Citation Nr: 1817201 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 11-04 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) and anxiety disorder. 2. Entitlement to an evaluation in excess of 20 percent for hepatitis C. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John P. Dorrity, Agent WITNESSES AT HEARING ON APPEAL Veteran and daughter ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2009 (hepatitis C) and May 2009 (psychiatric disorder) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. A Notice of Disagreement was submitted in April 2010; a Statement of the Case was issued in January 2011; and a VA Form 9 was received in February 2011. The Veteran was afforded a hearing in June 2011 before the undersigned Veterans Law Judge. The hearing transcripts are associated with the record. By way of brief procedural history, these matters were previously before the Board in August 2013, at which time the Board restored a 20 percent disability rating for hepatitis C, granted service connection for PTSD and anxiety disorder, and remanded the issues of entitlement to an evaluation in excess of 20 percent for hepatitis C, entitlement to service connection for bilateral hearing loss, entitlement to service connection for tinnitus, and entitlement to service connection for an acquired psychiatric disorder, other than PTSD and anxiety disorder, for further development of the record. The Board also found that the issue of entitlement to a TDIU rating was raised in connection with the hepatitis C claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the issue for initial adjudication. See also December 2016 VA Form 21-8940 (Veteran asserts he is unable to obtain gainful employment due to his service-connected PTSD with anxiety disorder). The TDIU claim was subsequently denied in a November 2017 SSOC and December 2017 rating decision. The Board notes that the RO granted service connection for bilateral hearing loss and tinnitus in a May 2017 rating decision. These issues have been granted in full, and thus, they are no longer before the Board for appellate consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining issues have been returned to the Board for appellate review. The issue of entitlement to a TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service-connected hepatitis C has been consistently manifested by daily fatigue, with additional symptoms of nausea and arthralgia; there is no evidence of anorexia, weight loss attributable to hepatitis C, hepatomegaly, malaise, or near-constant debilitating symptoms, or credible evidence of four or more weeks of incapacitating episodes. 2. Service connection is currently in effect for PTSD with anxiety disorder. 3. The preponderance of the evidence shows that an acquired psychiatric disorder other than PTSD with anxiety disorder, to include adjustment disorder with depressed mood, is not related to service, nor was it caused or aggravated by service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for hepatitis C have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7354 (2017). 2. The criteria for service connection for an acquired psychiatric disability other than PTSD with anxiety disorder, to include adjustment disorder with depressed mood, are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to 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). Notably, the RO has obtained the Veteran's service treatment records (STRs), VA inpatient and outpatient treatment records, and Social Security Administration (SSA). The Veteran was also afforded VA examinations in connection with his claims. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4). As will be discussed below, these VA examinations, findings, and opinions were thorough, supported by explanations, based on a review of the claims folder, and supported by clinical evidence of record. The VA examinations also considered the Veteran's lay assertions. As such, there is no basis for any further VA examination or opinion as to the issues on appeal. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2014). Hence, there is no error or issue that precludes the Board from addressing the merits of the issues below. I. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). The Board notes that psychoses are listed among the "chronic diseases" under 38 C.F.R. § 3.309 (a). However, none of the diagnoses of record are classified as psychoses. See 38 C.F.R. § 3.384 (2017). Thus, the "chronic disease" rules are not for application here. See 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran claims entitlement to service connection for an acquired psychiatric disorder other than PTSD with anxiety disorder, for which he is already service-connected. As explained below, he has been diagnosed with adjustment disorder with depressed mood; the Veteran has advanced no specific assertions or argument concerning the onset or continuity of symptoms associated with this disability. Service treatment records are silent for complaints, treatment, or diagnoses of a psychiatric disorder. Significantly, the July 1971 Separation Report of Medical History and Report of Medical Examination noted a normal psychiatric clinical evaluation and the Veteran endorsed no psychiatric symptoms at that time. Following service, the first documented mental health treatment/complaint is not shown until 2009, nearly 38 years after separation from active duty service. As to the presence of a current disability, the Veteran is already service-connected for PTSD with anxiety disorder. There is additional evidence reflecting that he has been, at various times, diagnosed with depression since approximately 2009. See VA Treatment Records. However, this additional disorder was not observed at VA psychological examinations conducted in September 2010, February 2016, and March 2017. In order to clarify the nature and etiology of the Veteran's psychiatric symptoms, the Veteran underwent a VA psychiatric examination in March 2017. After a thorough psychiatric evaluation, the examiner confirmed a PTSD diagnosis, and provided a new diagnosis of adjustment disorder with depressed mood. The March 2017 examiner expressly found that a diagnosis (or separate diagnosis) for any other psychiatric disorder, to include depression and/or anxiety, was not warranted. In so finding, the examiner specifically addressed the 2009 diagnoses of depression (as requested by the Board in its remand instructions), and noted that the symptoms described at those times did not meet the diagnostic criteria for major depressive disorder. The examiner then opined that the currently diagnosed adjustment disorder with depressed mood was less likely than not related to service; the disorder, she opined, was instead related to his medical condition, specifically, cancer. Notably, the Veteran's esophageal cancer is not a service-connected disability. In this same vein, the VA examiner also opined that the Veteran's adjustment disorder with depressed mood was less likely than not proximately due to or aggravated by his service-connected PTSD disorder. Rather, it was a separate and distinct diagnosis. Although the Board is aware that depression has been previously diagnosed, greater probative value is placed on the conclusions of the March 2017 VA examiner's determination that a diagnosis for this disorder is not warranted. The Federal Circuit has recognized the unique probative value of opinions provided by VA psychiatric examiners in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). The Board also finds the March 2017 VA examiner's opinion concerning the etiology of the diagnosed adjustment disorder with depressed mood to be highly probative. Indeed, the opinion was rendered after a thorough review of the Veteran's service treatment records, his mental health history, and the Veteran's own statements, and it was based on sound medical rationale - namely, that the disorder was related to non-service connected cancer, and not military service. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Notably, there are no medical opinions of record to the contrary concerning the etiology of his adjustment disorder with depressed mood. In short, the most competent and probative evidence of record demonstrates that the Veteran's diagnosed adjustment disorder with depressed mood is neither related to service, nor to his service-connected PTSD. There is no evidence that such disorder occurred in-service or shortly after service; in fact, the medical evidence indicates it first manifested nearly 4 decades years after service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). VA treatment records reflect that the Veteran first reported psychiatric symptoms in 2009; adjustment disorder with depressed mood was not diagnosed until 2017, at which time the VA examiner unequivocally related it to the Veteran's cancer. In sum, the weight of the competent and credible evidence record weighs against the claim for service connection for an acquired psychiatric condition other than PTSD with anxiety disorder, to include adjustment disorder with depressed mood. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107 (b); Gilbert, supra. II. Increased Rating, Hepatitis C A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In addition, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hepatitis C is rated under Diagnostic Code 7354. Under Diagnostic Code 7354, a 100 percent rating is warranted for near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). 38 C.F.R. § 4.114, Diagnostic Code 7354. A 60 percent rating is warranted for daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. Id. A 40 percent rating is warranted for daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. 38 C.F.R. § 4.114, Diagnostic Code 7354. A 20 percent rating is warranted for daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period. Id. Note (1) indicates that sequelae, such as cirrhosis or malignancy of the liver, are to be evaluated under an appropriate diagnostic code, but should not be based on the same signs and symptoms as the basis for evaluation under Diagnostic Code 7354. Note (2) indicates that, for purposes of evaluating conditions under Diagnostic Code 7354, 'incapacitating episode' means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. The term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer. The term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. In addition, the term "inability to gain weight" means that there has been substantial weight loss with an inability to regain it despite appropriate therapy, and "baseline weight" means the average weight for the two-year period preceding onset of the disease. 38 C.F.R. § 4.112. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Factual Background The Veteran submitted the current claim for an increased rating February 2009. He underwent a VA examination in March 2009, at which time he denied abdominal, abnormal appetite, incapacitating episodes, varices, emesis, and hematemesis. He endorsed feeling fatigued and reported nausea with his medication. He was last treated with Pegasus and ribavirin (2006). He reported that after Interferon treatment in 2003, his weight dropped from 190 pounds to 140. His current weight was 192.9 pounds and stable. His appetite was normal. His liver enzymes were normal. There were no incapacitating episodes. The pertinent diagnosis was hepatitis C infection, with no functional impairment and undetectable viral load. The Veteran underwent another VA examination in September 2010. He endorsed chronic nausea and arthralgias of the hands/knees. There was no emesis. His weight was stable (184 pounds); he was able to walk 1/4 of a mile a day without difficulty. There was no shortness of breath, chest pain, diarrhea, abdominal pain, constipation, rectal bleeding or melena. There were no incapacitating episodes. The Veteran underwent a Hepatitis Disability Benefits Questionnaire (DBQ) in March 2017. Current signs and symptoms attributable to hepatitis C included daily fatigue. There were no incapacitating episodes. No other pertinent symptoms relating to hepatitis C were noted. The examiner noted that the Veteran was currently undergoing chemotherapy for esophageal cancer and that his fatigue could also be attributable to his cancer treatment. The Veteran was 160 pounds. His hepatitis C condition was in remission. VA treatment records dated from 2009 to 2017 reflect occasional complaints of fatigue, arthralgia, nausea (associated with heartburn), and a low viral load. These records also reflect that the Veteran was diagnosed with esophageal cancer in October 2016, and that treatment for this condition, which included chemotherapy and radiation, had resulted in nausea, vomiting, and weight loss. A January 2017 VA treatment record reflects that the Veteran's esophageal cancer had metastasized to his liver. Analysis The Veteran seeks a rating in excess of 20 percent for his service-connected hepatitis C disability. He contends that he experiences symptoms such as nausea and arthralgia which warrant a higher rating. See, e.g., Board Hearing Transcript. In this case, the medical and lay evidence do not more nearly approximate the criteria for the next-higher ratings (i.e., 40 percent, 60 percent, or 100 percent) for hepatitis C under Diagnostic Code 7354. Throughout the appeal period, the Veteran's hepatitis C symptoms have been primarily manifested by occasional to daily fatigue, occasional to chronic nausea, and arthralgia. The criteria for a 40 or 60 percent rating for hepatitis C require anorexia, weight loss (either minor or substantial, depending on the rating indicated), malaise and hepatomegaly. Inasmuch as the Veteran's treatment records and 2009, 2010, and 2017 VA examinations are negative for such, and the Veteran does not contend otherwise, and there is no evidence of incapacitating episodes due to the Veteran's hepatitis C (let alone for at least four weeks), the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's service-connected hepatitis C. In so finding, the Board notes that the Veteran's weight has remained largely stable throughout the course of the appeal period; this is confirmed by the 2009 and 2010 VA examination reports, as well as VA treatment records dated from 2009 to 2016. However, beginning in late 2016, the record reflects substantial weight loss, along with symptoms of nausea and vomiting. As noted, the Veteran was diagnosed with esophageal cancer in October 2016; his course of treatment included radiation and chemotherapy. VA oncology records show that the Veteran's weight loss, nausea, and vomiting during this period are specifically attributable to his cancer treatment and not to his hepatitis C. Accordingly, a higher rating based on these symptoms is not appropriate here. The Board also acknowledges that the Veteran was diagnosed with metastatic liver cancer in January 2017. VA and private pathology reports expressly demonstrate that such cancer metastasized from his esophageal tumor. In other words, the Veteran's liver cancer is not a sequela of his hepatitis C; therefore, it is not subject to a separate rating pursuant to Note 1 of Diagnostic Code 7354. The Veteran is fully competent to report the symptoms of his disability, and the rating criteria for hepatitis C clearly reflect that they are dependent on the subjective reports of the claimant to a significant degree. Hence, the Board acknowledges the Veteran's lay statements (i.e., his complaints of nausea and arthralgia) and has applied them to the rating criteria. Nonetheless, even the Veteran's own statements, and the objective findings noted in the various VA examination reports, show that his hepatitis C has more nearly approximated the currently assigned 20 percent rating for the entirety of the appeal period. 38 C.F.R. §§ 4.10, 4.114, DC 7354 (2017). In short, the Veteran's service-connected hepatitis C has been consistently manifested by daily fatigue, with additional symptoms of nausea and arthralgia; there is no evidence of anorexia, weight loss attributable to hepatitis C, hepatomegaly, malaise, or near-constant debilitating symptoms, or credible evidence of four or more weeks of incapacitating episodes. Based on the foregoing, the Board finds that the criteria for a rating in excess of 20 percent for service-connected hepatitis C have not been met. In reaching this determination, the Board has considered the benefit of the doubt doctrine, where applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to service connection for adjustment disorder with depressed mood is denied. Entitlement to a rating in excess of 20 percent for service-connected hepatitis C is denied. REMAND TDIU The Veteran is also seeking entitlement to a TDIU. He reports that he is unable to work due to his service-connected disabilities. Specifically, in hearing testimony and statements throughout the record, the Veteran indicated that he was no longer employed as a result of symptoms associated with his service-connected hepatitis C, and in particular, arthralgias. In more recent communications, the Veteran indicated that he was also unable to work as a result of his service-connected PTSD with anxiety disorder. See December 2016 VA Form 21-8940. As noted, this TDIU claim stems, in part, from the Veteran's February 2009 claim for an increased rating for hepatitis C. See Rice v. Shinseki, 22 Vet. App. 447 (2009). From February 23, 2009, to January 1, 2016, service connection was in effect for PTSD with anxiety disorder, rated as 50 percent disabling; anxiety disorder associated with hepatitis C, rated as 50 percent disabling; hepatitis C, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. His total combined rating was 80 percent. See 38 C.F.R. § 4.25. As the Veteran had at least one disability is ratable at 40 percent or more, and a combined rating of 70 percent or more, the Veteran's service-connected disabilities satisfied the schedular criteria for a TDIU. 38 C.F.R. § 4.16 (a). However, in an October 2015 rating decision, the RO severed the Veteran's separate disability rating for his anxiety disorder, effective January 1, 2016. As such, as of January 1, 2016, the Veteran's combined rating was 60 percent and he did not meet the scheduler criteria for a TDIU. In May 2016, the RO increased the disability rating for PTSD with anxiety disorder to 70 percent, effective January 26, 2016. This resulted in a combined rating of 80 percent. As the Veteran has at least one disability ratable at 40 percent or more, and a combined rating of 70 percent or more, the Veteran's service-connected disabilities satisfy the schedular criteria for a TDIU since January 26, 2016. 38 C.F.R. § 4.16 (a). In sum, the Veteran met the scheduler criteria for a TDIU from February 23, 2009, to January 1, 2016, and from January 26, 2016, to the present. However, he did not meet the scheduler criteria from January 1, 2016, to January 26, 2016. Thus, as the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU during this period, the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer the matter to the RO to consider whether the requirements pursuant to 38 C.F.R. § 4.16(b), for referral to the Director, Compensation and Pension (C&P) Service for consideration of an extraschedular TDIU rating, have been invoked. With respect to the periods from February 23, 2009, to January 1, 2016, and from January 26, 2016, to the present, the remaining inquiry is whether such disabilities render the Veteran unable to secure or follow a substantially gainful occupation. Factors such as employment history, as well as educational and vocational attainments, are for consideration. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. The record reflects that the Veteran was last employed in 2008 as a forklift operator. He has a high school education with no other education or training. Records obtained from the Social Security Administration (SSA) show that the Veteran applied for SSA Disability benefits in January 2009; he was awarded such benefits effective January 2008 on account of osteoarthritis and allied disorders (primary diagnosis), and hepatitis C and tobacco abuse (secondary diagnoses). VA treatment records dated from 2009 to 2016 reflect that the Veteran used a cane for walking, could not stand, walk, or sit for prolonged periods of time and was unable to lift objects due to pain and stiffness in the knees and shoulders. Diagnoses included arthralgia ("possibly" related to hepatitis C, see, e.g., April 2013 VA Treatment Note), rotator cuff tears, and degenerative joint disease of the knees. A March 2009 VA Joints examination reflects that the Veteran reported he was unable to do his occupational duties due to his knee pain. An examiner concluded that his bilateral osteoarthritis of the knees was not secondary to his service-connected hepatitis C. A May 2010 VA Audio examination indicated that the Veteran's service-connected hearing loss had significant effects on his occupation. A September 2010 VA PTSD examiner opined that the Veteran's PTSD symptoms would not impact his ability to work. In a February 2016 VA PTSD examination report, the Veteran reported that he had been unable to maintain employment due to his knee condition; however, the examiner noted that the Veteran had "marked" limitation in functional areas related to employment (activities of daily living; social functioning; and concentration, persistence or pace) due to his service-connected PTSD. The March 2017 VA/DBQ examiner stated that the Veteran's hepatitis impacted his ability to work and that he would be better suited for sedentary employment. After reviewing all the evidence, both lay and medical, the Board finds that there is insufficient evidence to determine whether the service-connected disabilities alone are severe enough to warrant a TDIU rating. For these reasons, the Board finds that a VA examination may help determine whether the Veteran's service-connected disabilities preclude substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran's electronic record to an appropriate clinician to provide an opinion regarding the impact of the Veteran's service-connected disabilities on his employability for the periods from (i) February 23, 2009, to January 1, 2016 (note: service connected disabilities included PTSD with anxiety disorder, rated as 50 percent disabling; anxiety disorder associated with hepatitis C, rated as 50 percent disabling; hepatitis C, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling) and from (ii) January 26, 2016, to the present (note: service connected disabilities include PTSD with anxiety disorder, rated as 70 percent disabling; hepatitis C, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling). The electronic record and a copy of this remand must be made available to the reviewer for review, and the reviewer must specifically acknowledge receipt and review of these materials in any reports generated. For the periods from February 23, 2009, to January 1, 2016, and from January 26, 2016, to the present, the reviewer is asked to address the following: The reviewer should describe the functional effects that the Veteran's service-connected disabilities, alone or in combination, had/have on his activities of daily living, including whether the Veterasn is capable (or incapable) of performing the the mental and physical acts required for employment in his usual occupation(s). In particular, the reviewer is asked to describe what types of activies would be limited because of the service-connected disabilities, alone or in combination, and what types of activities would not be limited (if any), and whether any limitation on activities is likely permanent, or would rendered the Veteran incapable of performing the physical and mental acts required for employment in his usual occupation(s). Complete, clearly-stated rationale for the conclusion reached must be provided. 2. For the period from January 1, 2016, to January 26, 2016, the AOJ is asked to consider whether the requirements pursuant to 38 C.F.R. § 4.16(b), for referral to the Under Secretary for Benefits or the Director of Compensation and Service for consideration of assignment of an extraschedular TDIU rating, have been invoked. If so, the AOJ should refer the matter to the Director for extraschedular consideration. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the TDIU issue on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs