Citation Nr: 1605449 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 12-27 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). By that rating action, the RO continued a 50 percent disability rating assigned to the service-connected PTSD and denied a claim of entitlement to TIDU. The Veteran appealed the RO's June 2011 rating action to the Board. In February 2015, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been incorporated into the Veteran's Veterans Benefits Management System (VBMS) electronic record. In May 2015, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional substantive development; specifically, to have VA reexamine the Veteran to determine the current (then) severity of his PTSD and to determine the effects of his PTSD, as well as his other service-connected disorders, on his ability to maintain substantially gainful employment. VA examined the Veteran in August 2015. A copy of the examination report has been incorporated into the electronic record. The issue of entitlement to TIDU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. VA will notify the appellant if additional action is required on his part. FINDING OF FACT For the entire appeal period, the evidence reflects that the Veteran's PTSD with depressive disorder has been productive of occupational and social impairment with deficiencies in most areas and an inability to establish and maintain effective relationships but without evidence of total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a schedular evaluation of 70 percent for service-connected PTSD with depressive disorder have been met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5013A, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2011 that fully addressed all notice elements and was sent prior to the initial RO decision on the increased rating claim decided herein. The letter informed him of what evidence was required to substantiate his increased rating claim and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of the increased rating claim to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). 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). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Second, the Veteran submitted statements and he, along with his spouse, provided testimony before the undersigned in support of his increased rating claim decided herein. Additionally, VA examinations with respect to the increased rating claim were undertaken in March 2012 and August 2015 in accordance with 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the above-cited VA examinations are more than adequate for evaluating the increased evaluation claim decided herein because they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the increased rating issue decided herein has been met. 38 C.F.R. § 3.159(c) (4). Finally, it is noted that this appeal was remanded by the Board in May 2015 for further development. Specifically, the Board instructed the RO to acquire all outstanding VA treatment records, and to afford the Veteran a VA examination in order to ascertain the current severity of his PTSD. Thereafter, VA treatment records, dated from June 2014 to July 2015, and an August 2015 VA PTSD examination report were incorporated into the Veteran's electronic record. The Board is now satisfied there was substantial compliance with its May 2015 remand with respect to the increased rating claim decided herein. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided VA examinations in March 2012 and August 2015, which the Board finds adequate for adjudication purposes. The RO also acquired the Veteran's most recent VA treatment records and incorporate them into his Veterans Benefits Management System (VBMS) electronic record. After the required development was completed, this issue was readjudicated and the Veteran was issued a supplemental statement of the case (SSOC) in August 2015. In an August 2015 statement, the Veteran indicated that he had read the SSOC and that he did not have any additional evidence to submit in support of his increased rating claim decided herein. Accordingly, the Board finds that its May 2015 remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Finally, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in February 2015. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the increased rating issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim decided herein. Smith v. Gober, 14 Vet. App. 227 2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Mittleider Concerns An August 2015 VA examiner specifically found psychiatric symptoms associated with the Veteran's non-service-connected mood disorder secondary to a general medical condition to have been independent from symptoms associated with his service-connected PTSD with depressive disorder. Thus, the Board will not attribute these symptoms to the service-connected PTSD with depressive disorder in its analysis below. In this regard, the Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). III. Merits Analysis The Veteran seeks an increased rating for his service-connected PTSD with depressive disorder. After a brief discussion of the laws and regulations pertaining to increased rating claims and psychiatric disabilities, the Board will analyze the claim. i. Increased Rating-General Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, such as here, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (2015). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). As will be demonstrated through the analysis below, the Veteran's PTSD symptoms have remained relatively constant throughout the course of the period on appeal as demonstrated by similar findings on VA examinations in March 2012 and August 2015, as well as VA treatment records submitted throughout the appeal period. While his symptoms have waxed and waned somewhat, as explained further below, the Board has found that his symptoms, when considered in their entirety and when he is afforded the benefits of the doubt, are consistent with the increased rating assigned herein during the entire appeal period. As such, staged ratings are not warranted for the Veteran's PTSD. Hart, supra. 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. See 38 C.F.R. § 4.7. ii. Psychiatric rating criteria The Veteran's service-connected PTSD with depressive disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The psychiatric symptoms listed in the rating criteria below are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the general rating formula for mental disorders, a 50 percent evaluation envisions occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation envisions occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Id. A 100 percent schedular evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss of names of close relatives, own occupation, or own name. Id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The Board notes that the newer American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-V) has now been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-V. The DSM-V does not contain information regarding GAF scores. However, since much of the relevant evidence was obtained during the time period that the DSM-IV was in effect, which DSM included reference to GAF scores, the Board will still consider this information as relevant to this appeal. Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-V. According to the DSM-IV, GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a)(2015). A GAF score of 41 to 50 indicates serious symptoms or a serious impairment in social, occupational, or school functioning. Carpenter 8 Vet. App. at 240, 242 (1995); Richard 9 Vet. App. at 266, 267 (1996). iii. Analysis The Veteran seeks a disability rating in excess of 50 percent for his PTSD with depressive disorder. He maintains that symptoms of his PTSD with depressive disorder have caused significant social and industrial impairment in his employment; thus, a higher rating of 70 percent disability is warranted. The Board finds that in affording the Veteran all reasonable doubt in his favor, an increased 70 percent disability rating is warranted for the service-connected PTSD with depressive disorder. When recently examined by VA in August 2015, the VA psychologist concluded that the Veteran's PTSD with depressive disorder had caused occupational and social impairment with reduced reliability and productivity. The VA psychologist noted that aside from mood disturbances that were a result of several family and non-family-related deaths, that his PTSD with depressive disorder was not significantly different than when he was examined by VA in [March] 2012. (See August 2015 VA PTSD examination report). A review of the March 2012 VA examination report is positive for the Veteran having exhibited significant social impairment (italics added for emphasis), primarily manifested by social isolation (e.g., he had no friends), avoiding public places, emotional detachment, and problems with impaired impulse control (e.g., he had removed all firearms from his home). The March 2012 VA Medical Director indicated that the Veteran had markedly (italics added for emphasis) diminished interest or participation in activities and that his PTSD symptoms had caused clinically significant distress or impairment (italics added for emphasis) in social occupational or other important areas of functioning. The March 2012 VA Medical Director concluded that the Veteran had PTSD symptoms that had waxed and waned, had affected his social functioning, and that an improvement in his symptoms was not good, prognosis-wise. (See March 2012 VA examination report). The Board notes that VA treatment reports, dated prior and subsequent to the March 2012 VA examination report, confirm that the intensity of the Veteran's PTSD symptoms had varied throughout the appeal period. For example, a December 2010 VA treatment report reflects that the Veteran reported having social isolation, avoidance behaviors, and anger-control issues. (See December 2010 VA treatment report, labeled as "Medical Treatment-Government Facility," and received and uploaded to the Veteran's VBMS electronic record on December 20, 2010). A January 2011 VA treatment report reflects that the Veteran complained of being emotionally stressed secondary to infirm family members. At that time, the examining clinician entered a GAF score of 50, which is indicative of serious symptoms or a serious impairment in social, occupational, or school functioning. Carpenter at 8 Vet. App. at 240, 242 (1995). (See January 2011 VA treatment report, labeled as "Medical Treatment-Government Facility," received and uploaded to the Veteran's VBMS electronic April 7, 2011). In addition, a July 2014 treatment report reflects that the Veteran demonstrated fair grooming and hygiene. Conversely, a June 2011 VA treatment report, as well as the August 2015 VA examination report, reflects that the Veteran's social impairment had improved. In this regard, he reported having reduced emotional stress secondary to having gone camping with his family and that he enjoyed camping and eating in the park with his spouse and playing with his dog. (See VA treatment reports, dated from April to June 2011 and August 2015 VA PTSD examination report). Overall, the Board finds that the evidence supports the March 2012 VA Medical Director's conclusion that the Veteran's PTSD symptoms had waxed and waned since he was initally diagnosed with PTSD and that they had caused clinically significant (italics added for emphasis) distress or impairment in social occupational or other important areas of functioning. (See March 2012 VA PTSD examination report, received and uploaded to the Veteran's VBMS electronic record). Regarding occupational impairment, the Veteran reported being unemployed as a result of having voluntarily switched jobs or from being laid off. The Veteran indicated that he could perform his previous employment if he did not have vision and other physical impairments. He reported that while he had good relations with most of his coworkers and supervisors, that he had difficulty with "Asians" and "Middle Easterners" because they reminded of his active service in the Republic of Vietnam. The August 2015 psychologist concluded that the Veteran had stable employment with good performance given the long-tern nature of his previous time with his employers (i.e., the Veteran had worked as a CAD designer since 1980 until he was laid off in May 2015). (See August 2015 VA PTSD examination report at page (pg.) 4)). In view of the foregoing, the Board finds that the Veteran's symptoms associated with service-connected PTSD with depressive disorder are sufficient to warrant a 70 percent disability rating for the appeal period in light of occupational impairment and work deficiencies and significant social impairment for the entire appeal period. The Board finds that the Veteran's disability picture has not more nearly approximated total occupational and social impairment during the appeal period. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The Veteran has not exhibited a total occupational and social impairment due to such symptoms at any point during the appeal period. He has not reported having experienced delusions or hallucinations and, certainly, not persistent ones. Although a June 2014 VA treatment report disclosed that the Veteran demonstrated fair grooming and hygiene, this was on one occasion and does not demonstrate an intermittent inability to perform activities of daily living. The Veteran was oriented in all spheres (time, place and person) during the March 2012 and August 2015 VA examinations. Although the Veteran exhibited some short-term memory loss during the August 2015 VA examination, his long-term memory was within normal limits. Moreover, during the above-cited VA examinations, he denied suicidal and homicidal ideation. Finally, and as noted in the preceding analysis, an August 2015 VA psychologist concluded that the Veteran had stable employment with good performance given the long-tern nature of his previous time with his employers (i.e., the Veteran had worked as a CAD designer since 1980 until he was laid off in May 2015). (See August 2015 VA PTSD examination report at page (pg.) 4)). Consequently, he is not entitled to a 100 percent rating during this period, to include on the basis of "staged" rating(s) pursuant to Hart, supra. IV. Extraschedular Rating Consideration The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). Extraschedular consideration under 38 C.F.R. § 3.321(b)(1), however, is to be solely a disability-by-disability basis rather than on the combined effect of a veteran's service-connected disabilities. See Johnson v. Shinseki, 26 Vet. App. 237, 245 (2013) (en banc). Although the issue of entitlement to a TDIU is being remanded for additional development, the Board finds there is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant an extraschedular rating for the service-connected PTSD with depressive disorder on appeal. This disability is found to be adequately rated under the available schedular criteria and the objective findings of impairment are well documented, as indicated by the Board's award of a 70 percent disability rating under Diagnostic Code 9411 in the analysis above. Thus, no further analysis under 3.321 is necessary. The Court in Thun v. Peake, 22 Vet. App. 111 (2008) established a three-step inquiry for determining whether a veteran is entitled to extraschedular rating consideration. First, determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, then determine whether the claimant'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 Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board's preceding analysis of the claim reflects that the psychiatric symptoms described by the Veteran are contemplated by the applicable rating criteria. The criteria contemplate the frequency and severity of the symptoms from the Veteran's PTSD with depressive disorder and their impact on social and occupational functioning. Hence, the evidence compels the conclusion that the degree of impairment in this case does not rise to the level that application of the regular schedular standards are impractical. Therefore, referral for consideration of an extraschedular rating for the service-connected PTSD with depressive disorder is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER A 70 percent evaluation, but no more, is assigned for service-connected PTSD with depressive disorder, subject to controlling regulations governing the payment of monetary awards. REMAND A remand is required with respect to the Veteran's TDIU claim in order to ensure compliance with the Board's May 2015 remand directives. Stegall v West, 11 Vet. App. 268, 271 (1998). In its May 2015 remand directives, the Board requested that the VA examiner "[m]ust comment on the functional effects/impairment of the Veteran's service-connected disorders relative to his claim of individual unemployability." (See May 2015 Board remand at pg. 4). In response, the August 2015 VA psychologist provided an opinion as the effect that the Veteran's PTSD with depressive disorder had on his ability to secure gainful employment. She pointedly indicated, however, that her opinion did not take into account any physical barriers to occupational functioning. Thus, the VA psychologist's opinion did not incorporate the Veteran's physical service-connected disabilities, such as bilateral monocular diplopia ( evaluated as 30 percent disabling); tinnitus (evaluated as 10 percent disabling); and bilateral hearing loss (evaluated as noncompensably disabling)). Thus, because there has not been compliance with the Board's May 2015 remand directive, the issue of entitlement to TDIU is remanded to the AOJ. Stegall v West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED to the AOJ for the following action: 1. Schedule the Veteran for a VA examination, to be conducted, if possible, by a physiatrist or vocational rehabilitation specialist, to ascertain the aggregate impact of his service-connected disabilities on his employability. The examiner must review the electronic record and this Remand in conjunction with the examination. The examiner is advised that the Veteran is presently service-connected for PTSD (rated as 70 percent disabling); bilateral monocular diplopia (evaluated as 30 percent disabling); tinnitus (evaluated as 10 percent disabling); and, bilateral hearing loss (evaluated as noncompensably disabling). Taking into account this Veteran's education, training, and work history, (but without regard to the Veteran's age or the impact of any nonservice-connected disabilities), the examiner must comment on functional impairment caused solely by the aggregate impact of all of the service-connected disabilities relative to the Veteran's ability to secure or follow a substantially gainful occupation. Nonservice-connected disabilities and age should be neither considered nor mentioned. If the examiner determines that the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Readjudicate the claim of entitlement to a TDIU rating. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs