a TTR was warranted following July 2008 back surgery and no TTR date was assigned. That aspect of the claim remains open and is addressed in the decision below. The Board finds that the grant of service connection for DDD and associated radiculopathy constitutes a full award of the benefits sought on appeal with respect to the issue of entitlement to service connection for a lumbar spine disorder. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently before the Board contains no indication that the appellant has initiated an appeal with the initial ratings or effective dates assigned. Thus, those matters are not in appellate status. Grantham, 114 F.3d 1156, 1158 (Fed.Cir.1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The issue of entitlement to a TTR based on the need for convalescence following July 24, 2008, low back surgery is being addressed in the REMAND portion of the decision below. The claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDING OF FACT The competent evidence shows that, as of September 11, 2013, the Veteran was unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU, effective September 11, 2013, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, an October 2008 letter to the Veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The appellant was afforded the opportunity to testify before a VLJ in April 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the decision review officer (DRO) or VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Acting VLJ elicited testimony necessary to determine the nature of the appellant's claim regarding entitlement to a TDIU. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. Indeed, the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2013). The Board acknowledges that no VA examination was developed with respect to his TDIU claim for the period under appeal. However, the record does contain the reports of various VA examinations, including a December 2011 psychiatric examination and a September 2013 spine examination, in which the nature and severity of the Veteran's primary service-connected disabilities was evaluated by VA examiners. While the 2013 report does not contain a medical opinion as to whether the Veteran's disabilities rendered him unemployable, the report does contain assessments pertaining to the Veteran's functional impairment due to his service-connected spine disabilities. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). TDIU A TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. A Veteran's level of education, any special training, and previous work experience may be considered in arriving at a conclusion, but not the Veteran's age or impairment caused by disabilities that are not service connected. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2013). The critical inquiry for consideration is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If there is only one service-connected disability, it must be ratable at 60 percent or more. If there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. However, disabilities resulting from common etiology will be considered as one disability in determining whether these threshold minimum rating requirements are met. 38 C.F.R. § 4.16(a) (2013). As noted earlier, after the RO favorably resolved the Veteran's service connection for a lumbar spine disorder and associated bilateral radiculopathy in the September 2013 rating decision, his combined rating was 60 percent prior to September 11, 2013, and 70 percent thereafter. Therefore, the schedular criteria for a TDIU have been met as of September 11, 2013, but not before. See 38 C.F.R. § 4.16(a) (2013). Therefore, the claim for TDIU prior to September 11, 2013, must be considered under the criteria of 38 C.F.R. § 4.16(b) (2013). Remaining for resolution is the question of whether there is probative evidence of his unemployability because of service-connected disabilities. See Hodges v. Brown, 5 Vet. App. 375 (1993) and Blackburn v. Brown, 4 Vet. App. 395 (1993) (indicating VA must assess whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a TDIU). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director of the Compensation and Pension Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16(a) (2012). 38 C.F.R. § 4.16(b) (2013). Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability has been found to be synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, and educational and vocational attainments, are for consideration. As explained in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the schedular rating assigned for a disability is, itself, recognition that industrial capabilities are impaired as a consequence of the disability. The mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough. Id. Rather, the question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). The resolution of this appeal ultimately turns on whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the U.S. Court of Appeals for the Eighth Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975), which stated that it is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a) (2013). See also Moore at 358. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a) (2013). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16 (2012). While 38 C.F.R. § 3.321(b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994). Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996). For the reasons explained below, the Board finds that referral of the Veteran's case to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b) is not required, as the evidence of record fails to demonstrate that the Veteran's service-connected PTSD, lumbar spine DDD, tinnitus, headaches, and superficial scars rendered him unable to secure or follow gainful employment for the period prior to September 11, 2013, when his combined rating of 70 percent became effective as a result of the grant of 10 percent ratings for radiculopathy of the right and left lower extremities. Background The evidence reflects that the Veteran was previously employed as a truck driver. When he filed a claim for a TDIU in August 2008, he indicated that he had not worked since 1998. During his April 2012 personal hearing, the Veteran testified that he essentially stopped driving a truck full time in 1990, and employment as a driver after that date was part time. When he stopped working his complaints were essentially related to his PTSD. (Hg. Tr. at pgs. 23-25.) Pertinent treatment records include a December 2006 psychiatric examination report. At that time, the Veteran was slightly unkempt. He interacted in a cooperative manner and used a cane due to spine problems. His mood was dysphoric with constricted affect. His thought processes were coherent and goal directed. He was awake, alert, and fully oriented. His insight and concentration were intact and all memory functions were within normal limits. His judgment was good. VA records in 2007 show complaints of tinnitus. When examined by VA in November 2007 for his psychiatric disorder, he was alert and ambulatory. He was cooperative and interactive. His affect was stable but constricted. His mood was depressed. His thoughts were coherent and goal directed. In December 2007, he was seen for severe neck and shoulder pain. He also described radiating pain into the lower extremities. Magnetic resonance imaging (MRI) of the lumbar spine showed advanced disc degeneration. A tethered spinal cord was also noted. VA records indicate that in July 2008, the Veteran felt burned out and depressed. His judgment and insight were fair, and he was oriented time three. His attention and insight were described as fair, and his memory was grossly intact. On July 24, 2008, the Veteran underwent a L5-S1 interlaminar decompression with release of tethered spinal cord procedure. A post-surgery treatment record dated August 20, 2008, shows that post surgery, he had a spinal headache which required readmission on August 1. Now, he continued to have headaches, but not as bad. As for his back, there was a great deal of tightness. He was encouraged to continue with stretching exercises. On October 15, 2008, it was noted that he was "doing well" except for tightness in the low back and legs. There was no radiculopathy or weakness, and his spinal headaches had resolved. His incision was well-healed. The Veteran was to follow-up as needed. Upon VA mental status examination in December 2009, the Veteran's affect was pleasant and cooperative. His mood was cooperative and appropriate. His thought process was logical and goal directed. In September 2011, the Veteran's affect was noted to be constricted but stable. His mood was "not too good." His thought process was logical and goal directed. His judgment and insight appeared intact. He was oriented times three, and his attention and concentration were intact. When seen at a VA facility on December 13, 2011, the Veteran said that he had not been eating right and still had trouble sleeping due to nightmares, and depression. He denied being real despondent or suicidal. He looked forward to being with his grandchildren at Christmas. He took his medications regularly. Upon VA psychiatric examination on December 14, 2011, it was noted that the Veteran liked to watch a lot of television. He used to like to fish but had not done so in about 3 years. He did some chores and liked to cook. He managed his own finances. He mostly slept during the day as he slept very little at night. He had nightmares about Vietnam and said that he felt on guard. The examiner noted disturbances of motivation and mood and mild memory loss. The Veteran had some difficulty in establishing and maintaining effective work and social relationships. The examiner opined that his psychiatric symptoms did not make him unable to work. Upon VA spine examination in December 2011, Veteran said that since his back surgery in 2008, he was able to straighten his back, but that he continued to have radicular leg pain. He had used a cane for ambulation for the past 10 to 12 years. After walking for about a block, his legs would give out on him. He was essentially sedentary at this point, although he did not report the occurrence of flare-ups or incapacitating events. On exam, he was well-developed and well-nourished and did not appear to be in any distress. Sensation was intact throughout the bilateral lower extremities. Motor function was 5/5 in all muscle groups in the lower extremities. He had a 2 inch lumbar spine scar which was well-healed. He did have mild tenderness to palpation in the midline at approximately L4-5. There were no spasms. He had some flattening of the normal lumbar lordosis, and his pelvis was level. Straight leg raising was negative bilaterally. He had normal gait and heel-toe walked without difficulty. His range of motion was limited. For example, flexion was 0 to 40 degrees, both active and passive against resistance. There was stiffness but no pain at the endpoints. Extension was from 0 to 10 degrees. He had pain at the endpoint but no increased pain, fatigue, weakness, or incoordination with repetitive motion. Left and right lateral bending were from 0 to 20 degrees with repetitive motion. Left and right lateral bending were also from 0 to 20 degrees, and bilateral rotation was from 0 to 25 degrees bilaterally. At the video conference hearing in April 2012, the Veteran testified as to the severity of his back problems and PTSD. His back problems had progressively worsened over the years. (Hrg. tr. at pg. 14.) He said that he was on medication for his psychiatric symptoms. (Hrg. tr. at pg. 19.) He did not like to be in crowds and had sleep problems. When he quit driving a truck for good, his primary complaints were psychiatric in nature. (Hrg. tr. at pg. 22-23.) When examined by VA in September 2013, the Veteran said that since his back surgery in 2008, his radiculopathy pain had improved, but he continued to have lower extremity pain, worse on the left. He took medication for his pain. On exam, there was localized tenderness or pain to palpation for joints of the thoracolumbar spine. There was no guarding of the back, and the examiner noted that there was no functional impairment as a result of the thoracolumbar spine condition. Analysis After review of the evidence and with resolution of reasonable doubt in the Veteran's case, it is concluded that a TDIU is warranted. It is found that he meets the schedular criteria for a TDIU as of September 11, 2013. The Veteran reportedly stopped working in the late 1990s, primarily due to his psychiatric disorder, which, as reflected above, has remained relatively stable over the years. As noted in the pertinent documents of record, the competent lay and medical evidence demonstrates that a 50 percent rating has been in effect for PTSD since 2001. As per the assigned disability rating, his psychiatric symptomatology has resulted in occupational and social impairment, with reduced reliability and productivity due to disturbances in motivation and mood and difficulty establishing and maintaining effective relationships, and supported the assignment of a 50 percent rating. 38 C.F.R. § 4.130, DC 9411 (2013). It was noted by an examiner in 2011 that his psychiatric disorder alone did not make him unable to work. Moreover, although a VA examiner in September 2013 did not find functional impairment as a result of his back condition, it is the Board's conclusion that when his various service-connected disorders are combined (to include a low back disorder with radiculopathy, a significant though not severe psychiatric disorder, tinnitus, and headaches), he is found to be gainfully unemployable as of September 11, 2013, but not before. This finding is consistent with the Veteran's history of physically demanding employment as a truck driver and the date of the September 11, 2013, the date he was awarded additional disability ratings (radiculopathy of the lower extremities) which when added to his other service-connected disability ratings, results in his meeting the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2013). In reaching this favorable determination, all reasonable doubt was resolved in the Veteran's favor in making this favorable determination. In further explanation, it is noted that the record contains competent and credible medical evidence that the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected conditions from September 11, 2013. At that time, he had significant, though not severe, psychiatric symptoms, to include sleep problems and depression for which he took medication. The evidence reflects, however, that he managed to maintain relationships with others. However, he also had significant low back problems which are well-documented and included radiculopathy into the lower extremities. He used a cane and noted that he was essentially sedentary. As the Veteran meets the criteria for a TDIU from September 11, 2013, and as a combination of his service-connected problems at least indicates that the evidence is in equipoise as to his ability to gainfully employed, the Board finds that he is unemployable from that date. In effect, considering the claim prior to September 11, 2013, under extra-schedular regulations, the Board does not find that the Veteran was unemployable on an extra-schedular basis. Prior to September 11, 2013, the Veteran's lumbar spine or PTSD symptomatology, (or his tinnitus or headaches) did not preclude employability. While in no way diminishing the obvious impact that the Veteran's PTSD and lumbar spine symptomatology had on his industrial capacity, the symptoms are already taken into consideration in the assigned ratings prior to September 11, 2013. See Van Hoose, supra. In light of the above, the Board finds that the evidence supports the finding that the Veteran was unable to secure or maintain a substantially gainful occupation as a result of service-connected PTSD and lumbar spine and associated disabilities, for the period since September 11, 2013. Accordingly, entitlement to a TDIU for the period since September 11, 2013, is warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 (benefit of the doubt rule); 4.16(a) (criteria for schedular TDIU) (2013). The Board acknowledges the Veteran's lay assertions and hearing testimony that his service-connected conditions have caused him to be unemployable. The competent evidence supports his assertions, at least as of September 11, 2013. That is the date when he met the criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) (2012). Prior to that date, his combined disability ratings did not meet the criteria, and as discussed above, an extra-schedular rating for this period is not warranted. 38 C.F.R. § 4.16(b) (2013). With reasonable doubt resolved in the Veteran's favor, as of September 11, 2013, no competent evidence indicates that the Veteran would still be capable of finding and maintaining substantially gainful employment in light of all of his service-connected disabilities, education and work history. ORDER For the period from September 11, 2013, forward, a TDIU is granted, subject to the statutes and regulations governing the payment of monetary benefits. REMAND The Veteran seeks a TTR based on the need for convalescence following low back surgery on July 24, 2008. As noted earlier, the Board remanded the claim of entitlement to service connection for DDD of the lumbar spine with convalescence in August 2013. The Veteran was to be examined and opinion was to be provided regarding the etiology of the Veteran's lumbar spine condition. The examination was obtained (September 2013) and is part of the record. A total disability rating will be assigned following hospital discharge or outpatient release, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release if the treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence. (Effective as to outpatient surgery March 1, 1989.) (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited). (Effective as to outpatient surgery March 1, 1989.) (3) Immobilization by cast, without surgery, of one major joint or more. (Effective as to outpatient treatment March 10m 1976). Extension of periods of 1, 2, or 3 months beyond the initial 3 months may be made under subparagraph (1), (2), or (3). In addition, approval may be obtained for extensions of 1 or more months, up to 6 months beyond the initial 6-month period, under subparagraph (2) or (3) 38 C.F.R. § 4.30 (2013). In a September 2013 rating decision, the RO, in pertinent part, granted service connection for lumbar spine DDD "with convalescence." The RO did not, however, specifically discuss or assign a TTR in regards to the July 2008 back surgery. Thus, it is unclear as to whether the RO actually considered whether the records show that a period of convalescence is warranted following July 24, 2008, surgery with respect to the now service-connected low back disorder condition. The Board notes that there are follow-up records dated in August 2008 and October 2008, but while the August 2008 record only clouds the issue, the October 2008 report reflects that the Veteran was to return only as needed. At any rate, it is not clear as to whether convalescence of a period of one month or more was necessary following the back surgery. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain an additional statement from the operating surgeon at the VA facility in Houston, Texas, if possible, as to the period of convalescence necessary following the Veteran's July 24, 2008, low back surgery. Review of the record should be noted by the physician, to include the follow-up reports of records dated in August 2008 and October 2008. If that physician is unavailable, obtain a statement from an appropriate physician as to expected convalescence following such a procedure. He or she should also review the appropriate records and note as much on the report. 2. Thereafter, the RO/AMC should review the claims file to ensure that all the foregoing requested development is completed (if such development was thought necessary), and arrange for any additional development indicated. The RO/AMC should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO/AMC should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should ten be returned to the Board for further appellate review, if otherwise in order. 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 J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs