Citation Nr: 1451597 Decision Date: 11/20/14 Archive Date: 11/26/14 DOCKET NO. 09-11 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for difficulty speaking as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy. 2. Entitlement to an increased rating for stenosis of the larynx resulting in respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, initially evaluated as 30 percent disabling and as 60 percent disabling on and after May 23, 2014. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and P.B. ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from May 1952 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the April 2007 rating decision, the RO granted service connection for residuals of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, and assigned a 10 percent rating for hoarseness effective June 13, 2006. VA received the Veteran's notice of disagreement with the assigned rating in July 2007 and issued a statement of the case in February 2009. In May 2009, VA received a written statement from the Veteran that was accepted for purposes of perfecting his appeal in lieu of a VA Form 9. In the course of this appeal, in a February 2009 rating decision, the RO in Atlanta, Georgia, granted service connection for dysphagia as secondary to the service-connected disability of cancer of the larynx and assigned a 30 percent rating effective June 13, 2006. The RO also granted service connection for a scar as a residual of the tracheostomy as secondary to the service connected disability of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy. A 0 percent (noncompensable) rating was assigned effective June 13, 2006. The Veteran did not express disagreement with either of these ratings; therefore, neither rating is on appeal before the Board. While the Veteran technically registered disagreement with the "evaluation for scarring" in a May 2009 statement, that statement makes clear that he is referring to scarring inside of his throat that interferes with his breathing, which is addressed below. In October 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In January 2013, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for residuals of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, for additional development. As a result of this development, the Veteran was granted service connection for stenosis of the larynx resulting in respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy. He was assigned an initial 30 percent rating, and this rating was increased to 60 percent disabling on and after May 23, 2014. Since the RO did not assign the maximum possible disability rating, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In October 2014, the Veteran, via his representative, requested a hearing before the Board. VA regulation provides, in pertinent part, that "a hearing on appeal will be granted if an appellant . . . expresses a desire to appear in person." 38 C.F.R. § 20.700(a) (2014). By the express language of the regulation, an appellant is entitled to only one hearing on appeal. The Veteran testified at such a hearing in October 2012. As the Veteran has not provided a reason for wishing to testify at another hearing, and there is no indication that the hearing provided in October 2012 was inadequate, the Board must decline the request for an additional Board hearing. In October 2014, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of Ralph J. Bratch, Attorney at Law. This appointment revokes any prior appointments that were duly executed by the Veteran. As will be discussed in more detail below, the Board finds that a claim of entitlement to a TDIU has been raised by the Veteran and is part and parcel of his increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 19, 2012, the Veteran's cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, was manifested by hoarseness without thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy, and was not manifested by complete organic aphonia. 2. Resolving reasonable doubt in favor of the Veteran, from June 19, 2012, the Veteran's cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, is manifested by an inability to speak above a whisper. 3. Prior to May 23, 2014, the Veteran's respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, was manifested by an FEV-1 value of 62 percent predicted. 4. On and after May 23, 2014, the Veteran's respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, is manifested by FEV-1 value of 45 percent predicted. CONCLUSIONS OF LAW 1. Prior to June 19, 2012, the criteria for an evaluation in excess of 10 percent for difficulty speaking as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Codes 6516, 6519 (2014). 2. On and after June 19, 2012, the criteria for an evaluation of 60 percent, but no higher, for difficulty speaking as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.159, 4.97, Diagnostic Codes 6516, 6519 (2014). 3. Prior to May 23, 2014, the criteria for entitlement to an initial disability rating in excess of 30 percent for stenosis of the larynx resulting in respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Code 6520 (2014). 4. On and after May 23, 2014, the criteria for entitlement to a disability rating in excess of 60 percent for stenosis of the larynx resulting in respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.7, 4.96, 4.97, Diagnostic Code 6520 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014)). In addition, VA published regulations, which were created for the purpose of implementing many of the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now codified, in pertinent part, at 38 C.F.R. § 3.159 (2014)). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate a claim, as well as the evidence VA will attempt to obtain and which evidence the veteran is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements, however, may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Dingess, supra; Pelegrini, supra. The Board finds that the notification requirements of VCAA have been satisfied in this case. In this regard, the Board notes August 2006 and September 2006 evidentiary development letters in which the RO advised the appellant of the evidence needed to substantiate his claim of entitlement to service connection for residuals of cancer of the larynx. The appellant was advised in these letters of his and VA's responsibilities under VCAA, to include what evidence should be provided by him and what evidence should be provided by VA. These letters also advised the Veteran as to the type of evidence needed to substantiate both the disability rating and effective date elements of his claim, pursuant to the Court's holding in Dingess, supra. The Board further finds that the duty to assist requirements of VCAA have also been satisfied in this case. 38 U.S.C.A. §§ 5103 and 5103A. Specifically, the Board finds that all obtainable evidence identified by the Veteran relative to the issues on appeal has been obtained and associated with the claims folder. In particular, the Board notes that the RO obtained the Veteran's VA medical records and available private medical records. The RO arranged for the Veteran to undergo VA examinations in February 2007, August 2007, and June 2004. The Board finds that the resulting examination reports are adequate for the purpose of determining entitlement to increased ratings. The examiners reviewed the claims file and elicited from the Veteran his history of complaints and symptoms, and the examination reports provide pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of the Veteran's disabilities. For these reasons, the Board concludes that the examination reports in this case provide an adequate basis for a decision. During the October 2012 Board hearing, the undersigned explained the issues for which the hearing was being conducted and asked questions designed to elicit information relevant to these claims. These actions provided an opportunity for the appellant to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The evidence of record provides sufficient information to adequately evaluate the claims. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Higher Initial Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2014). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. A. Difficulty Speaking The Veteran is currently in receipt of a 10 percent rating for hoarseness as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy. This rating has been assigned under 38 C.F.R. § 4.97, Diagnostic Code 6516 (2014). Diagnostic Code 6516 assigns a 10 percent rating for chronic laryngitis for hoarseness with inflammation of cords or mucous membrane. It assigns a 30 percent rating for hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Complete organic aphonia is rated under 38 C.F.R. § 4.97, Diagnostic Code 6519 (2014). Diagnostic Code 6519 assigns a 60 percent rating when there is a constant inability to speak above a whisper, while it assigns a 100 percent rating for constant inability to communicate by speech. A February 2007 VA examination report notes that the Veteran "speaks with a slightly raspy voice intermittently, sometimes normal, sometimes raspy and always quite intelligible." An April 2007 letter from the Veteran's treating otolaryngologist reports that the Veteran has hoarseness. A December 2009 private gastroenterology record notes the Veteran had a loss of voice. Hoarseness was noted throughout the records from the Veteran's private gastroenterologist dated in 2010. A February 2012 private gastroenterology record also notes that the Veteran has hoarseness. A June 2012 record from a private ear, nose, and throat doctor notes that the Veteran's "[v]oice has been much more breathy since his last surgery." It notes that he had a right vertical hemilaryngectomy in 2003 and had five more procedures in 2009 and 2010. It was noted that the Veteran has limited motion of the left vocal cord and a resected right glottis, bowing laterally with good airway and no signs of tumor. The Veteran asked about procedures to improve his voice but was told that such procedures would require him to live with a permanent tracheotomy. A June 2013 record notes that the Veteran has a "[v]ery coarse and breathy voice, with poor volume, and mild inspiratory stridor." At his October 2012 Board hearing, the Veteran testified that he "could no[] longer hold office in the Elk's Lodge because of my inability to speak with any volume or projection." His fiancée testified that, since the Veteran's laryngectomy, she has never heard him speak louder than a whisper. A March 2014 letter from his private ear, nose, and throat doctor notes that the Veteran's "main complaint is that his voice continues to get weaker and weaker and he would like relief. He has a whisper aphonia at present. It has gotten weaker since I saw him." On examination, the Veteran was "[u]nable to voice. Whisper dysphonia. He has trace mild stridor on deep inspiration." An April 2014 letter from his private otolaryngologist notes that the Veteran has a "complete loss of voice from multiple laryngeal surgeries since 2003." The Veteran underwent a VA examination for this issue in June 2014. The resulting examination report reflects review of the record and interview and examination of the Veteran. The examiner determined that the Veteran has hoarseness and difficulty with speech, talking on the phone, and communicating. The examiner noted that the Veteran did not have inflammation of the vocal cords or mucous membrane, thickening of cords, nodules of cords, submucous infiltration of vocal cords, or vocal cord polyps. It was noted that the Veteran has dysphonia as a result of a partial laryngectomy. It was noted the Veteran does not have complete, organic aphonia, including constant inability to speak above a whisper or constant inability to communicate by speech. It was noted that the Veteran does have incomplete organic aphonia with constant hoarseness and soft, quiet speech. The Veteran has not had a permanent tracheostomy. It was noted that the Veteran had a malignant neoplasm for which he underwent a tumor resection and radiation therapy in 2003. As a result of this treatment, he has dysphonia and soft, hoarse speech. The June 2014 VA examiner also conducted a VA larynx and pharynx examination in June 2014. Following review of the claims file and interview and examination of the Veteran, the examiner noted that the Veteran is "unable to communicate except by whispering." The Board finds that the above evidence, prior to June 19, 2012, does not satisfy the criteria for a rating in excess of 10 percent. The record reflects that the Veteran had hoarseness, but not complete or incomplete organic aphonia during that period. Furthermore, there were no findings of thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. Therefore, the Board finds that, prior to June 19, 2012, a rating in excess of 10 percent for the Veteran's difficulty speaking as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, is not warranted. On and after June 19, 2012, however, the Board is able to resolve reasonable doubt in favor of the Veteran and grant a 60 percent rating based on its determination that the Veteran's symptomatology most closely approximates the criteria for the 60 percent rating under Diagnostic Code 6520. Specifically, the Board notes that the Veteran's voice was described as being "much more breathy since his last surgery" in the June 2012 record, and it was noted to have "poor volume." He was notified that his voice could not be fixed absent a permanent tracheotomy. The March 2014 letter describes a "weaker and weaker" voice with "whisper aphonia" and notes that the Veteran was "[u]nable to voice." The April 2014 letter notes "complete loss of voice." The June 2014 VA examination report notes incomplete organic aphonia with constant hoarseness and soft, quiet speech. Even though the June 2014 record expressly found that the Veteran does not have complete, organic aphonia, the Board finds that a combination of the private medical reports of an inability to speak above a whisper and the June 2014 examiner's finding that the Veteran is "unable to communicate except by whispering" more closely approximates the criteria for a 60 percent rating. The Board will therefore resolve reasonable doubt in favor of the Veteran and grant a 60 percent rating for speech difficulties effective June 19, 2012. The Board acknowledges that the April 2014 letter notes complete loss of voice. However, much more detailed records from shortly before and after that letter clearly reflect that the Veteran is at least able to whisper, and the record does not otherwise reflect that he briefly completely lost his voice in April 2014. The Board therefore finds that a rating in excess of 60 percent is not warranted. In sum, the Board finds that a rating in excess of 10 percent is not warranted for speech difficulties prior to June 19, 2012, but that a 60 percent rating, but no higher, is warranted for speech difficulties on and after June 19, 2012. To the extent that the benefit sought by the Veteran is being denied, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against assigning even higher ratings, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Respiratory Difficulty The Veteran is in receipt of a staged rating for stenosis of the larynx resulting in respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy. He has been assigned a 30 percent rating prior to May 23, 2014, and a 60 percent rating on and after that date, pursuant to 38 C.F.R. § 6520 (2014). Diagnostic Code 6520 applies to stenosis of the larynx, including residuals of laryngeal trauma, unilateral or bilateral. It allows for ratings between 10 percent and 100 percent based on pulmonary function test (PFT) results, specifically based on Forced Expiratory Volume in one second (FEV-1) values with Flow Volume Loop that is compatible with upper airway obstruction, or based on the presence of a permanent tracheostomy. Under Diagnostic Code 6520, FEV-1 less than 40 percent of predicted value, with Flow-Volume Loop compatible with upper airway obstruction, or permanent tracheostomy warrants a 100 percent rating. FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction, is assigned a 60 percent rating. FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction, is awarded a 30 percent rating. The post-bronchodilator findings from the PFTs are the standard in pulmonary assessment. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation as these results reflect the best possible functioning of an individual). The record reflects that the Veteran underwent pulmonary function testing in August 2007 and June 2014. The August 2007 VA examination report notes, in relevant part, that the Veteran has a productive cough and wheezing. On PFT testing, the Veteran was found to have a FEV-1 value of 62 percent predicted. These findings do not satisfy the criteria for a rating in excess of the current 30 percent under Diagnostic Code 6520. The June 2014 VA examination report notes, in relevant part, FEV-1 value of 45 percent predicted from a May 2014 PFT. These findings do not satisfy the criteria for a rating in excess of the current 60 percent under Diagnostic Code 6520. In short, the Veteran's respiratory disability has been properly evaluated pursuant to Diagnostic Code 6520 as 30 percent disabling prior to May 23, 2014, and as 60 percent disabling on and after that date. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to an increased rating for respiratory disability must be denied. C. Extraschedular Evaluations In reaching these conclusions, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disabilities at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2014). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran'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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected speech and respiratory difficulties are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Specifically, the Board finds that the rating criteria of Diagnostic Codes 6516, 6519, and 6520 adequately contemplate the types of impairment that are demonstrated in the evidence of record. The Veteran has not reported symptomatology associated with the difficulty speaking that is not contemplated by Diagnostic Code 6516 and 6519, while his respiratory symptomatology are compensated by the separate disability rating assigned under Diagnostic Code 6520. In short, there is nothing in the record to indicate that the service-connected speaking and respiratory disabilities on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Prior to June 19, 2012, entitlement to an initial evaluation in excess of 10 percent for difficulty speaking as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, is denied. On and after June 19, 2012, entitlement to an initial evaluation of 60 percent, but no higher, for difficulty speaking as a residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, is granted. Entitlement to an increased rating for stenosis of the larynx resulting in respiratory difficulty as residual of cancer of the larynx, status post radiation therapy and right vertical hemilaryngectomy, initially evaluated as 30 percent disabling and as 60 percent disabling on and after May 23, 2014, is denied. REMAND Finally, the Veteran contends that he cannot work due to his service-connected disabilities. He has therefore raised a claim for TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (once a veteran submits evidence of medical disability and additionally submits evidence of unemployability, VA must consider total rating for compensation based upon individual unemployability). The Court has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted. Id. at 455. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014). In this case, as noted above, the Veteran has raised a claim for TDIU. This claim appears in an April 2014 letter from the Veteran's private doctor in which he notes that he "cannot envision [the Veteran] being productive in a work setting with all of his problems." He specifically discusses all of the disabilities for which increased ratings were adjudicated above, opining that the Veteran "is considered disabled from my standpoint due to his complete loss of voice from multiple laryngeal surgeries since 2003 for laryngeal cancer, with a marginal airway also, with inability to go up more than one flight of stairs, getting winded on minimal efforts." In October 2014, the Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, providing pertinent information to support his TDIU claim. Pursuant to the holding in Rice, a claim for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. Therefore, the Board finds that a remand is necessary so that the agency of original jurisdiction can provide appropriate notice, and any additional development that is deemed necessary, on that aspect of the appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran proper Veterans Claims Assistance Act (VCAA) notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. In addition, perform any appropriate follow-up development in consideration of the Veteran's recently-submitted VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After the development requested above has been completed, and after any additional development that is deemed appropriate, again review the record. If the TDIU benefit remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs