Citation Nr: 1804177 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-05 097A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD) and as secondary to a back disability. 4. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disability. 5. Entitlement to service connection for asbestos exposure. 6. Entitlement to service connection for painful joints, to include as due to undiagnosed illness. 7. Entitlement to service connection for chronic fatigue syndrome, to include as due to undiagnosed illness. 8. Entitlement to service connection for a back disability. 9. Entitlement to service connection for a bilateral foot disability, to include pes planus, plantar fasciitis, and post-surgery residuals of the left foot. 10. Entitlement to an increased rating for bilateral hearing loss, currently evaluated as noncompensable from March 15, 2010, and as 10 percent disabling from January 31, 2013. 11. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: J. Michael Woods, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1993. These matters come before the Board of Veterans' Appeals (Board) from several rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO). Jurisdiction of this case currently rests with the RO in Montgomery, Alabama. Review of the claims file reveals a complicated procedural history. In the interest of clarity, the Board seeks to briefly address several matters at this time. First, a September 2010 rating decision awarded the Veteran an initial noncompensable disability rating for right ear hearing loss, effective March 15, 2010. The Veteran timely appealed this decision, which serves as the basis for the current appeal. However, during the pendency of the claim, a March 2015 rating decision was issued which awarded the Veteran a 10 percent disability rating for bilateral hearing loss, effective January 31, 2013. Subsequent codesheets identify bilateral hearing loss as the current service-connected disability. This, coupled with the results of a January 2013 VA examination, compel the Board to classify the service-connected disability as bilateral hearing loss at this time. See VA examination dated January 2013 (recording a Maryland CNC score of 92 for the left ear). The Veteran initially filed claims for specific foot and psychiatric conditions. In light of the evidence of record, these claims have since been combined and expanded as noted on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Additionally, the Veteran initially filed a claim for entitlement to service connection for a "shaving condition." This claim was denied in a September 2010 rating decision. However, a December 2014 rating decision awarded the Veteran a 10 percent initial rating for dermatitis, "claimed as rash on neck." At no time did VA subsequently continue to adjudicate the claim for a shaving condition, nor did the Veteran disagree with the initial rating or effective date as assigned for dermatitis. Thus, the Board finds that the Veteran's claim has been granted in full, such that this matter is not for consideration at this time. Finally, the Veteran's TDIU claim was explicitly denied in January 2012 and February 2013 rating decisions. However, the Veteran has continued to submit evidence pertaining to his unemployability as due to the claimed disabilities throughout the pendency of this appeal. Thus, the Board finds that the TDIU claim is properly for consideration at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal). The Veteran testified before a Decision Review Officer (DRO) in February 2015 regarding a portion of these claims. A copy of that hearing transcript has been associated with the record, and no subsequent hearing requests have been made. In a September 2015 lay statement, the Veteran raised the following issues: (1) Entitlement to a disability rating in excess of 10 percent for dermatitis; and (2) entitlement to a disability rating in excess of 30 percent for diarrhea. However, these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Veteran's back, foot, hearing loss, and TDIU claims are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a February 2015 written statement and prior to the promulgation of a decision in this appeal, the Veteran indicated his desire to withdraw the GERD and hypertension claims currently pending before the Board; there are no questions of fact or law remaining for the Board to consider. 2. The competent and probative evidence of record establishes that the Veteran's major depressive disorder with generalized anxiety disorder is causally related to his military service. 3. The competent and probative evidence of record establishes that the Veteran's obstructive sleep apnea is proximately due to and aggravated by his service-connected major depressive disorder with generalized anxiety disorder. 4. The Veteran does not have a current disability related to alleged in-service asbestos exposure. 5. The Veteran's joint pains and fatigue are attributable to known medical diagnoses. 6. The Veteran has not been diagnosed with chronic fatigue syndrome. 7. The most competent and probative evidence of record fails to demonstrate that the Veteran experienced an in-service injury or event related to his ankle or knee pain. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to service connection for GERD have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for the withdrawal of the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for service connection for major depressive disorder with generalized anxiety disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. The criteria for service connection for asbestos exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 6. The criteria for service connection for painful joints have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 7. The criteria for service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). REASONS AND BASES F§ OR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran has not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As such, the Board will now review the merits of the Veteran's claims. Withdrawals The Board first turns to the Veteran's GERD and hypertension claims. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104 (2012). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204 (2017). A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3) (2017). In a February 2015 written statement, the Veteran indicated his desire to withdraw the GERD and hypertension claims currently before the Board. Said withdrawals were requested prior to the promulgation of a Board decision on these matters. Accordingly, there are no allegations of error of fact or law with respect to these claims remaining for appellate consideration, and the Board does not have jurisdiction to further consider an appeal of these issues. Service Connection The Board now turns to the Veteran's service connection claims. Generally, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for any disease initially diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection, there must be competent evidence of: (1) The current existence of the disability for which service connection is being claimed; (2) a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) a nexus or connection between the disease, injury, or event in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (2004). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing secondary service connection requires evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Thus, the Board will examine the evidence of record against the criteria set forth above in assessing the merits of the Veteran's claims. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Psychiatric Disability The Board first turns to the Veteran's psychiatric claim. At the outset, the Board finds competent evidence of the claimed disability. In a November 2017 disability benefits questionnaire (DBQ), the Veteran was diagnosed with major depressive disorder, recurrent, severe, and generalized anxiety disorder. Said diagnoses are corroborated by the additional evidence of record, to include extensive VA and private treatment records. See, e.g., DBQ dated September 2013 (offering a secondary diagnosis of major depressive disorder). Thus, the Board finds that the first Shedden element has been met. Further, the Board finds competent and credible evidence of an in-service incident. The Veteran has testified that he was manning a phone line during service when it broke, which jerked the Veteran and threw him onto the deck. The Veteran suffered a back injury as a result, and his psychiatric symptoms onset immediately thereafter. See lay statement dated October 2010. Generally, a veteran is competent to report that which he perceives through the use of his senses, including symptoms capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Further, the Veteran's testimony is corroborated by the additional evidence of record, to include multiple buddy statements which confirm that the Veteran injured his back during service and presented with related psychiatric symptoms at that time. See buddy statements dated September 2010, July 2017, and November 2017. Further, the Veteran's testimony is consistent and well-documented throughout the record. Taken in combination, the Board finds that the above stand as competent and credible evidence of the in-service event, such that the second Shedden element has been met. Finally, the Board finds competent evidence of a nexus between the Veteran's in-service injury and his current psychiatric disability. In this regard, the Veteran underwent comprehensive private evaluation in November 2017. At that time, the physician opined that the Veteran's psychiatric disability more likely than not began in military service and continued uninterrupted to the present. In support of this contention, the physician engaged a thorough review of the Veteran's claims file; provided a detailed analysis of his medical history, to include the nature and onset of his symptoms; and offered significant scholarly evidence in support of this contention. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Thus, in the presence of this probative opinion and in the absence of a negative nexus opinion from the record, the Board finds that the third and final Shedden element has been met. Accordingly, entitlement to service connection is granted. 38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Sleep Apnea Next, the Veteran contends that his sleep apnea is causally related to his psychiatric disability. In this regard, the Board first finds competent evidence of the claimed disability. The Veteran was first diagnosed with obstructive sleep apnea following private examination in June 2010. Said diagnosis is corroborated by the additional evidence of record, to include a November 2017 DBQ and private and VA treatment records. Further, the record contains competent and credible evidence of a causal link between the Veteran's psychiatric condition and his sleep apnea. Following November 2017 examination, a private physician opined that the Veteran's major depressive disorder "has aided in the development of and permanently aggravates his obstructive sleep apnea." In support of this contention, the physician undertook a notable review of the Veteran's medical history pertaining to his psychiatric disability and sleep apnea, to include the relationship between his pertinent symptoms. Additionally, the physician reported the Veteran's anxiety relating to the ongoing use of a CPAP machine to assist with managing his sleep apnea. Again, the Board affords significant probative value to this opinion, which assesses the Veteran's pertinent symptomatologies and the manner in which they interact with one another. This, coupled with the absence of a negative nexus opinion from the record, compels the Board to find that service connection is warranted with regard to this claim. 38 C.F.R. § 3.102 (2017); see also 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 53-56. Asbestos Exposure The Board now turns to the Veteran's claim for entitlement to service connection for asbestos exposure. In this regard, the Board notes that an award of service connection is predicated upon the existence of a current disability and not the mere occurrence of an event, such as asbestos exposure. Although there exists no statutes or regulations pertaining specifically to claims for service connection for asbestos exposure, the VA Adjudication Procedures Manual provides certain guidance regarding such claims. Specifically, the Manual holds that entitlement to compensation based on asbestos exposure may be established upon evidence of (1) in-service asbestos exposure; and (2) a diagnosed disability that has been associated with in-service asbestos exposure. See VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, § I.3.a Thus, a claim is not considered to be substantially complete if a veteran alleges asbestos exposure but fails to claim a specific disability. Id. at § I.3.b. Regrettably, such are the circumstances of this case. Here, the Veteran requests service connection based solely upon the purported in-service exposure to asbestos. However, the Veteran has failed to identify any specific disability arising from the alleged exposure, and review of the claims file does not indicate the existence of any such condition. Although such information was requested from the Veteran in December 2015, no response has been received to date. Thus in the total absence of evidence speaking to a current disability, the Board is precluded from awarding service connection upon asbestos exposure alone, and the claim must be denied. See also Dyment v. West, 13 Vet. App. 141, 145 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000 (holding that the M21-1 guidelines do not constitute substantive rules, and there is no presumption that a veteran was exposed to asbestos during service). Painful Joints and Chronic Fatigue Syndrome Finally, the Board will address the Veteran's painful joints and chronic fatigue syndrome claims simultaneously. At the outset, the Board notes that the Veteran has verified service in the Southwest Asia theater of operations during the Persian Gulf War. See Certificate of Release or Discharge from Active Duty (DD-214) (indicating Veteran's receipt of the Southwest Asia Service Medal and Kuwait Liberation Medal). Presumptive service connection is available to such veterans who demonstrate certain symptoms, to include joint pain and fatigue, which are not attributable to diagnosed illnesses. 38 C.F.R. § 3.317(b) (2017). Here, the Veteran has endorsed the current existence of these symptoms. See, e.g., VA examination dated November 2014 (reporting history of debilitating fatigue, migratory joint pains, and sleep disturbances); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the evidence of record clearly attributes the Veteran's symptoms to specific medical diagnoses. During November 2014 VA examination, the examiner concluded that the Veteran did not present with symptoms that represented an undiagnosed illness or a diagnosed medically unexplained chronic multisymptom illness. In doing so, the examiner noted that the Veteran's joint pain occurred in his feet, knees, ankle, and back. The evidence of record related said pain to specific medical diagnoses, to include plantar fasciitis, pes planus, degenerative joint disease, and additional degenerative changes. Thus, the Veteran presented with diagnosed illnesses, such that the symptoms were not representative of an undiagnosed illness of the Gulf War. Additional evidence of record indicates that the Veteran's fatigue is a symptom of his diagnosed sleep apnea and psychiatric conditions. See private treatment records dated June 2010; see also VA examination dated September 2013 (noting sleep impairment as a symptom of the Veteran's psychiatric condition). Thus, the Board finds that the Veteran's joint pain and chronic fatigue are manifestations of diagnosed illnesses, such that presumptive service connection is not available in this case. Nonetheless, the Veteran is not precluded from establishing direct service connection with regard to these claims. However, the Veteran has not been diagnosed with chronic fatigue syndrome at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Although the Veteran's reports of ongoing fatigue are well-documented throughout the record, a November 2014 VA examiner concluded that the Veteran had not been diagnosed with the claimed condition at any time. In support of this contention, the examiner noted her inability to find documentation in the record in support of the Veteran's claim. The Board's own review of the record supports this finding. Thus in the absence of evidence speaking to a current disability, the claim may not succeed. Further, the Veteran submitted a generic claim for "painful joints," as occurring in his feet, back, ankle, and knees. The Board observes that the Veteran's back and foot claims are remanded herein, such that the existence of these symptoms will be contemplated at a later date. As indicated by the November 2014 VA examiner, the Veteran's ankle and knee pain are attributable to ankle sprain and knee strain. The Veteran has indicated that these pains onset during military service. However, the Veteran's entrance and exit examinations are silent for reports of related conditions, and service treatment records (STRs) spanning the entirety of the Veteran's service notes no diagnoses or treatment of ankle or knee disabilities. Instead, the record establishes that the Veteran first sought pertinent treatment in approximately 2010, nearly two decades following his exit from service. Thus, the Board does not find competent evidence of an in-service event sufficient to warrant a VA examination at this time, or upon which to grant the claim. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the Veteran's claims for entitlement to service connection for painful joints and chronic fatigue syndrome are hereby denied. ORDER The appeal seeking entitlement to service connection for GERD is dismissed. The appeal seeking entitlement to service connection for hypertension is dismissed. Entitlement to service connection for major depressive disorder with generalized anxiety disorder is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for asbestos exposure is denied. Entitlement to service connection for painful joints is denied. Entitlement to service connection for chronic fatigue syndrome is denied. REMAND Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's remaining claims. Private Treatment Records The Veteran has identified several private treatment providers for his claimed back disability. Although many of said records were provided to VA via the Social Security Administration (SSA), records from provider R. D. have not yet been obtained. See January 2012 authorization form. As these records are likely relevant to the Veteran's claim, all reasonable efforts must now be made to obtain them. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(c) (2017). VA Examinations The Board further finds that VA examinations are warranted for the Veteran's foot and hearing loss claims. First, the Veteran's feet were assessed during VA examinations in August 2010 and November 2014. Typically, a veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence that (a) the disease or injury existed prior to service, and (b) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Here, the evidence of record establishes that the Veteran underwent pre-service foot surgery as due to an infection. Thus, a new examination is needed to clarify the Veteran's pre-service medical history and to assess whether the medical evidence of record presents clear and unmistakable evidence that the Veteran's foot disability existed prior to service, and was not aggravated by service. Further, the Board notes that the Veteran's bilateral hearing loss was most recently assessed during VA examination in January 2013. As five years have since passed, the Board finds that a new examination is now warranted such that the current severity of the Veteran's disability may be assessed. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (holding VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Intertwined Issues Determination of the above claims will directly impact the Veteran's TDIU claim, as well, such that the issues are all inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (finding two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Holland v. Brown, 6 Vet. App. 443, 445-46 (1994). As such, remand of the above-mentioned claims necessitates remand of the TDIU claim, as well, such that the full scope of the Veteran's service-connected disabilities may be considered in analyzing his entitlement to a TDIU. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify all private providers of medical treatment for his claimed back disability, to include Dr. R.D. Request that the Veteran provide authorization for release of all identified private medical records to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claims will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claims may be readjudicated. 2. Provide the Veteran with VA examinations to assess the etiology/severity of the claimed foot and bilateral hearing loss disabilities. The claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. Each examiner should elicit a complete history from the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. a. The foot examiner must assess the current nature of any bilateral foot disability and then offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the disability existed prior to service. The examiner must provide a complete rationale for any opinion offered. If the examiner finds that the Veteran's foot disability clearly and unmistakably existed prior to service, then the examiner is requested to offer an opinion as to whether it is clear and unmistakable (obvious and manifest) that the pre-existing disability was not aggravated by service spanning August 1989 to August 1993. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? If the examiner finds that a foot disability did not clearly and unmistakably exist prior to service, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's foot disability began in service, was caused by service, or is otherwise related to service spanning August 1989 to August 1993. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. b. The hearing loss examiner should perform all necessary diagnostic tests, including audiometric studies and Maryland CNC speech discrimination testing, and report all clinical manifestations in detail. Associate a copy of the examination report with the claims file. 3. If appropriate, refer the claim to VA's Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b) (2017). 4. Thereafter, readjudicate the remaining claims on appeal. If the benefits sought remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond. Then, return the appeal to the Board. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs