Citation Nr: 1343170 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 03-01 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating from September 26, 2000, for a left fifth finger disability. 2. Entitlement to an initial rating in excess of 10 percent from April 23, 1953, and 50 percent from June 22, 2009, for headaches. 3. Entitlement to an effective date earlier than August 11, 2004, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Barbara J. Cook, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from May 1951 to April 1953. This case has a lengthy and complex procedural history which was outlined in the Board's September 2011 Remand. The case has since been returned to the Board. In September 2010, the Veteran and his spouse testified at a Board hearing conducted via video-conference before the undersigned Veterans Law Judge. A transcript of the hearing, as well as corrections to that document which were submitted in October 2010, is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim for higher initial ratings for headaches and the claim for an earlier effective date for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT From September 26, 2000, the most probative evidence of record shows that the Veteran's left fifth finger disability is not manifested by adverse symptomatology that equates to extremely unfavorable ankylosis or an amputation nor does it cause lost motion in other fingers or interferes with the overall function of the hand. CONCLUSION OF LAW From September 26, 2000, the criteria for a compensable rating for a left fifth finger disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2002); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5227 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Here, however, the Veteran is challenging the initial evaluation assigned following the grant of service connection for the disability at issue. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering VCAA notice no longer required because the purpose that the notice is intended to serve has been fulfilled. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts 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 September 2010 Board hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claim for a higher evaluation. The Veteran was assisted at the hearing by his accredited representative and his representative and the VLJ asked questions to draw out the current severity of the appellant's disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claim, and the Veteran through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. Therefore, the Board finds the duties set forth in 38 C.F.R. § 3.103(c)(2) have not been breached in a manner prejudicial to the Veteran. The Board also finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service records from Dr. Michael A. Flicker and the Miami VA Medical Center in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand orders). In June 2008, the Social Security Administration (SSA) also notified VA that the Veteran's records were not available because they had been destroyed. The Veteran was provided with VA examinations in October 2000, March 2005, June 2009, May 2012, and an addendum to the May 2012 VA examination was obtained in August 2013. The Board finds the examinations and the addendum are adequate for rating purpose. As to the May 2012 VA examination and the August 2013 addendum, they also substantially complied with the Board's most recent remand orders. The Board has reached these conclusions because these reports reflect that after a review of the record on appeal or after taking a detailed history from the Veteran, a comprehensive examination was conducted and opinions were provided as to the severity of the disability that allow the Board to rate it under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; D'Aries, supra; Dyment, supra. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in VA's electronic files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran and his representative assert that his left fifth finger disability is worse than rated and warrants a compensable evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). The August 2001 rating decision granted service connection for a left fifth finger disability and assigned it a non compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5227, effective from September 26, 2000. The criteria for evaluating the finger disability changed effective August 26, 2002. See 67 Fed. Reg. 49590 (Jul. 31, 2002). The statement of the case issued in December 2002 notified the Veteran of the old and new rating criteria. However, given the change in law, while VA may consider the old criteria for rating finger disabilities for the entire period during which the appeal has been pending, it may only consider the new criteria for rating finger disabilities from August 26, 2002. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Initially, the Board notes that dominant hand for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69 (2013). In this case, evidence reflects that the Veteran is right-handed. See, for example, the May 2012 VA examination report. Old Diagnostic Code 5227 provided a noncompensable disability rating for ankylosis of any finger other than the thumb, index finger, or middle finger. 38 C.F.R. § 4.71a (2002). It also provided that extremely unfavorable ankylosis may be rated as amputation under Diagnostic Codes 5152 through 5156. 38 C.F.R. § 4.71a (2002) also provided that in classifying the severity of ankylosis and limitation of motion of single digits and combinations of digits the following rules will be observed: (1) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, with either joint in extension or in extreme flexion, will be rated as amputation. (2) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, even though each is individually in favorable position, will be rated as unfavorable ankylosis. (3) With only one joint of a digit ankylosed or limited in its motion, the determination will be made on the basis of whether motion is possible to within 2 inches (5.1 cms.) of the median transverse fold of the palm; when so possible, the rating will be for favorable ankylosis, otherwise unfavorable. (4) With the thumb, the carpometacarpal joint is to be regarded as comparable to the metacarpophalangeal joint of other digits. Similarly, new Diagnostic Code 5227 provides for a noncompensable evaluation for ankylosis of the little finger, whether it is favorable or unfavorable. The rating schedule indicates that VA can also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 38 C.F.R. § 4.71a (2013). 38 C.F.R. § 4.71a (2013) also provides as follows when evaluating ankylosis or limitation of motion of single or multiple digits of the hand: (1) For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand. The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads. Only joints in these positions are considered to be in favorable position. For digits II through V, the metacarpophalangeal joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal joint has a range of zero to 70 or 80 degrees of flexion (2) When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the rating schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level (3) Evaluation of ankylosis of the index, long, ring, and little fingers: (i) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation without metacarpal resection, at proximal interphalangeal joint or proximal thereto (ii) If both the metacarpophalangeal and proximal interphalangeal joints of a digit are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position (iii) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as unfavorable ankylosis (iv) If only the metacarpophalangeal or proximal interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the fingertip(s) and the proximal transverse crease of the palm, with the finger(s) flexed to the extent possible, evaluate as favorable ankylosis (4) Evaluation of ankylosis of the thumb: (i) If both the carpometacarpal and interphalangeal joints are ankylosed, and either is in extension or full flexion, or there is rotation or angulation of a bone, evaluate as amputation at metacarpophalangeal joint or through proximal phalanx (ii) If both the carpometacarpal and interphalangeal joints are ankylosed, evaluate as unfavorable ankylosis, even if each joint is individually fixed in a favorable position (iii) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of more than two inches (5.1 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as unfavorable ankylosis (iv) If only the carpometacarpal or interphalangeal joint is ankylosed, and there is a gap of two inches (5.1 cm.) or less between the thumb pad and the fingers, with the thumb attempting to oppose the fingers, evaluate as favorable ankylosis (5) If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations As to a compensable rating under Diagnostic Code 5227, the Board finds that regardless of whether the old or new criteria is used to evaluate the Veteran's service-connected left fifth finger disability a compensable rating is not warranted because the rating schedule does not provide for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2013); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is not warranted. Fenderson, supra. As to rating the Veteran's service connected left fifth finger disability as extremely unfavorable ankylosis or an amputation, the Board notes that VA examinations in October 2000, March 2005, and June 2009 noted that he was unable to actively flex the left little finger. The March 2005 VA examiner also reported that he had no thumb-to-pinky pinch and increased pain and incoordination with use but no decrease in range of motion or an endurance problems. Similarly, the May 2009 VA examiner noted that there was a gap between the fingertip and the palm of less than 1 inch and, after repetition, he had additional pain, fatigue, and incoordination. It was also noted that there was muscle atrophy, pain with palpation, and grip strength was 3/5. Likewise, the May 2012 VA examiner noted that the left fifth finger had problems with lost motion with pain and there was a gap between the fingertip and the palm of less than 1 inch. Moreover, after repetition, he had additional fatigue and incoordination but no additional lost motion. Muscle strength was 4/5 and grip strength was 3/5. However, the October 2000 VA examiner reported that he nonetheless had 50 percent range of motion passively and full extension. Likewise, the June 2009 VA examiner opined that there was no ankylosis or deformity of one or more digit and the left fifth finger X-ray was within normal limits. Similarly, the May 2012 VA examiner opined that there was no ankylosis of any finger and his symptomatology was not such that it was equivalent to an amputation. While treatment records periodically document the Veteran's complaints and/or treatment for his left fifth finger disability nothing in these records show his adverse symptomatology to be worse than was reported at the above VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Similarly, the Board finds that reports by the above VA examiners as to the severity of the Veteran's left fifth finger disability more probative than the lay claims from the Veteran and others found in the claims file. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board finds that given the degree of adverse symptomatology seen at his VA examinations which is limited to lost flexion, pain, and incoordination, but which did not show ankylosis (ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure), and which included an opinion that his symptomatology did not equate to an amputation, there is no basis for finding the severity of the Veteran's left fifth finger disability is equivalent to extremely unfavorable ankylosis or an amputation. See Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that in the absence of ankylosis, the Board may not rate a disability as ankylosis). Accordingly, the Board finds the criteria for rating the left fifth finger disability as extremely unfavorable ankylosis and/or an amputation under either the old or new Diagnostic Codes have not been met. 38 C.F.R. § 4.71a (2002); 38 C.F.R. § 4.71a (2013). This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is not warranted. Fenderson, supra. The Board will next consider whether a compensable evaluation is warranted because of resulting limitation of motion of other digits or interference with the overall function of the hand. See 38 C.F.R. § 4.71a, Diagnostic Code 5227 (2013). In this regard, the Veteran's representative also argues that he is entitled to a 40 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5218 (2013) (also see old 38 C.F.R. § 4.71a, Diagnostic Code 5222 (2002)) because the scope of his service connected left fifth finger disability includes the lost motion the claimant also has in his first and second fingers because they were all caused by the deep laceration to the left thumb and wrist he sustained while on active duty. The Board acknowledges the fact that the August 2001 rating decision when discussing the reason for granting the Veteran service connection for the left fifth finger disability discussed the fact that the disability was a residual of the deep laceration to the left thumb and wrist he sustained while on active duty. The Board also acknowledges the fact that the October 2003 VA examiner noted that the Veteran also had loss of flexion of the index finger, the June 2009 VA examiner noted that the Veteran had loss of flexion in the thumb and index finger, and the May 2012 VA examiner found that he had loss of mobility in his first and second digits. However, the August 2001 rating decision, in addition to granting the Veteran service connection for the left fifth finger disability, granted service connection for a left wrist and left thumb disability and symptomatology due to his service connected left wrist and left thumb disability cannot form a basis for granting the Veteran a higher evaluation for his left fifth finger disability because it would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2013). Furthermore, the Board finds that the record is devoid of any medical evidence that the Veteran's service connected left fifth finger disability was the reason for the lost motion in his other fingers. Similarly, the record is devoid of any medical evidence that the Veteran's service connected left fifth finger disability interfered with the overall function of the hand. In fact, the May 2012 VA examiner opined, in connection with his opinion that there was no ankylosis of any finger, that the disability did not result in limitation of motion of other digits or interfere with the overall function of the hand. Likewise, in the August 2012 addendum the examiner opined that the left fifth finger disability did not result in the limitation of any other fingers of the left hand because the service connected disability is totally independent from all other lesions of the left hand. Similarly, in the addendum the examiner opined that the examination revealed that the disability of the left fifth finger does not interfere with the overall function of the left hand. These medical opinions are not contradicted by any other medical evidence of record. Additionally, the Board finds these opinions more probative than any lay claims to the contrary found in the record. Accordingly, the Board finds that a compensable evaluation is not warranted for resulting limitation of motion of other digits or interference with overall function of the hand under any of the other Diagnostic Codes for rating finger disabilities, including under old and new criteria, because the most probative evidence of record shows that the Veteran's service connected left fifth finger disability does not cause such impairment. This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is not warranted. Fenderson, supra. With respect to any other considerations, the new rating criteria provide evaluations for limitation of motion of fingers. However, for the little finger, the only schedular rating provided is a noncompensable rating for any degree of limitation of motion, whether it affects the minor or the major hand. 38 C.F.R. § 4.71a, Diagnostic Code 5230 (2013). Accordingly, the Board finds that a compensable evaluation is not warranted under new Diagnostic Code 5230 regardless of any additional functional loss due to pain, weakness, and flare-ups taking into account 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013) and the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). This is true at all times from August 26, 2002, and therefore consideration of a staged rating is not warranted. Fenderson, supra. As to rating the Veteran's left fifth finger disability under any other Diagnostic Code used to rate finger disabilities, the Board finds that given the nature and location of his service connected disorder that it is not ratable under any of the other old or new criteria because these other criteria do not deal with his left fifth finger. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5255 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5230 (2013); Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). This is true throughout the period of time during which his claim has been pending and therefore consideration of a staged rating is not warranted. Fenderson, supra. As to an extra-schedular rating, the threshold factor for this consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. When the an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. With respect to a comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria, the evidence shows that the rating criteria adequately describe the Veteran's adverse symptomatology and degree of disability. Therefore, referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A compensable evaluation for a left fifth finger disability from September 26, 2000, is denied. REMAND Regarding the evaluation of the Veteran's headache disability, the February 2013 Remand specifically directed the RO to re-adjudicate the claim applying the criteria in effect prior to, and since, June 1953. However, the subsequent October 2013 supplemental statement of the case nether contained a citation to the pre-June 1953 criteria for rating migraine headaches under Diagnostic Code 8100 or a discussion of this criterion. Therefore, the Board finds that another remand for the RO to take this action is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). In this regard, the pre-June 9, 1953, criteria for rating migraine headaches under Diagnostic Code 8100 provided as follows: a 0 percent rating for mild; a 10 percent rating for well marked cases, a 30 percent rating with attacks every few months, completely prostrating; and a 50 percent rating with the most prostrating attacks, characteristic digestive upsets, incapacitation for several days, and as frequent as once a month. When re-adjudicating the claim, the RO must consider the old and new criteria. Also, the record reveals that the Veteran receives ongoing treatment from the Miami VA Medical Center, with the most recent records dated in September 2013. Any subsequently dated relevant treatment records should be obtained. As to the claim for an earlier effective date for a TDIU, the Board finds that adjudication of this issue must be deferred pending completion of the above development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, these issues are REMANDED to the RO for the following actions: 1. The RO should obtain and associate with the claims file copies of the records of the Veteran's treatment from the Miami VA Medical Center, dated since September 2013. 2. The RO should provide the Veteran and his representative with notice of the pre-June 9, 1953, criteria for rating migraine headaches under Diagnostic Code 8100. 3. The RO should thereafter re-adjudicate the claims. As to the headache rating, the adjudication must consider the old criteria for rating the Veteran's headaches for the entire period since April 23, 1953, and only consider the new criteria since June 9, 1953. If any benefit sought on appeal remains denied, the RO should provide the Veteran and his representative with a supplemental statement of the case (SSOC). The SSOC should contain notice of all relevant actions taken on the claims for benefits since the October 2013 SSOC, as well as notice of the pre and post June 1953 rating criteria for headaches. After allowing for time to respond, the case should be returned to the Board for its review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs