Citation Nr: 1821344 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 15-12 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to October 28, 2013, for peripheral neuropathy of the right lower extremity. 2. Entitlement to a rating in excess of 10 percent prior to October 28, 2013, for peripheral neuropathy of the left lower extremity. 3. Entitlement to a compensable rating prior to May 2, 2011, and in excess of 10 percent for the period from May 2, 2011, to October 28, 2013, for peripheral neuropathy of the right upper extremity. 4. Entitlement to a compensable rating prior to May 2, 2011, and in excess of 10 percent for the period from May 2, 2011, to October 28, 2013, for peripheral neuropathy of the left upper extremity. 5. Entitlement to a total rating by reason of individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Charles D. Romo, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1950 to October 1954 and from November 1954 to November 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction is currently with the VA RO in Atlanta, Georgia. In February 2018, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The November 2012 rating decision granting service connection for peripheral neuropathy of right lower extremity with a disability rating of 10 percent; peripheral neuropathy of left lower extremity with a disability rating of 10 percent, peripheral neuropathy of right upper extremity with a non-compensable disability rating from the date of claim to May 2, 2011, and a 10 percent rating thereafter, and peripheral neuropathy of left upper extremity with a non-compensable disability rating from the date of claim to May 2, 2011, and a 10 percent rating thereafter did not become final because new and material evidence, specifically private treatment records from Dr. S.K.G. dated from May 2012 to October 2012 indicating accentuation or worsening of peripheral neuropathy symptoms, was received within one year of the November 2012 rating decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Because the November 2012 rating decision granting service connection was not final, the Board may consider the entire period for which the Veteran is service-connected. The Veteran was service-connected effective October 7, 2010. The RO has addressed the increased rating issue on appeal as one for an earlier effective date; however, the issues are actually entitlement to a rating in excess of 10 percent prior to October 28, 2013, for peripheral neuropathy of the right lower extremity; entitlement to a rating in excess of 10 percent prior to October 28, 2013, for peripheral neuropathy of the left lower extremity; entitlement to a compensable rating prior to May 2, 2011, and in excess of 10 percent for the period from May 2, 2011, to October 28, 2013, for peripheral neuropathy of the right upper extremity; and entitlement to a compensable rating prior to May 2, 2011, and in excess of 10 percent for the period from May 2, 2011, to October 28, 2013, for peripheral neuropathy of the left upper extremity. As noted above, additional treatment records relevant to the increased rating claim were received in November 2012, and the November 2012 rating decision did not become final. See 38 C.F.R. § 3.156(b). Although the question of when entitlement arose for the increased ratings for peripheral neuropathy could be addressed as either an "effective date" or "increased rating" issues, adjudicating the issues as an increased rating is potentially more favorable to the Veteran. The Board finds that there is no prejudice to the Veteran in now adjudicating the issue as an increased rating appeal rather than an effective date appeal because the February 2014 rating decision notified the Veteran of the rating criteria for peripheral neuropathy. The Board notes that the issue of the Veteran's entitlement to a total disability rating based on individual unemployability (TDIU) is also on appeal because the Veteran has alleged that his disabilities interfered with his employment. Rice v. Shinseki, 22 Vet. App. 447 (2009) (if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted). The Board has therefore added a TDIU claim to the title page to reflect the Board's jurisdiction over this matter. Further development is needed to properly adjudicate the TDIU claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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. Throughout the appeal period, the evidence is in equipoise as to whether the Veteran's peripheral neuropathy of the right lower extremity was manifest by symptoms that were moderately severe. 2. Throughout the appeal period, the evidence is in equipoise as to whether the Veteran's peripheral neuropathy of the left lower extremity was manifest by symptoms that were moderately severe. 3. Prior to May 2, 2011, the evidence is in equipoise as to whether the Veteran's peripheral neuropathy of the right upper extremity was manifest by symptoms that were mild. 4. Since May 2, 2011, the evidence is in equipoise as to whether the Veterans peripheral neuropathy of the right upper extremity was manifest by symptoms that were severe. 5. Prior to May 2, 2011, the evidence is in equipoise as to whether the Veteran's peripheral neuropathy of the right upper extremity was manifest by symptoms that were mild. 6. From May 2, 2011, to October 28, 2013, the Veteran's peripheral neuropathy of the left upper extremity was not manifested by symptoms greater than mild. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the peripheral neuropathy of the right lower extremity met the criteria for a 40 percent disability rating throughout the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the peripheral neuropathy of the left lower extremity met the criteria for a 40 percent disability rating throughout the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the peripheral neuropathy of the right upper extremity met the criteria for a 10 percent disability rating from October 7, 2010, to May 2, 2011, and a 50 percent disability rating thereafter. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8515 (2017). 4. Resolving reasonable doubt in the Veteran's favor, the peripheral neuropathy of the left upper extremity met the criteria for a 10 percent disability rating from October 7, 2010, to May 2, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8515 (2017). 5. The criteria for an increased rating in excess of 10 percent for peripheral neuropathy of the left upper extremity are not met or approximated for the period from May 2, 2011 to October 28, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8515 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation for distinct periods of time, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hence, the following analysis is undertaken with the possibility that staged rating may be warranted. The Veteran seeks entitlement to an effective date prior to October 28, 2013, for the grant of an evaluation of 50 percent for peripheral neuropathy of the right upper extremity, 40 percent for peripheral neuropathy of the right lower extremity, 20 percent for peripheral neuropathy of the left lower extremity, and a non-compensable disability rating for peripheral neuropathy of the left upper extremity. The Veteran was afforded a VA examination in December 2010. The Veteran reported numbness and tingling to the bilateral hands, fingertips, and feet up to the knees. The examiner noted that the Veteran was scheduled for studies to follow up for his low back and had also had cervical spine surgery. On physical examination, the extremities were negative for pedal edema. He was positive for peripheral pulses, hair on the toes, onychomycosis on all toenails and dry, scaly skin on the soles of the feet. His reflexes were one to two plus and symmetrical. Vibratory sensation was normal in the upper extremities. There was no sensation for vibration in bilateral great toes, decreased medial malleoli bilaterally, and felt on bilateral knees. Monofilament testing was decreased in the L4-5 area of both lower extremities. The examiner diagnosed diabetes mellitus with related neuropathy in the upper and lower extremities that was also impacted by degenerative disc disease of the cervical and lumbar spine. The examiner noted she would have to resort to speculation to give a percentage of how much neuropathy was related to the diabetes or to the back disabilities. A January 2011 VA treatment record noted the Veteran complained of a smarting sensation in the right lateral thigh. He also had back and right lateral calf pain which increased with activity. He felt numbness and tingling sensations in the bilateral hands and feet. Straight leg raises on either side were negative, but the impression was chronic low back and right leg pain that was likely secondary to degenerative disc disease. A May 2011 private treatment record noted motor strength testing as active movement against gravity, decreased sensory examination to all modalities in a stocking-glove distribution, and deep tendon reflexes were 1+ and symmetric. At an August 2011 Agent Orange registry examination, the Veteran reported numbness and tingling to the hand and feet for over 10 years. The symptoms were progressively worse in his feet and he had constant pain with cold and numbness noted. He experienced pain and numbness to his hand half of the time. On physical examination, the extremities had good pulses. Both feet were warm and dry with intact skin. There was pain with palpation of the right great toe. There was symmetrical strength, reflexes and sensation throughout. The examiner noted diabetes and peripheral neuropathy as diagnoses with possible association with Agent Orange exposure. The Veteran was given a peripheral nerve conditions disability benefits questionnaire (DBQ) in September 2011. The examiner noted that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The Veteran reported bilateral lower extremity numbness and tingling from below the knees to the feet for three to four years. Approximately one year later he started to have numbness and tingling in the right hand. He denied any symptoms of the left upper extremity. The examiner noted mild right upper extremity and bilateral lower extremity paresthesias and numbness. Muscle strength testing in the right upper extremity was 4/5 and 5/5 in the left upper extremity and bilateral lower extremities. There was no muscle atrophy. Deep tendon reflexes were all 1+. Sensation to light tough was normal in all extremities. All nerve testing was normal. Phalen's sign and Tinel's sign were negative bilaterally. In a December 2011 VA treatment record, the Veteran reported his feet and legs became numb at night due to his diabetes. In a March 2012 private treatment record, the Veteran denied radiating pain to the feet or ankles or lower extremity weakness. He did report numbness and tingling in both feet. He also complained of right shoulder pain, but denied any radiating pain from the neck to the upper extremities, hands or fingers, or numbness and tingling. He did complain of related weakness of the right upper extremity. There was tenderness to the right shoulder, but no motor or sensory deficits in either upper extremity. The Dr. S.K.G. assessed acromioclavicular joint synovitis and shoulder pain. He also assessed peripheral neuropathy. In an April 2012 private treatment record, the Veteran denied radiating pain to the feet or ankles, or calf pain. He continued to note persistent "coldness" in both legs and feet. He denied any radiating pain to the upper extremities, hands or finger, upper extremity weakness, numbness or tingling. Peripheral neuropathy continued to be assessed and his medication was increased. May 2012 private treatment records, the Veteran continued to report numbness and tingling in both feet and requested further workup of his neuropathy. Electromyogram (EMG) and nerve conduction studies were scheduled for the bilateral lower extremities. Later in the month he reported persistent numbness and tingling in both feet, as well as occasional right calf "cramps". EMG results revealed lower extremity moderately severe distal symmetrical sensorimotor peripheral neuropathy. It was noted that the findings may be due to diabetes and/or other toxic or metabolic pathology. There was no evidence of lumbar radiculopathy, stenosis, myopathy or focal motor entrapments of the lower extremities. By the end of the month the Veteran reported that his right leg was numb and painful. In a September 2012 private treatment record, the Veteran denied calf pain, radiating pain to the feet or ankles, lower extremity weakness, numbness or tingling. There were no focal motor deficits in the lower extremities, but there was decreased sensation to light touch over stocking distribution bilaterally. In October 2012 private treatment records, the Veteran complained of intermittent numbness, tingling, and burning in the bilateral lower extremities. A November 2012 addendum opinion noted that the Veteran's May 2012 EMG answered the question of whether and to what extent the Veteran's lower extremity neuropathy was due to his diabetes or back disabilities. The EMG ruled out the neuropathy as due to his back disabilities. The examiner then opined that since the Veteran had diabetic neuropathy of the lower extremities it was at least as likely as not that he also had peripheral neuropathy of the bilateral upper extremities as the description includes symptoms consistent with that of diabetes mellitus. The examiner also opined that the Veteran would have at least mild diabetic peripheral neuropathy of the upper and lower extremities. A March 2013 private treatment record noted the Veteran complained of intermittent numbness, tingling and pain in the bilateral lower extremities. In May 2013, the Veteran's wife submitted a statement and noted that the Veteran's feet and legs hurt all the time. In September 2013, the Veteran's wife submitted another statement that noted the Veteran would wake at night with legs and feet that were cold and numb. The Veteran was afforded another VA examination in January 2014. The Veteran reported severe constant pain of the right lower extremity and moderate constant pain of the left lower extremity. There was mild intermittent pain of the right upper extremity, severe intermittent pain of the right lower extremity, and moderate intermittent pain of the left lower extremity. There were severe paresthesias of the right lower extremity and moderate paresthesias of the left lower extremity. There was mild numbness of the right upper extremity, severe numbness of the right lower extremity and moderate numbness of the left lower extremity. Muscle strength testing revealed bilateral elbow flexion at 4/5, right grip 4/5, and bilateral pinch 3/5. All other upper extremity strength was 5/5. Knee extension was 3/5 on the right and 4/5 on the left. Bilateral ankle plantar flexion was 4/5, and bilateral ankle dorsiflexion was 3/5. There was no muscle atrophy. Deep tendon reflexes revealed bilateral biceps and brachioradialis 1+, right triceps 1+, and left triceps 2+. The bilateral knees were 2+ and the bilateral ankles were 1+. Sensation to light touch was decreased to the right shoulder and right inner/outer forearm, and absent to the right hand/fingers. There was decreased sensation to light touch to the bilateral thigh/knees and right lower leg/ankle. Sensation to the right foot/toes was absent. Tinel's sign on the right was positive. The examiner noted there was severe incomplete paralysis of the right median nerve and right ulnar nerve. The examiner also noted there was moderately severe incomplete paralysis of the right sciatic nerve and moderate incomplete paralysis of the left sciatic nerve. The Veteran regularly used a cane to ambulate. The peripheral nerve condition impacted his ability to work because he was unable to use the computer of the hand microphones with his right hand and he was unable to climb 63 stairs to the tower. He retired from his position as an air traffic controller in 2008 due to his disabilities. The Veteran was afforded a Travel Board hearing in February 2018. At the hearing, the Veteran and his attorney argued that the claims had been continuously pursued and that his current ratings should have gone back to almost the October 2010 date of claim. While the Veteran's attorney noted that the left upper extremity was reduced in the most current rating and did not compute, he also noted that the Veteran was very happy with his current ratings and just wanted the current ratings to be assigned earlier. A. Peripheral Neuropathy of the Right Lower Extremity Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. After a review of the pertinent evidence, although there is some conflicting evidence as to the severity of the Veteran's symptoms, the Board finds that based on the Veteran's documented symptoms, including numbness, tingling, and severe pain, it is factually ascertainable that the Veteran satisfied the criteria for a rating of 40 percent as early as October 7, 2010, the effective date of the grant of service connection. Therefore, a 40 percent disability rating for the Veteran's service connected peripheral neuropathy of the right lower extremity is warranted from October 7, 2010. B. Peripheral Neuropathy of Left Lower Extremity Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve and, therefore, neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. After a review of the pertinent evidence, although there is some conflicting evidence as to the severity of the Veteran's symptoms, the Board finds that based on the Veteran's documented symptoms, including numbness, tingling, and pain, it is factually ascertainable that the Veteran satisfied the criteria for a rating of 40 percent as early as October 7, 2010, the effective date of the grant of service connection. Therefore, a 40 percent disability rating for the Veteran's service connected peripheral neuropathy of the left lower extremity is warranted from October 7, 2010. C. Peripheral Neuropathy of Right Upper Extremity Diagnostic Code 8515 provides ratings for paralysis of the median nerve. As for the major arm, a 70 percent disability rating is warranted for complete paralysis of the median nerve, demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." A 50 percent disability rating is assigned for severe incomplete paralysis. A 30 percent disability rating is assigned for moderate incomplete paralysis. A 10 percent disability rating is assigned for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8515. After a review of the pertinent evidence, although there is some conflicting evidence as to the severity of the Veteran's symptoms, the Board finds that based on the Veteran's documented symptoms, including numbness, tingling, and decreased reflexes, it is factually ascertainable that the Veteran satisfied the criteria for a rating of 10 percent as early as October 7, 2010, the effective date of the grant of service connection. Based on the Veteran's symptoms including numbness, tingling, and severe pain, it is factually ascertainable that the Veteran satisfied the criteria for a rating of 50 percent as early as May 2, 2011, the date at which the Veteran first had a decreased sensory examination for the right upper extremity. Therefore, a 10 percent disability rating for the Veteran's service connected peripheral neuropathy of the right upper extremity is warranted from October 7, 2010, to May 2, 2011. A 50 percent disability rating for the Veteran's service connected peripheral neuropathy of the right upper extremity is warranted from May 2, 2011. D. Peripheral Neuropathy of Left Upper Extremity Diagnostic Code 8515 provides ratings for paralysis of the median nerve. As for the major arm, a 70 percent disability rating is warranted for complete paralysis of the median nerve, demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." A 50 percent disability rating is assigned for severe incomplete paralysis. A 30 percent disability rating is assigned for moderate incomplete paralysis. A 10 percent disability rating is assigned for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8515. After a review of the pertinent evidence, although there is some conflicting evidence as to the severity of the Veteran's symptoms, the Board finds that based on the Veteran's documented symptoms, including numbness, tingling, and decreased reflexes, it is factually ascertainable that the Veteran satisfied the criteria for a rating of 10 percent as early as October 7, 2010, the effective date of the grant of service connection. However, at no point during the appeal period did the Veteran manifest greater than mild symptoms for peripheral neuropathy of the left upper extremity. Therefore, a 10 percent disability rating for the Veteran's service connected peripheral neuropathy of the left upper extremity is warranted from October 7, 2010, but at no point during the appeal period does the Veteran's peripheral neuropathy of the left upper extremity warrant a rating in excess of 10 percent. ORDER A rating of 40 percent for peripheral neuropathy of the right lower extremity from October 7, 2010, to October 28, 2013, is granted. A rating of 40 percent for peripheral neuropathy of the left lower extremity from October 7, 2010, to October 28, 2013, is granted. A rating of 10 percent for peripheral neuropathy of the right upper extremity from October 7, 2010, to May 2, 2011, is granted; a rating of 50 percent for peripheral neuropathy of the right upper extremity from May 2, 2011, is granted. A rating of 10 percent for peripheral neuropathy of the left upper extremity from October 7, 2010, to May 2, 2011, is granted; a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity from May 2, 2011, is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issue so that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds it necessary to remand the issue of entitlement to a TDIU for initial development and consideration, to include sending appropriate notice to the Veteran, in light of the Veteran's statements that his peripheral neuropathy prohibited him from employment. See January 2014 VA examination. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board will remand for consideration of a TDIU rating under Rice. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran an application for a TDIU (VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability) and an appropriate VCAA notification letter. 2. Conduct any development needed to adjudicate the issue of entitlement to a TDIU. 3. After completion of the above and compliance with the requested actions has been ensured, adjudicate the issue of a TDIU in light of all the evidence of record. If the determination remains adverse to the Veteran, the Veteran and representative should be furnished with a supplemental statement of the case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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) ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs