Citation Nr: 1608471 Decision Date: 03/02/16 Archive Date: 03/09/16 DOCKET NO. 09-39 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals, postoperative temporomandibular derangement. 2. Whether an April 23, 1999, rating decision, which implicitly denied a claim of entitlement to a total disability rating based on individual unemployability (TDIU), should be reversed or revised on the basis of clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1968. The increased rating claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, in pertinent part, denied a disability rating in excess of 20 percent for residuals, postoperative temporomandibular derangement. In September 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) on the increased rating issue only. A transcript of this hearing is associated with the claims file. In January 2012 and September 2014, the Board remanded the increased rating claim to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The issue of whether an April 23, 1999, rating decision, the Veteran contends implicitly denied a claim of entitlement to a TDIU, should be reversed or revised on the basis of CUE is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's residuals, postoperative temporomandibular derangement are manifested, at worst, by inter-incisal motion functionally limited to the range of 27 to 30 mm, left lateral excursion to 2 mm, and right lateral excursion to 4 mm; his temporomandibular joint is additionally limited by pain. CONCLUSION OF LAW The criteria for a rating of 30 percent for residuals, postoperative temporomandibular derangement, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.150, Diagnostic Code 9905 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2015). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In a letter dated in March 2007, the Veteran was informed of the information necessary to substantiate his claims. These letters also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The letters also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The rating decision on appeal reflects the initial adjudication of the claims after issuance of this letter. Hence, the letter met the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private treatment records, VA examination reports, Social Security Administration records, hearing testimony, and lay statements from the Veteran. Additionally, the prior remand instructions were substantially complied with. Instructions from the January 2012 Board remand pertinent to the claim being decided included scheduling the Veteran for a VA examination to determine the severity of his residuals, postoperative temporomandibular derangement. In response, the RO/AMC scheduled the Veteran for a VA examination in January 2012 and an addendum opinion was authored in September 2013 (though the examiner entered the information in December 2014). The September 2014 remand required that the examiner provide an addendum opinion that considered the Veteran's complaints that his residuals, postoperative temporomandibular derangement caused vision and hearing problems and provided a rationale for the previous negative opinion. The examiner provided that opinion in February 2015, and it is sufficient to determine the severity of the residuals of postoperative temporomandibular derangement. 38 C.F.R. § 3.326 (2015). Furthermore, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). The record reflects that the Veteran underwent VA examinations to evaluate his residuals, postoperative temporomandibular derangement in April 2007, March 2011, and January 2012. An addendum opinion was provided in September 2013 (though the author entered the information in December 2014) and February 2015. The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners either reviewed the claims file or were otherwise informed of the relevant facts of the Veteran's medical history, considered the contentions of the Veteran, thoroughly examined the Veteran, and addressed the relevant rating criteria, including the functional effects caused by the Veteran's jaw disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Veteran has been afforded a hearing before the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veteran's representative asked specific questions directed at identifying information required to substantiate the Veteran's claim. The VLJ specifically sought to identify pertinent evidence not currently associated with the claims file, and the Veteran also volunteered his treatment history. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including at a travel board hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2015); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2015); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2015); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2015). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2015). Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2015). For the purpose of rating disability from arthritis, the knee and ankle are considered major joints while the lumbar vertebrae are considered groups of minor joints. See 38 C.F.R. § 4.45. The Veteran filed a claim for an increased rating in excess of 20 percent for residuals, postoperative temporomandibular derangement, in January 2007. Such disability has been rated under 38 C.F.R. § 4.150, Diagnostic Code 9905, as 10 percent disabling prior to January 12, 2006, and as 20 percent disabling thereafter. Under Diagnostic Code 9905, when the range of lateral excursion about the temporomandibular articulation is within 0 to 4 mm or when the range of inter-incisal motion about the temporomandibular articulation is from 31 to 40 mm, a 10 percent rating is warranted; an inter-incisal range of 21 to 30 mm warrants a 20 percent rating; an inter-incisal range of 11 to 20 mm warrants a 30 percent rating; and an inter-incisal range of zero to 10 mm warrants a 40 percent rating. Ratings for limited inter-incisal movement, however, may not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150, Diagnostic Code 9905. The Veteran underwent a VA examination in April 2007. The examiner reviewed the Veteran's history related to his residuals, postoperative temporomandibular derangement. The examination revealed that the Veteran had a metal condylar plate on the right side, with a small wire that "appears to have dislodged from the prosthesis" and several missing teeth. The Veteran complained that he could not chew or eat hard foods; he also stated that he could not wear his lower partial denture due to pain when he uses it. The Veteran's range of motion testing revealed that he had inter-incisal motion to 31 mm and lateral excursion, bilaterally, to 5 mm. The examiner noted that the Veteran's x-rays revealed right condyle fracture. The examiner indicated that the Veteran had limited motion of the jaw due to the fractured right mandibular condyle, and noted that the Veteran is experiencing pain and headaches as a result. The examiner finally noted that the Veteran had an "immediate lateral shift" of the jaw when opening, with clicking. VA treatment records from January 2007 and October 2007 indicate that the Veteran sought treatment for his residuals, postoperative temporomandibular derangement. In October 2007, he complained that this temporomandibular joint was giving him problems, with increased pain. In a March 2008 dental record, it was noted that he has chronic pain. An examination was provided in March 2011. At that time, the examiner noted the Veteran's history regarding his broken mandibular right condyle, which he sustained from a fall that occurred in 1984 or 1985. The Veteran indicated that he had "no current treatment" except for a palliative soft occlusal guard to help with pain in the joint. The Veteran reported that his mandibular anterior teeth were loosened in the fall, but that he did not lose any teeth and no splinting was required. The Veteran reported difficulty chewing and some limitation on repeated opening of mouth. The Veteran reported moderate pain in the temporomandibular joint. On examination, there was no tooth loss due to the loss of substance of the body of maxilla or mandible, loss of bone of the maxilla, or malunion or nonunion of the maxilla. The examiner noted that there was a loss of condyloid process. The examiner stated that the Veteran had a total loss of the right condyle and that it had been replaced with an implant. The Veteran had "some" fatigue of the masticatory muscles on repetition. There was no evidence of loss of bone of hard palate, osteoradionecrosis, or osteomyelitis. Range of motion testing revealed that the Veteran inter-incisal range of motion to 30 mm, right lateral excursion to 7 mm, and left lateral excursion to 2 mm. On repetitive motion, the Veteran's inter-incisal range of motion was to 27 mm with some weakening shown on repeated opening. The Veteran complained of some spontaneous discomfort of the joints "especially on repeated motion or staying open for any length of time." During the Veteran's September 2011 hearing, he reported problems with chewing and feeling that his bite is "off." He also reported that his jaw seems to pop out of place and he has to "physically massage it and it will come back in place." See Hearing Transcript. The Veteran suggested that his bone deteriorated and that he required prosthesis. The Veteran also complained of problems with his vision. The Board notes that this issue was remanded in January 2012 for a VA examination and opinion. The Veteran was afforded a VA examination in January 2012 to determine the current severity of the service-connected disability. The examiner noted the Veteran's history related to his residuals, postoperative temporomandibular derangement. The examiner noted that the Veteran complained of flare-ups that impact the function of the temporomandibular joint; he stated that, after about 4 or 5 chews, he has pain and loss of motion. Range of motion testing revealed that the Veteran had lateral excursion of 0 to 4 mm, with painful motion beginning at 0 to 4 mm. The Veteran's inter-incisal range of motion was recorded as 31 to 40 mm and painful motion began at 31 to 40 mm. On repetitive motion testing, the Veteran's lateral excursion was 0 to 4 mm, bilaterally. And, his inter-incisal distance was 21 to 30 mm. The examiner noted that the Veteran the Veteran had functional loss insofar as he had less movement than normal, weakened movement, excess fatigability, and pain on movement. The VA examiner was also asked to provide a medical opinion regarding the etiology of his current vision problems, as the Veteran attributed his current vision problems to his service-connected residuals, postoperative temporomandibular derangement. In response, the January 2012 VA examiner determined that the Veteran's vision problems were not "caused by or a result of his temporomandibular joint dysfunction (TMJ) condition." Another opinion was provided in September 2013, although the clinician entered the information in December 2014, according to the record. At that time, the examiner reviewed the claims file and provided the opinion that it is less likely than not that the Veteran's current hearing and vision problems were caused or aggravated by his service-connected residuals, postoperative temporomandibular derangement. The examiner provided the rational that he did not know of a correlation between the relationship of his residuals from trauma, postoperative temporomandibular derangement to aggravation of current hearing and vision problems. He also opined that he knows of no correlation between the hearing and vision problems to trauma residuals, postoperative temporomandibular derangement. The Board found this negative opinion to be inadequate, because the examiner did not provide any rationale for this negative nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Board found that the VA examiner, in addressing secondary service connection, did not address whether the Veteran's current hearing and vision problems were aggravated beyond their natural progression by the service-connected residuals, postoperative temporomandibular derangement. 38 C.F.R. § 3.310 (2015). As such, the Board remanded the claim for an addendum opinion, or, if the examiner deemed necessary, a new examination. An addendum opinion was provided in February 2015. The examiner stated that he could not determine a baseline severity of the claimed condition based on the medical evidence prior to aggravation. He provided the rationale that, although the evaluation of hearing and vision problems as well as aggravation of hearing and vision problems is outside the scope of dental practice, a review of the records provided did not indicate that an aggravation or worsening had occurred. Regardless of the baseline, the examiner stated that the Veteran's claimed condition was not at least as likely as not aggravated beyond its natural progression. In providing a rationale, the examiner explained that he does not know of a cause and effect between residuals, postoperative temporomandibular derangement and aggravation or worsening of hearing and vision problems. So, the examiner opined that the Veteran's current hearing and vision problems were less likely as not caused by, a result of, or aggravated by the Veteran's service-connected residuals, postoperative temporomandibular derangement. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's residuals, postoperative temporomandibular derangement are appropriately evaluated as 30 percent disabling. The objective findings of record do not reflect limitation of inter-incisal motion between 0 mm to 10 mm of the Veteran's temporomandibular joint to warrant a higher evaluation under Diagnostic Code 9905. Indeed, the Veteran had, at worst, left lateral excursion to 2 mm, and right lateral excursion to 4 mm; and inter-incisal motion limited to 27 mm on repetitive motion, as demonstrated at the March 2011 VA examination. However, the Board must also consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). As noted previously, in Mitchell, supra, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Mitchell v. Shinseki, 25 Vet. App. 32, quoting 38 C.F.R. § 4.40. Here, the medical evidence on examination indicates that the Veteran had trouble using chewing and that he experienced pain and stiffness from eating or holding his jaw open; he also complained of headaches and vision problems caused by the pain. In the instant case, the Board finds that for the period under question, the Veteran's residuals, postoperative temporomandibular derangement has manifested by subjective complaints of pain, and there is functional impairment of additional limitation of motion due to pain upon repetitive motion, as is required for eating and talking. Therefore, resolving doubt in the Veteran's favor, the Veteran is entitled to a 30 percent rating pursuant to Mitchell, DeLuca, and 38 C.F.R. §§ 4.40, 4.59. The Veteran's complaints of having painful limitation of motion of his residuals, postoperative temporomandibular derangement with activity (i.e. movement of his jaw) have been considered by the Board and are contemplated in the assignment of the higher 30 percent rating. The Board has also considered whether the Veteran's c residuals, postoperative temporomandibular derangement presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board finds that the Veteran's complaints of painful limitation of motion and associated symptoms are contemplated by the rating criteria. The diagnostic codes in the rating schedule corresponding to disabilities of temporomandibular articulation ratings on the basis of limitation of motion. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The Veteran has not described any unusual or exceptional features associated with his residuals, postoperative temporomandibular derangement or described how the impairment associated with his disability impacts him in an exceptional or unusual way that has not been accounted for in his current rating. Thus, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Consequently, referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The Court has held that a request for a total rating based upon individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (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. In this case, the evidence does not show, and the Veteran does not contend, that his residuals, postoperative temporomandibular derangement, render him unable to obtain and maintain substantially gainful employment. Therefore, entitlement to TDIU is not raised by the Veteran or the record in connection with the issues before the Board and, as such, need not be further addressed. ORDER Entitlement to a rating of 30 percent, but no higher, for residuals, postoperative temporomandibular derangement is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The Veteran filed a claim for clear and unmistakable error (CUE) in the April 23, 1999, rating decision in October 2014. The rating decision at issue increased the Veteran's rating for residuals of a left ankle sprain to 20 percent, continued the 10 percent rating for temporomandibular derangement, and increased the Veteran's rating for posttraumatic stress disorder (PTSD). In so doing, the Veteran's representative contends that the RO implicitly denied entitlement to a total disability based on individual unemployability (TDIU). The Veteran's representative indicated that the January 20, 1999 VA examiner opined that the Veteran was unable to work due to his PTSD. Thus, the Veteran's representative stated that the issue of TDIU was reasonably raised by the record, and by not addressing TDIU in the rating decision, the RO implicitly denied the TDIU claim in the April 1999 rating decision. In a July 2015 rating decision, the RO denied the Veteran's claim for CUE. Then, in July 2015, the Veteran filed a timely Notice of Disagreement. Significantly, however, to date, the AOJ has not issued a SOC in response. Thus, the Board is required to remand the matter for issuance of a Statement of the Case addressing the issue. See 38 C.F.R. § 19.9(c); see also Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a Statement of the Case regarding the issue of CUE regarding the implicit denial of TDIU in the April 1999 rating decision, and advise him of the time period in which to perfect the appeal. If the Veteran perfects his appeal of these issues in a timely fashion, the case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs