Citation Nr: 1639655 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 09-50 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation of higher than 10 percent from July 20, 2012 to present for allergic rhinitis with sinusitis. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 10, 2012 to present under schedular criteria. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 10, 2012 under extraschedular criteria. REPRESENTATION Appellant represented by: Robert Chisholm Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1981 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. Jurisdiction has been subsequently transferred to the Seattle, Washington RO. In January 2015, the Veteran testified during a hearing before the undersigned VLJ. A transcript of the hearing is of record. These matters were previously addressed in an October 2015 Board decision-remand, and an explanation of the case's extensive procedural history is included in that decision. The October 2015 decision from August 13, 1988 to July 18, 1995 granted an increased rating to 30 percent; from July 18, 1995 to June 1, 2001 denied a rating in excess of 30 percent; from June 1, 2001 to July 20, 2012 denied a rating in excess of 10 percent; and denied entitlement to TDIU for the period up until July 20, 2012. As to the Veteran's claim for an increased rating for his allergic rhinitis with sinusitis condition for the time period of July 20, 2012 to present, and entitlement to TDIU from July 20, 2012 to present, the October 2015 Board decision remanded for a new VA examination. A VA examination was conducted, as such, remand instructions were properly followed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In March 2016, a Joint Motion for Partial Remand entered by the Court of Appeals for Veterans' Claims vacated and remanded the October 2015 Board decision to the extent that it denied entitlement to a TDIU for the period prior to July 20, 2012. As such, the issues of entitlement to an evaluation of higher than 10 percent from July 20, 2012 to present for allergic rhinitis with sinusitis and entitlement to a TDIU are again before the Board. The Board has reviewed the electronic files on Virtual VA and VBMS to ensure a complete review of the evidence in this case. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The appeal of entitlement to a TDIU prior to September 10, 2012 under extraschedular criteria is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From July 20, 2012 to present, the Veteran's allergic rhinitis with sinusitis manifested as one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 2. From July 20, 2012 to present, the Veteran's allergic rhinitis with sinusitis did not manifest as three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. 3. From July 20, 2012 to present, the Veteran's allergic rhinitis with sinusitis manifested as moderate chronic frontal sinusitis with discharge or crusting or scabbing, and infrequent headaches. 4. From July 20, 2012 to present, the Veteran's allergic rhinitis with sinusitis did not manifest as severe chronic frontal sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge, or crusting reflecting purulence. 5. With full consideration of the Veteran's educational and occupational background, the evidence of record supports a finding that his service-connected disabilities render him unable to secure and follow substantially gainful employment from September 10, 2012 to present. CONCLUSIONS OF LAW 1. From July 20, 2012 to present, the criteria for a disability rating of no greater than 10 percent for allergic rhinitis with sinusitis has been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.124a, Diagnostic Code (DC) 6522-6512 (2015). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities are met from September 10, 2012 to present on a schedular basis. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but is not required to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA has a duty to provide claimants with notice and assistance in the development of their claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159 (2015). In regard to the Veteran's claim for TDIU, as this decision from September 10, 2012 to present represents a full grant of benefits, defects of the duties to notify and assist are moot. For the period prior to September 10, 2012, a May 2012 letter satisfies the duty to notify. In regard to the increased rating claim for allergic rhinitis with sinusitis, because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the VCAA, 38 U.S.C.A. § 5103(a) (West 2014) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the Veteran's claim file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2015). In this case, VA examinations were conducted in July 2012 and January 2016. The Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regard to these claims. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These examinations, along with the remaining evidence of record, contain sufficient findings to rate the Veteran's service-connected disability under the appropriate diagnostic criteria and determine entitlement to TDIU for the time period until July 20, 2012. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating of Allergic Rhinitis with Sinusitis Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no evidence to support the finding of a staged rating in this case. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the Veteran is rated for allergic rhinitis with sinusitis under 6522-6512, the Diagnostic Codes for allergic or vasomotor rhinitis and chronic, frontal sinusitis, respectively. The Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2015). Where pertinent statutes or regulations change while a claim is pending, the Board must consider the claim in light of both the former and revised schedular rating criteria to determine whether the disability warrants and increased evaluation. VA's General Counsel has determined that amended rating criteria, if favorable to the claim, may be applied only for periods from and after the effective date of the regulatory change. The Veteran does, however, get the benefit of having both the old and new regulations considered for the applicable periods after the effective date of the change. See VAOPGCPREC 3-00. That guidance is consistent with longstanding statutory law to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g) (West 2014). During the course of this appeal, VA made substantive changes by regulatory amendment to the schedular criteria for evaluating diseases of the respiratory system. The new regulations became effective October 7, 1996; see 61 Fed. Reg. 46,720. The regulations are detailed below. Legal Criteria prior to October 7, 1996 Under the rating criteria in effect prior to October 7, 1996, chronic frontal sinusitis with X-ray manifestations only, symptoms mild or occasional, warranted a noncompensable rating. 38 C.F.R. § 4.97 Diagnostic Code 6512 (1995). Moderate chronic frontal sinusitis with discharge or crusting or scabbing, and infrequent headaches, warranted 10 percent evaluation. A 30 percent evaluation required severe chronic frontal sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge, or crusting reflecting purulence. Postoperative chronic frontal sinusitis, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations warranted a 50 percent evaluation. Under Diagnostic Code 6501 in effect prior to October 7, 1996, for allergic rhinitis, a 10 percent evaluation was warranted for chronic atrophic rhinitis with definite atrophy of the intranasal structure and moderate secretion. A 30 percent evaluation required moderate crusting, ozena, and atrophic changes. With massive crusting and marked ozena, with anosmia, a 50 percent evaluation was for application. Legal Criteria after October 7, 1996 Under the current criteria, under DC 6512, the General Rating Formula provides that where sinusitis is detected by X-ray only, a noncompensable disability is to be assigned. A 10 percent disability rating is warranted where there are one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent disability rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The maximum 50 percent disability rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, DC 6512 (2015). A note following the General Formula defines an "incapacitating episode" as one that requires bed rest and treatment by a physician. Id. Under DC 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, DC 6522 (2015). Facts and Analysis The Board does not find evidence that a rating higher than 10 percent is warranted from July 20, 2012 to present. In January 2011 and April 2011, sinusitis was confirmed by CT. An antibiotic was ordered in January 2011 for allergies, for five days without refills. In October 2011, the Veteran was prescribed three weeks of antibiotic therapy. The Veteran appeared for a VA examination in regard to his allergic rhinitis with sinusitis disability last in July 2012. The Veteran reported more than 7 or more non-incapacitating episodes in the past year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; however, this statement is not supported by the competent medical evidence of record; further, this is prior to the time-frame on appeal. He reported suffering one incapacitating episode in the past year. The Veteran reported requiring antibiotic therapy two to four times yearly or more, again, this statement is not supported by the competent medical evidence of record. A CT was performed and no nasal polyps were found. A February 2014 private treatment stated that the Veteran uses Flonase and Astelin nasal sprays almost daily and that his allergic rhinitis symptoms as a result were fairly well-managed. The Veteran reported suffering from sinusitis 3-4 times yearly lasting 1 week-2 months. Also in February 2014, the Veteran was diagnosed with influenza with other respiratory manifestations and acute sinusitis. A March 2014 treatment note reflects reports of 4-5 times weekly history of post-nasal drip, sinus pressure, throat irritation, intermittent cough, headaches due to sinus pressure, lightheadedness, and coughing mucous. The Veteran had taken a course of antibiotics for current symptoms which had not worked. Another course was prescribed. The Board observes that the Veteran was suffering from influenza a month prior; therefore the antibiotics could have been used to treat other ailments at that time in addition to the sinusitis. An August 2014 private treatment note reflected that the Veteran reported congestion, sneezing, irritation, and itching, as well as purulent drainage and post-nasal drip with sinus pressure, which can last several months at a time. During the January 2015 Board hearing, the Veteran stated that since service he suffers episodes up to three monthly and over 30 yearly; during these episodes he is off work. He stated that he sees a doctor five to six times for antibiotics, 3-4 weeks on average. However, it is unclear if the episodes described took place during the July 2012 to present time-frame. A January 2016 VA treatment note records that the Veteran stopped taking his medication for allergic rhinitis and sinusitis because he wanted his symptoms active for the evaluators. Therefore, the physician noted "exacerbation of symptoms following medication noncompliance," and noted as well that the Veteran may have been suffering from the common cold at the time. The Veteran appeared for a VA examination in January 2016. The Veteran reported frequent "infections," fever, cough, lethargy, and asthma (the Veteran is service-connected for asthma). The reported he was not medicated for the examination and he feels he has an acute sinus infection today. He reported twice monthly flares if he does not take antihistamines, 10/10 severity, lasting 1-6 weeks. The Veteran reported the symptoms make him lethargic and render him sensitive to fumes while working as a chef. The examiner found no incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotic treatment and no non-incapacitating episodes in the past 12 months. The examiner indicated that the objective findings were inconsistent with the Veteran's reports. The examiner stated that the Veteran's nasal condition is now better characterized as chronic allergic rhinitis with a single episode of acute sinusitis requiring antibiotic treatment in March 2014 since his last VA evaluation in July 2012. The examiner found no current objective data to support a present diagnosis of sinusitis. From July 20, 2012 to present, the evidence of record does not support that the Veteran suffered three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, as required for a 30 percent rating under DC 6512. The Board acknowledges that the Veteran has reported frequent flares of sinusitis. However, the competent medical evidence does not indicate that the Veteran has suffered more than six non-incapacitating episodes per year of sinusitis. In February 2014, the Veteran reported suffering from sinusitis 3-4 times yearly. The January 2016 VA examiner, upon review of the claims file, stated there was no present diagnosis of sinusitis and that the Veteran had a single episode of acute sinusitis requiring antibiotic treatment in March 2014 since his last VA evaluation in July 2012; the Veteran at that time had also recently suffered from influenza. While the Board notes the Veteran's statements that he has suffered sinusitis more frequently, the Board finds those statements outweighed by the VA examiner's opinion, as lay people have not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses, such as diagnosing sinusitis as opposed to another condition such as influenza. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Further, there is no evidence that supports radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries, as required for a 50 percent rating under DC 6512. There is no indication of allergic rhinitis with polyps are present, as required for a 30 percent rating under DC 6522. The Board has also considered whether a higher rating would be appropriate under the old criteria prior to October 7, 1996, but finds it would not be. There is no indication of severe chronic frontal sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge, or crusting reflecting purulence, as required for a 30 percent evaluation under DC 6512. There is no evidence of postoperative chronic frontal sinusitis, following radical operation, with chronic osteomyelitis requiring repeated curettage, or severe symptoms after repeated operations which would warrant a 50 percent evaluation under DC 6512. Further, there is no evidence of allergic rhinitis with moderate crusting, ozena, and atrophic changes, for a 30 percent evaluation under DC 6501, nor massive crusting and marked ozena, with anosmia, for a 50 percent evaluation under DC 6501. The Board does not find that additional rating is appropriate under DC 6512 and DC 6501, as the 10 percent rating assigned contemplates the symptomatology of the Veteran's allergic rhinitis with sinusitis, as reflected in the medical evidence as stated. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. at 206. Extraschedular Considerations The Board also notes that the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's allergic rhinitis with sinusitis disability so as to warrant the assignment of a higher evaluation than 10 percent from July 20, 2012 to present on an extra-schedular basis. There is no showing that the Veteran's disability is manifested by symptomatology not contemplated by the rating criteria. Accordingly, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2015). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a) (2015). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the Veteran is service-connected for migraine headaches, asthma, a left wrist disability, and allergic rhinitis with sinusitis. The Veteran's combined evaluation is 70 percent as of September 10, 2012. The Veteran's migraine headaches are rated as 50 percent. As such, the Veteran does meet the schedular requirements under 38 C.F.R. § 4.16(a) as of September 10, 2012. Further, the Board finds the evidence shows that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities as of September 10, 2012. In July 2012, a VA physician opined that the Veteran was unable to work due to his sinus infections as he does not have the skill set to work in a "clean room" building without irritants to his sinuses. An April 2013 SSA decision found the Veteran disabled since July 16, 2010, in part due to his allergies. The Veteran has submitted a July 2016 vocational assessment with the opinion that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation because of his service-connected conditions since 2011. As such, the greater weight of evidence does reflect that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected migraine headaches, asthma, left wrist, and allergic rhinitis with sinusitis disabilities. Entitlement to TDIU is so granted as of September 10, 2012 under schedular criteria. ORDER Entitlement to an evaluation of higher than 10 percent from July 20, 2012 to present for allergic rhinitis with sinusitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from September 10, 2012 to present under schedular criteria. REMAND Where the percentage requirements for schedular consideration, defined above, are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). In this case, prior to September 10, 2012, the Veteran's combined evaluation is less than 70 percent. As such, the Veteran does not qualify for TDIU on a schedular basis at the present time for the time frame prior to September 10, 2012. As noted, the Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. As such, a remand is required to refer the case for an evaluation of extraschedular rating prior to September 10, 2012. 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. Refer the claim for TDIU prior to September 10, 2012 to the Director, Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321. 2. Then, after conducting any additional development deemed warranted, the claim for entitlement to TDIU prior to September 10, 2012 must be adjudicated to include consideration of whether an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b) is appropriate. If the determination is unfavorable, he and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs