Citation Nr: 1339602 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 09-05 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran had active service from May 1978 to July 1981. He also had active duty for training (ACDUTRA) in the National Guard from May 1977 to September 1977. These matters come before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2012, and again in March 2013, the Board remanded the service connection claims on appeal for further development. In March 2013, the Board denied claims for a rating in excess of 10 percent for residuals of a right wrist fracture of the navicular bone with degenerative changes and a rating in excess of 10 percent for chronic right ankle sprain, and determined that the matter of entitlement to a TDIU was not currently before the Board. The Veteran appealed only the portion of the Board's March 2013 decision determining that entitlement to a TDIU was not currently before the Board to the United States Court of Appeals for Veterans Claims (Court). In an order dated October 2013, the Court remanded the issue of entitlement to a TDIU to the Board pursuant to the terms of a September 2013 Joint Motion for Remand (JMR). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. As noted in the Board's March 2013 remand, the issue of entitlement to service connection for neurologic disability of the right hand, to include as secondary to service-connected residuals of a right wrist fracture of the navicular bone with degenerative changes, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and the matter is again referred to the AOJ 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. FINDING OF FACT Neither a back disability nor a right knee disability began in service or until many years after service, or is otherwise related to service in any way. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 101(22), (24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309(a) (2013). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 101(22), (24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated in October 2007. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, identified private treatment records, Social Security Administration (SSA) records, and lay statements from friends of the Veteran have been obtained. Also, the Veteran was provided a VA examination of his claimed back disability in July 2012. This examination and its associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examination was not obtained for the service connection claim for a right knee disability. As discussed below, the evidence does not establish that any event, injury, or disease occurred in service that may be associated with any current right knee symptoms or disability, and there is no medical or other competent evidence suggesting a nexus between the Veteran's right knee and service or any other such evidence that would warrant obtaining a medical nexus opinion. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, the AOJ has substantially complied with the Board's July 2012 and March 2013 remand instructions. The Veteran's SSA records and vocational rehabilitation file have been obtained and associated with the claims file, and the Veteran was provided an adequate VA orthopedic examination of his back. Also, in an April 2013 letter, the AOJ contacted the Veteran and requested that he provide sufficient information to obtain any additional VA treatment records pertinent to the claims on appeal that were not currently of record, and specifically any records of visiting a VA facility from February 1982 to December 1983. Furthermore, as reflected in an April 2013 report of contact, the AOJ contacted the Veteran by telephone and asked him if he had ever been treated at a VA facility in 1982 or 1983, and he replied that he had not. Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with its directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the record does not reflect, and the Veteran does not contend, that he incurred any back or knee injury during his period of ACDUTRA from May 1977 to September 1977. As reflected in August 2007 and January 2013 statements, the Veteran contends that he has current back and right knee disabilities as the result of in-service injuries during his active service from May 1978 to July 1981. Specifically, in August 2007, he reported that he twisted his right knee playing basketball in service while stationed in Germany and has been having problems with it ever since. In January 2013, the Veteran reported that his current back disability began after an in-service back injury that was noted at the time to be a muscle strain. The Veteran's service treatment records from May 1978 to July 1981, while reflecting treatment for right ankle injuries and a right calf muscle injury in October 1978, assessed as hyperextension of the calf muscle, reflect no findings or treatment relating to the right knee. They reflect one instance of treatment for the back in May 1981. At that time, the Veteran complained of low back pain for the past two months, stated that he did not know how he hurt his back, and stated that he had pain when bending. There was noted to be muscle tightness in the lumbar region, and the assessment was lumbar strain. Following testing, a urinary tract infection (UTI) was diagnosed. Service treatment records reflect no further treatment relating to the back. At the time of his June 1981 examination for separation from service, the Veteran was noted to have had a normal clinical evaluation of the lower extremities, spine, and musculoskeletal system. At that time, the Veteran reported not having and having never had arthritis, recurrent back pain, or a trick or locked knee. He reported a history of swollen or painful joints, but in explaining his answer stated that he had recurrent right ankle problems, cramps in the hamstrings after strenuous activity, and pes planus; no back or knee problems were noted. In December 2001, the Veteran filed a claim for service connection for right wrist pain. Beginning in December 2001, the record reflects regular VA treatment, including orthopedic treatment. During the initial years of treatment, the record reflects complaints of wrist pain and other orthopedic problems, but no findings or reports of back or knee pain. In December 2001, the Veteran complained of right wrist pain, which he reported having for 20 years since injuring it in the military, and also current headaches. It was noted that his past medical history was significant for his right wrist injury, but that he denied any other complaints. It was also noted that he was active in sports and that his regular profession was as a cook. In February 2003, the Veteran was again treated for right wrist pain, and on musculoskeletal examination it was noted that there was no low back pain or muscle pain, normal gait, and normal range of motion noted at all joints except for the right wrist. In September 2003, the Veteran filed a claim for service connection for a bilateral foot condition. A November 2003 VA treatment note reflects that the Veteran complained of bilateral foot pain, and that he had no complaints on examination of the extremities and range of motion was unremarkable. The earliest indication of back pain is a February 2004 VA treatment note reflecting that the Veteran complained of pain in the low back, right wrist, and right ankle. The Veteran reported at the time that he had chronic pain in the back, and rated the pain 8/10 on the pain scale. He reported a history of chronic low back pain since 1981, that he could not remember a specific accident or event precipitating the pain, but that he had used muscle relaxers and pain medications in the past, had had intermittent problems over the years, and had recently been working as a cook and believed the work had set off the pain. Approximately one week after this initial treatment, the Veteran filed a claim of service connection for a back condition. An April 2004 VA treatment record reflects that spine X-rays revealed degenerative joint disease. An April 2004 statement from the Veteran's treating VA physician states that the physician reviewed the Veteran's medical records, and that it was her opinion that his present back problems were at least as likely as not related to the muscle strain in his back while on active duty in 1981. In May 2004, the Veteran again received VA treatment for chronic back pain, and at that time reported twenty years of chronic low back pain. A December 2004 VA treatment record reflects that the Veteran was diagnosed as having chronic low back pain related to degenerative disc disease, and that he complained of radiculopathy symptoms with no objective evidence. A January 2005 VA lumbar spine magnetic resonance imaging (MRI) report reflects an impression of a diffuse disk bulging and a central disc herniation at the L5-S1 level with a possible impingement of the S1 nerve root sheaths bilaterally; degenerative disc change was also seen at other levels with obvious spinal stenosis except for the L1-L2 level where minimal stenosis of the neural foramina was seen. In November 2005, it was noted that the Veteran had had back pain going to the right leg for two years, but that he reported 25 years of back pain progressing to the right leg and getting worse in the past three years, with no trauma that he knew of. It was noted that a January MRI showed disc herniation, and the assessment was back pain and leg numbness with herniated disc in the lumbar spine. In February 2006 the Veteran complained of worsening back pain in the same location radiating to the left hip and back of his leg, and the assessment was herniated disc, 2004, as well as chronic back pain. A July 2006 VA treatment note reflects that, in addition to his chronic complaints, the Veteran was complaining of right knee pain. An August 2007 private orthopedic evaluation report reflects that the Veteran complained of low back and right knee pain, and reported that he had had low back pain since 1980, and that he rated his back pain 10/10 all day every day. An August 2007 VA treatment record reflects that the Veteran reported that he had back pain in service and was diagnosed with UTI without any labs, that he was put on bed rest for several days and then returned to active duty, but that he was not pain free and his back had never been normal since. On August 2008 VA examination, the Veteran was noted to have had right knee pain, but a right knee X-ray report revealed a normal right knee. A statement received in May 2008 from the Veteran's friend, L.M., reflects that L.M. witnessed the Veteran's pain and aches. She stated that such pain was severe and that it was hard for him to get out of bed due to his back pain and right knee pain. The Veteran was afforded a VA examination of the spine in July 2012. At the time of the examination, he reported that the onset of his lower back condition was 1981, and that he had had a muscle strain of the lower back while participating as an athlete. He reported receiving treatment while on active duty, including bed rest and muscle relaxers, and that his condition had been revised to a UTI and treated. He reported that his first lower back treatment after service was in 1981 or 1982, that his doctor told him that it was just arthritis and to wait until he got older to file a formal claim, and that, as a result, his back went unmedicated for 10 or 11 years. He stated that he returned in 1999 in very bad shape, which was when his physician prescribed muscle relaxers. He denied any further injury to the lower back since 1981 discharge, and reported that his back problems now had him bedridden and were constant. After reviewing the record and examining the Veteran, the VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by in-service injury, event, or illness. The examiner explained that no chronic lower back condition was established while on active duty, as he was seen only once for "muscle strain" that was changed to "UTI," and that there was a negative response to "recurrent back pain" by the Veteran at the time of discharge and no abnormal findings related to the claimed condition with the 1981 discharge physical. The examiner further stated that there was no treatment documentation for a chronic back condition within a reasonable period of time after the 1981 discharge, as the first treatment documented for a lower back condition was in 2004, which was more than 20 years after his active duty period. In addition to the service treatment records and post-service treatment records, the examiner noted the Veteran's occupational history obtained during the examination of working in the food industry for over 25 years and having extensive experience cooking and managing kitchens. The Veteran also submitted a statement in January 2013 from neighbors, C.W. and R.W., who stated that they met the Veteran in January 2007 and were his neighbors in the year 2009, and that they had been witness to the Veteran's physical pain that would leave him unable to do anything for days a time. They stated that the Veteran has always had his cane due to severe back pain, and that they would help the Veteran buy groceries and cook dinner. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claims must be denied. Regarding the Veteran's claimed right knee disability, while the record reflects complaints of right knee pain, it does not reflect that the Veteran had a diagnosed right knee disorder at the time of his August 2007 claim for benefits or that he has had one at any time since; on August 2008 VA examination, the Veteran was noted to have had right knee pain, but a right knee X-ray report revealed a normal right knee. Pain alone does not constitute a disability for service connection purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), aff'd sub nom. Sanchez- Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Therefore, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Furthermore, even assuming that the Veteran does have a current right knee disability, the record does not reflect that any right knee disability began during, or is otherwise related to, service, or that any right knee pain or problems began until July 2006, when the Veteran first complained of such. While the Veteran asserts that he injured his knee while playing basketball in service, service treatment records do not indicate any findings or treatment related to any right knee problem. Given the fact that other injuries, including some noted to have occurred while playing basketball, are extensively documented in the service treatment records, including injuries to his right ankle and right calf muscle, the absence of any documentation in service treatment records of a right knee injury weighs heavily against the Veteran's assertion. Moreover, there is no competent evidence, such as a medical opinion, suggesting any link between a current right knee disability and service, and neither the Veteran nor his representative has identified any. Regarding the Veteran's asserted back disability, while service treatment records reflect one instance of treatment for the back in May 1981, at which time lumbar strain was diagnosed, the weight of the competent and probative evidence suggests that the Veteran's current back disability, including degenerative disc disease, disc herniation, and spinal stenosis, is not related to such in-service treatment, or to service generally. The most probative competent opinion on whether a back disability is related to service is that of the July 2012 VA examiner, which was that the Veteran's back disability was less likely than not incurred in or caused by in-service injury, event, or illness. The opinion was provided by an examiner with appropriate expertise who thoroughly examined the Veteran and reviewed and considered the evidence contained in the claims file, as well as the Veteran's own reported history of his disability. Also, the VA physician provided a thorough, clear, and persuasive rationale, noting the Veteran's in-service treatment, but that no chronic back condition had been established in service, that there was no treatment documentation for a chronic back condition until more than 20 years after service, and the Veteran's occupational history of cooking and managing kitchens for over 25 years. The examiner's rationale is consistent with the evidence of record. The Board notes the Veteran's assertions that both right knee and back problems began in service and have continued to the present. However, the Board finds that such assertions are not credible. In addition to the fact that the Veteran had normal evaluations of the knees and back on his June 1981 separation examination, denied any history of arthritis, recurrent back pain, or a trick or locked knee, and reported no back or knee problems despite reporting histories of other orthopedic problems, the record reflects no report of any back or right knee problems until February 2004 and June 2006, respectively, which is more than 20 years following separation from service. This is despite continuous VA orthopedic treatment for other complaints and disorders beginning in December 2001. Furthermore, in December 2001 it was noted that his past medical history was significant for his right wrist injury, but that he denied any other complaints, and that he was active in sports and his regular profession was as a cook; in February 2003, musculoskeletal examination revealed that there was no low back pain or muscle pain, normal gait, and normal range of motion noted at all joints except for the right wrist; and in November 2003 the Veteran had no complaints on examination of the extremities and range of motion was unremarkable. Moreover, despite the Veteran's assertions of continuing right knee and back problems from the time of service, he filed service connection claims for the right wrist in December 2001 and for the feet in September 2003; he did not file a service connection claim for the back until February 2004, or for the right knee until August 2007. The fact that he filed service connection claims for disabilities long before he did so for the disabilities on appeal further weighs against his assertions of continuous right knee or back problems since service. The Board also notes the Veteran's various assertions that he sought treatment with VA for his back shortly after service and was told that he had arthritis. In a May 2008 statement, the Veteran asserted that he did not begin receiving medical attention for his claimed disabilities until approximately 2000, after being denied medical attention in 1983 because a physician stated that he only had arthritis, so that he should come back when he was older. In a January 2013 statement, the Veteran again asserted that he had been previously denied medical treatment. He reported that before being discharged from service in July 1981 he was advised during his "outprocessing briefing" to immediately apply to register for medical care and benefits, no longer than six months after being discharged. He further reported that on February 1, 1982, he rode with a World War II veteran, F.C, and was advised by medical personnel that he was too young, that his pain was arthritis, and that he should return when he was older. He did not, however, indicate what VA facility he visited in 1982 or 1983. Pursuant to the Board's March 2013 remand instructions, the AOJ contacted the Veteran and requested that he provide sufficient information to obtain any additional VA treatment records pertinent to the claims on appeal that were not currently of record, and specifically any records of visiting a VA facility from February 1982 to December 1983. Furthermore, as reflected in an April 2013 report of contact, the AOJ contacted the Veteran by telephone and asked him if he had ever been treated at a VA facility in 1982 or 1983, and he replied that he had not. The Veteran has offered no further supporting details regarding any facility he might have visited shortly after service regarding either disability on appeal. In light of this, as well as the lack of any reported problems until more than 20 years after service, the affirmative denial of back or extremity problems during that period, and the claims for other disabilities years prior to the ones on appeal, the Board finds the Veteran's assertions of such treatment not to be credible. The Board acknowledges the April 2004 opinion of the Veteran's treating VA physician that his present back problems were at least as likely as not related to the muscle strain in his back while on active duty in 1981. However, the physician provided no rationale whatsoever for her opinion. This significantly diminishes the probative value of the opinion, particularly given the thorough rationale of the July 2012 VA examiner, the evidence as a whole, and the lack of credibility of the Veteran in reporting the history of his claimed disabilities, as discussed above. As a result, the Board finds the April 2004 VA physician's opinion to be of little probative value, and to be far outweighed by that of the July 2012 VA examiner. Finally, the Board acknowledges the May 2008 statement from L.M. and January 2013 statement from C.W. and R.W. However, such statements pertain to the current severity of the Veteran's asserted disabilities, and do not assert any personal knowledge regarding in-service onset of such disabilities or any other nexus of such disabilities to service. Thus, they are not of probative value in resolving the issues here. Therefore, in light of the above, the Board finds that the weight of the evidence is against a finding that a back disability or a right knee disability began in service, or until many years after service, or that either is otherwise related to service in any way. In this regard, the presumptive service connection provisions for chronic diseases of 38 C.F.R. §§ 3.307 and 3.309(a) are not applicable. Accordingly, the claims for service connection for a back disability and a right knee disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against both claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a back disability is denied. Service connection for a right knee disability is denied. REMAND In the September 2013 JMR, while the parties acknowledged that the RO denied entitlement to a TDIU in July 2008, and the matter was not appealed by the Veteran, they noted that during a January 2011 VA examination the Veteran reported that he last worked in 2004 because he could not stand for a four-hour period of time, could not trust his grip and dropped things and stumbled over his own feet because his ankle would give out. The parties also noted that the Veteran applied for SSA disability benefits. They further noted that, pending before the Board in March 2013, were the Veteran's claims for increased ratings for his right wrist and right ankle disabilities, and that the Veteran was presumed to be seeking the highest possible rating for the disabilities considered by the Board. The parties concluded, therefore, that the evidence appeared to raise the issue of entitlement to a TDIU after the denial of a TDIU by the RO in July 2008. As the issue of a TDIU, raised following the July 2008 denial, has not yet been developed or adjudicated by the AOJ, it must be remanded. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VCAA notice as to his TDIU claim. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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. 2013). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs