Citation Nr: 1733663 Decision Date: 08/17/17 Archive Date: 08/23/17 DOCKET NO. 11-04 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating higher than 20 percent for diabetes mellitus, type II. 2. Entitlement to an initial compensable rating for erectile dysfunction (ED). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Buck Denton, Associate Counsel INTRODUCTION The Veteran had active duty from February 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Montgomery, AL, which granted service connection for ED associated with the Veteran's diabetes mellitus, type II (DM II), assigning an initial noncompensable rating effective February 15, 2008, while denying a rating higher than 20 percent for DM II. In January 2016, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge of the Board, a transcript of which is on file. The claim was previously before the Board in April 2016, at which time the Board remanded the case for additional development, to include obtaining contemporaneous VA examinations for his DM II and erectile dysfunction, and obtaining additional VA and private treatment records. That development having been completed, the case has returned to the Board. Additionally, the Veteran filed a formal claim for a TDIU during the pendency of this appeal, which was adjudicated and denied by the RO. See March 2017 Rating Decision. In a Statement of the Case (SOC) issued on August 9, 2017, the RO continued to deny entitlement to a TDIU. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (indicating that VA waives objection to timeliness of an appeal by taking actions that lead the Veteran to believe than an issue is properly in appellate status). The Board notes that the Veteran has not yet filed a substantive appeal; however, he is still well within the time period for perfecting an appeal of any of the issues listed in that August 2017 SOC to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2016) (setting forth requirements and time limits for perfecting an appeal to the Board). Nevertheless, the Veteran has asserted that his service-connected diabetes mellitus contributes to his current unemployment. See, e.g., August 2016 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (listing "Diabetes Mellitus Type II" as one of the service-connected conditions that caused his unemployability). In this regard, in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) determined that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the evidence of record, is not a separate "claim" for benefits, but rather, is considered part and parcel of a claim for benefits for the underlying disability. Furthermore, in Mayhue v. Shinseki, 24 Vet App 273 (2011), the Court determined the Board had failed to apply 38 C.F.R. § 3.156 (b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his PTSD. The Court, citing Rice, reasoned that a request for a TDIU is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability or disabilities. Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim. As the Veteran has asserted that he is unemployed at least in part as a result of his service-connected diabetes mellitus, the Board has jurisdiction over this issue as part and parcel of the current appeal. Therefore, in considering the increased ratings on appeal, the Board finds that the issue of entitlement to a TDIU is also currently before the Board, and as such, the issues are as stated on the cover page. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's diabetes mellitus, type II, has been manifested by insulin dependence and a restricted diet. However, the Veteran's diabetes is not manifested by a need for regulated activities. 2. The Veteran's service-connected erectile dysfunction, associated with diabetes mellitus, is productive of loss of erectile power, without physical deformity of the penis or any additional pathology. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, (West 2014); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2016). 2. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. § 4.115b, Diagnostic Codes 7520-7527 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings 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 (2016). 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 (2016); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2016); 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 (2016); 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 (2016). 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. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). A. Diabetes Mellitus, Type II The Veteran's diabetes mellitus, type II, has been assigned a 20 percent rating pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913 (diabetes mellitus). This 20 percent was granted effective May 8, 2001. Under Diagnostic Code 7913, a rating of 10 percent is assigned for diabetes mellitus that is managed by a restricted diet only. A rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned when the disability requires insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted when the diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is warranted if the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. 38 C.F.R. § 4.119. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Id. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). In other words, a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id. In addition, the Board observes that the rating criteria contained in Diagnostic Code 7913 are "successive." That is, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Each higher rating requires the elements of the lower rating: the 10 percent rating requires a restricted diet; the 20 percent rating requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent rating requires insulin, restricted diet, and regulation of activities; and so forth. Accordingly, under this and other diagnostic codes that are successive, consideration of 38 C.F.R. § 4.7 is not required. See Camacho, 21 Vet. App. at 366. In fact, the Federal Circuit has held that if disability rating criteria are written in the conjunctive and are successive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation," and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). As such, in the instant case, each separate element of insulin, restricted diet, and regulation of activities must be met for the Veteran to meet the criteria for a higher 40 percent rating. Middleton, 727 F.3d 1172. See also 38 C.F.R. § 4.119, Diagnostic Code 7913. In the instant appeal, the evidence clearly establishes that the Veteran's diabetes mellitus requires the use of insulin and regulation of his diet. See March 2017 Diabetes Mellitus DBQ, received March 1, 2017, at 1-3. Therefore, the Veteran need only show that a regulation of his occupational and recreational activities has been medically prescribed in order to qualify for a 40 percent rating under DC 7913. However, the Board finds there is no evidence that suggests the Veteran has been advised or prescribed to avoid strenuous activity by any medical professional. Undeniably, the claims file contains several statements from the Veteran that his physical abilities are limited by the confluence of his medical conditions, but the record does not contain any indication that any regulation of his activities has been specifically prescribed by a doctor because of his diabetes. Instead, the record reflects that the Veteran has been encouraged to increase his level of physical activity by participating in exercise in order to control his diabetes. See April 2014 Education Discharge Note, received December 13, 2016, at 13. See also December 2007 VA Pharmacy Medication Management Note (reflecting that the Veteran was "[r]eminded . . . on importance of . . . lifestyle modifications" for DM II Management); May 2016 VA Primary Care Outpatient Note (reflecting that the Veteran's VA treatment provider "emphasized diet and physical activity"); May 2016 Care Coordination Home Telehealth Follow-up Note (instructing the Veteran to "[m]ake sure that he is getting in physical activity 3-5 times a week for at least 30 minutes"); September 2015 Preventative Medicine Note Addenda (advising the Veteran to "[s]tay focused on [his] . . . exercise and [his diabetes] will continue to improve"). The Veteran was afforded four VA examinations in April 2008, October 2015, June 2016, and March 2017 in order to assess his diabetes mellitus. These examinations explicitly found that the Veteran did not require a regulation of his activities as part of the medical management of his diabetes mellitus. Furthermore, a review of the Veteran's other recent VA treatment records do not indicate he was advised to restrict his physical activities. Rather, these medical records show the Veteran was encouraged to engage in exercise. For example, in June 2016 an examiner noted that the Veteran asserted that he required a regulation of activities due to his diabetes. However, the examiner explained that although "the veteran regulates his activities due to a right knee condition for which he uses a brace and a cane[;] [h]e has documented uncontrolled diabetes mellitus with elevated HgbAlC, which is chronic high blood glucose, not hypoglycemia, in fact exercise would help his diabetes." See June 2016 Compensation and Pension Examination Report, received December 13, 2016, at 12. Per the Veteran's own statement, he reported that his specific health goal was to continue to exercise. See June 2016 Primary Care Physician Note, received December 13, 2016, at 25. Therefore, the Board finds there is neither medical nor lay evidence of regulation of activities due to his diabetes mellitus. Furthermore, the evidence of record establishes his diabetes mellitus does not result in episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider; or progressive loss of weight and strength, which are some of the criteria necessary to demonstrate ratings above 20 percent. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Although the evidence shows that the Veteran had a hypoglycemic reaction in December 2015 which resulted in an automobile accident and subsequent hospitalization, a review of the extensive medical evidence does not reflect any additional hospitalizations related to hypoglycemia. Additionally, his records are silent for any findings of ketoacidosis. Accordingly, it cannot be said that the Veteran's diabetes mellitus results in episodes of ketoacidosis or hypoglycemic reactions of such frequency as to require one or two hospitalizations per year. Additionally, there is no evidence that any episodes of ketoacidosis or hypoglycemic reactions require twice a month visits to a diabetic care provider. Moreover, as discussed in detail above, his diabetes does not require regulation of activities, which is required for the assignment of a higher rating under the relevant diagnostic criteria. See 38 C.F.R. § 4.119, Diagnostic Code 7913. See also Tatum, 23 Vet. App. at 156; Camacho, 21 Vet. App. at 366; Middleton, 727 F.3d at 1178. Accordingly, in light of the foregoing, the Board concludes that the preponderance of the evidence weighs against the criteria for assignment of a rating higher than 20 percent for the Veteran's diabetes at any point during the appellate period, as it is not manifested by regulation of activities in terms of a medical professional advising or prescribing avoidance of strenuous occupational and recreational activities in order to manage diabetes. See Tatum, 23 Vet. App. at 156; Middleton, 727 F.3d at 1178. See also Hart, 21 Vet. App. 505. See, too, 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). B. Erectile Dysfunction The Veteran is seeking an increase for his erectile dysfunction, which is currently in receipt of an initial noncompensable evaluation, effective from February 15, 2008 Preliminarily, the Board notes that the Schedule for Rating Disabilities does not provide a diagnostic code for rating erectile dysfunction in itself. See 38 C.F.R. § Part IV. Instead, such impairment is compensated by special monthly compensation (SMC) at the statutory rate for loss of use of a creative organ set forth in 38 U.S.C. § 1114(k). In this case, the Veteran is in receipt of special monthly compensation for loss of use of a creative organ. See January 2009 Notification Letter, received January 16, 2009, at 3 (reflecting that SMC for loss of use of a creative organ was granted effective February 15, 2008, the date service connection for erectile dysfunction was established). A compensable rating may only be assigned for erectile dysfunction if there is associated pathology that is compensable under the rating schedule. See, e.g., 38 C.F.R. § 4.115b, Diagnostic Codes 7520-7527 (2016). The Veteran's erectile dysfunction has been rated by analogy under 38 C.F.R. § 4115b, Diagnostic Code 7522 for penis, deformity, with loss of erectile power. See also 38 C.F.R. § 4.31 (2016) (reflecting that, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met). Under Diagnostic Code 7522, in order for the Veteran to receive a higher 20 percent rating for erectile dysfunction, physical deformity of the penis with loss of erectile power is required. 38 C.F.R. § 4.115b. Further, the VA Adjudication Procedure Manual confirms that two requirements must be met before a 20 percent evaluation can be assigned for deformity of the penis with loss of erectile power under Diagnostic Code 7522: (1) the deformity must be evident, and (2) the deformity must be accompanied by loss of erectile power. See M21-1, Part III, Subpart iv, Chapter 4, Section I, Paragraph 3.b. (Updated August 17, 2016). Simply stated, the condition is not compensable under Diagnostic Code 7522 in the absence of penile deformity. Upon review of the evidence, the Veteran does not meet the criteria for a 20 percent rating under Diagnostic Code 7522. A June 2016 VA opinion concluded that the Veteran's erectile dysfunction was due to his service-connected diabetes. Upon physical examination, the examiner found the penis was normal with no deformities or abnormalities. See June 2016 Male Reproductive DBQ, received June 28, 2016, at 2-3. In this case, the Veteran clearly has loss of erectile power. This fact is not in dispute. Regardless, in the present case, the medical evidence of record does not reveal any physical deformity of the Veteran's penis. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive 'and' in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive 'or' requirement must be met in order for an increased rating to be assigned). That is, the requirement under Diagnostic Code 7522 of deformity of the penis "with" loss of erectile power clearly means that both factors are required. Accordingly, there is no medical support for an initial compensable evaluation for the Veteran's erectile dysfunction under Diagnostic Code 7522. Neither is there any other penile pathology either reported by the Veteran or identified in the medical evidence of record. Accordingly, as there is no deformity or other pathology associated with the Veteran's ED, a compensable rating is not warranted. See 38 C.F.R. § 4.115b, DC's 7520-7527. In sum, the preponderance of the evidence weighs against an initial compensable rating for erectile dysfunction at any point during the pendency of this claim. Therefore, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 20 percent for diabetes mellitus is denied. An initial compensable rating for erectile dysfunction is denied. REMAND Unfortunately a remand is required concerning the issue of entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The issue of entitlement to TDIU is part and parcel of the evaluation of his service-connected diabetes mellitus, and thus is under the Board's jurisdiction. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). However, this issue has not yet been adjudicated by the AOJ in connection with this appeal. See Statement in Support of Claim (VA Form 21-4138), received on February 15, 2008 (initiating a claim for an increased rating for the service-connected diabetes mellitus). See also Rice, 22 Vet. App. at 454-55 (indicating that, because the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o)). Rather, as discussed in the introduction above, the Veteran's August 2016 formal claim for a TDIU has been adjudicated in conjunction with the Veteran's claims for increased ratings denied in an October 2015 rating decision. See August 9, 2017 SOC. Furthermore, also as discussed in the introduction above, the time period during which the Veteran may perfect his appeal of the August 9, 2017 SOC denying the Veteran's formal claim for a TDIU has not yet run. In addition to denying entitlement to a TDIU, that SOC also denied increased evaluations for the Veteran's service-connected peripheral neuropathy of the right lower extremity (currently in receipt of a 10 percent evaluation from February 15, 2008, 20 percent from October 8, 2015, 40 percent from June 28, 2016, and 20 percent since March 1, 2017); peripheral neuropathy of the left lower extremity (currently in receipt of a 10 percent evaluation from February 15, 2008, 20 percent from October 8, 2015, 40 percent from June 28, 2016, and 20 percent since March 1, 2017); peripheral neuropathy of the right upper extremity (currently in receipt of a 10 percent evaluation from October 8, 2015, 20 percent from June 28, 2016, and 10 percent since March 1, 2017); and peripheral neuropathy of the left upper extremity (currently in receipt of a 20 percent evaluation from October 8, 2015, forward). Additionally, the SOC denied entitlement to earlier effective dates for the grants of service connection for right and left upper extremity peripheral neuropathy. See August 9, 2017 SOC. Significantly, in his August 2016 TDIU application, the Veteran listed peripheral neuropathy among the service-connected disabilities that contributed to his claimed unemployability. See August 2016 Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Thus, as any potential grant of increased ratings and/or earlier effective dates for his service-connected peripheral neuropathy of the upper and lower extremities could result in a higher overall disability rating during portions of the appellate period and would thus affect the Veteran's potential entitlement to a TDIU under 38 C.F.R. § 4.16(a), the Board finds the claim for TDIU is not yet ripe for adjudication and must therefore defer consideration of this issue. See 38 C.F.R. § 4.16(a) (2016); Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (holding that two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue). See also Locklear v. Shinseki, 24 Vet. App. 311, 318, n. 2 (2011) (noting that the Veteran's award of a combined 100 percent schedular rating renders moot the issue of entitlement to a TDIU during that same period); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where a combined 100 percent schedular rating was awarded for the same period). But see Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a Veteran has a schedular total (100 percent) rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound rate")). Accordingly, the case is REMANDED for the following action: Following either receipt of a Substantive Appeal (VA Form 9 or equivalent) or after expiration of the allotted 60 day-period following the issuance of the August 9, 2017 Statement of the Case (SOC) if no Substantive Appeal is received, readjudicate the issue of entitlement to a TDIU for the entire appellate period applicable to the Veteran's claim for an increased rating for his diabetes mellitus type II. See Statement in Support of Claim (VA Form 21-4138), received on February 15, 2008 (initiating a claim for an increased rating for the service-connected diabetes mellitus). See also 38 U.S.C.A. § 5110 (West 2014) and 38 C.F.R. § 3.400(o) (2016) (providing that increased ratings shall become effective on the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date[;] otherwise, [the effective date shall be the] date of receipt of claim"); Rice v. Shinseki, 22 Vet. App. 447, 453, 454-55 (2009) (indicating that, because the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o)). If the benefits sought are not granted, the Veteran and his representative (if any) must be furnished a supplemental statement of the case (SSOC) 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 matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2015). ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs