Citation Nr: 0003391 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 96-40 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected post-operative left shoulder disability. 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran had active service from February 1971 to April 1971 and from September 1974 to February 1983. He had a period of active duty for training from February 1974 to July 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1995 rating decision from the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO) that denied a compensable rating for the left shoulder disability. A June 1996 rating decision increased the rating to 20 percent, and the veteran continued to appeal for a higher rating. The veteran subsequently moved to South Carolina, and the Columbia RO currently has jurisdiction of the case. This case was first before the Board in August 1997, at which time the issues of increased ratings for grand mal epilepsy and hypertension were denied and the issue of a higher rating for the left shoulder disability was remanded. In that decision, the Board noted that the RO formally denied entitlement to TDIU benefits in a rating decision dated in March 1997. The Board also noted that the veteran's representative indicated in a June 1997 statement that the veteran was still seeking TDIU benefits, and that matter was referred to the RO for appropriate consideration. See Nacoste v. Brown, 6 Vet. App. 439 (1994) (an Informal Hearing Presentation is not a notice of disagreement (NOD) when received directly at the Board). In February 2000 written arguments, the veteran's representative points out that the RO subsequently accepted the June 1997 statement as an NOD. 38 C.F.R. §§ 20.201, 20.300 (1999). The RO furnished a statement of the case pertinent to TDIU, and the veteran submitted a timely substantive appeal. Thus, the Board has jurisdiction of the TDIU issue. Accordingly, the issues on appeal are as shown on the title page of this decision. The issue of entitlement to a TDIU is addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal regarding the left shoulder (major) has been obtained. 2. With consideration of the effects of pain, the veteran's service-connected left shoulder disability is manifested by excess fatigability that results in limited motion that is no more than midway between the side and shoulder level; there is no evidence of frequent dislocation at the scapulohumeral joint and guarding of all arm movements. 3. The competent evidence also shows a tender and painful scar residual to surgical treatment of the left shoulder. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 30 percent for service- connected left shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5201, 5202 (1999). 2. The criteria for a separate 10 percent evaluation for a tender and painful left shoulder scar have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.14, 4.118, Diagnostic Code 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records show that the veteran was hospitalized in April 1978 to May 1978 for repair of his recurrent dislocations of his left shoulder. He was later hospitalized in September 1980 for a mass on the left shoulder. The veteran had several profiles during service because of an abnormal and painful left shoulder. A rating decision dated in November 1983 granted service connection for a left shoulder disability at a noncompensable rate, effective from March 1983. The veteran was afforded a VA examination in February 1996. Physical examination disclosed no swelling, laxity or deformity of the left shoulder. A well-healed surgical scar was noted on the anterior aspect of the left shoulder joint. Left shoulder flexion was limited to 120 degrees; abduction was limited to 100 degrees; external rotation was limited to 30 degrees; and internal rotation was limited to 20 degrees. X-rays of the left shoulder were negative for abnormalities. The diagnoses were chronic bursitis involving the left shoulder with limitation of motion; status post surgery of the left shoulder for recurrent subluxation. A subsequent rating decision in June 1996 granted an increased evaluation to 20 percent. During a VA examination of April 1998, the examiner indicated that the claims file had been reviewed. By history, it was noted that the veteran underwent a surgical procedure during service which lessened the shoulder instability. However, the veteran complained of significant stiffness and pain. The pain worsened with any motion overhead as well as with lifting of heavy objects. He is left hand dominant. Physical examination revealed that the veteran had a well- healed deltopectoral incision scar, which was nontender and freely mobile. Forward flexion of the left shoulder was to 95 degrees; abduction was to 30 degrees; internal rotation was to 80 degrees. He had good deltoid and rotator cuff strength. The left shoulder was neurovascularly intact. An X-ray of the left shoulder demonstrated slight degenerative changes and a band of calcification which might be tendonous. The impression was status post left shoulder injury with surgical stabilization, now with pain and stiffness. The examiner opined that the veteran had limited range of motion making overhead activities as well as lifting objects difficult for him. VA outpatient treatment records dated in June 1998 show that the veteran had left shoulder complaints. On VA examination in August 1999, the examiner stated that the claims file was available for review. The veteran's pain of the left shoulder was noted to be 5/6 of 10/10. The pain was described as sharp. Pain was usually absent most of the time, but returned with any activity. As a result, the veteran limited his lifting and most of his activities of daily living. The veteran reported that he could finish most activities, but it was difficult for him. On physical examination, left shoulder elevation was to 120 degrees; abduction was to 165 degrees; and both were considered to be within normal limits. External rotation was to 20 degrees; internal rotation was to the veteran's back pocket; and both motions were less than normal. All motor and muscle strength was 3/5, and the examiner noted that this was less than normal. The examiner pointed out that the veteran also had a 10-centimeter hyperesthetic scar over his deltopectoral interval on the left shoulder and that it was somewhat disfiguring, without keloid. There was no shoulder instability. Some acromioclavicular tenderness was demonstrated with palpation. There was some tenderness to cross arm adduction. There was also excess fatigability. The veteran did not appear to have weak movement in the left upper extremity, nor was there incoordination. The examiner's opinion was that the veteran's being left hand dominant would cause a fair amount of problems. The veteran did have pain manifested with movement of the shoulder, and there was definitely adequate amount of pathology to corroborate the suggested complaints. Analysis: Left Shoulder In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claims. For the purpose of determining entitlement to an increased disability evaluation, the VA examinations are adequate and the case need not be returned. See Stegall v. West, 10 Vet. App. 289 (1998). Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which requires evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). Under the laws administered by VA, disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5200 through 5203 (1999). A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. 38 C.F.R. § 4.69 (1999). The veteran in this case is left-handed, as set out in medical history and the veteran's own statements. Thus, his left upper extremity is his major extremity. The veteran is currently in receipt of a 20 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5202. 38 C.F.R. § 4.27 (1999) provides that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. When choosing which diagnostic code to apply to an unlisted condition, codes for similar disorders or that provide general descriptions that encompass many ailments should be considered. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In deciding which diagnostic code is "closely related" to the unlisted condition, the following three factors may be taken into consideration: (1) whether the functions affected by the condition are analogous; (2) whether the anatomical location of the condition is analogous; and (3) whether the symptomatology of the condition is analogous. Lendenmann v. Principi, 3 Vet. App. 345, 350-51 (1992). Diagnostic Code 5202 pertains to other impairment of the humerus. Under that code, a 20 percent evaluation for the major arm may be granted for two different conditions: (1) malunion of the humerus with moderate deformity; (2) recurrent dislocations of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level. A 30 percent rating may be assigned under this code in two different circumstances: (1) malunion of the humerus with marked deformity; (2) recurrent dislocations of the scapulohumeral joint with frequent episodes and guarding of all arm movements. A 50 percent evaluation requires fibrous union of the humerus, with a 60 percent evaluation assigned for nonunion of the humerus (false flail joint). An 80 percent rating is warranted where there is loss of the head of the humerus. Id. In this case, there is no competent evidence of fibrous union or nonunion of the humerus, or loss of the humeral head. Thus, the criteria for an increased evaluation under Diagnostic Code 5202 have not been met on those bases. 38 C.F.R. § 4.71a, Diagnostic Code 5202. The Board also notes that there is no evidence of marked deformity as a result of malunion of the humerus. At the time of the February 1996 examination, the examiner specifically noted that there was no deformity. There are no other records submitted that indicate otherwise. Consequently, the Board does not find that an increased rating on the basis of deformity is in order. Id. The Board also finds that the record does not demonstrate frequent episodes of recurrent dislocation. As of the April 1998 VA examination, the veteran reported that the shoulder instability had lessened with the surgical procedure during service. Additionally, the VA examination reports and treatment records do not reveal frequent episodes of recurrent dislocation and guarding of all arm movements, such as is required for a rating higher than 20 percent under Code 5202. Thus, a higher rating under this Code is not warranted. Id. In determining the proper rating to be assigned for a given disability, the Board may only consider those factors which are included in the rating criteria provided by regulations for rating that disability. To do otherwise would be error as a matter of law. Drosky v. Brown, 10 Vet. App. 251 (1997); Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). First, the veteran's current complaints consist of pain that leads to decreased activity. As the record reflects clinical manifestations of a measurable limitation of left shoulder motion, the Board has considered diagnostic codes pertinent thereto. Normal ranges of motion of the shoulder are forward elevation (flexion) zero to 180 degrees; abduction zero to 180 degrees; and internal and external rotation 90 degrees. 38 C.F.R. § 4.70, Plate I (1999). 38 C.F.R. § 4.71a, Diagnostic Code 5201 specifically provides for criteria pertinent to a limitation of arm motion. Limitation of motion of the major arm at shoulder level warrants a 20 percent disability rating. Limitation of motion of the major arm midway between the side and shoulder level warrants a 30 percent disability rating. When motion is limited to 25 degrees from the side a 40 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5201. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (Court) held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part which becomes disabled on use must be regarded as seriously disabled. However, a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 and 4.59 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as at least minimally compensable. Id. In making determinations with regard to the application of 38 C.F.R. §§ 4.40 and 4.45, the Board is bound by the holding in VAOGCPREC 9-98 (August 14, 1998), which held that these provisions must be considered in light of the relevant Diagnostic Code governing limitation of motion. To establish a separate rating under these provisions would be tantamount to an extraschedular rating under 38 C.F.R. § 3.321, an outcome not envisioned by the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999). The Court has held that where a diagnostic code is not predicated on a limited range of motion alone, such as Diagnostic Code 5202, the diagnostic code under which the current 20 percent evaluation is assigned, the provisions of 38 C.F.R. §§ 4.40 and 4.45, with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Thus, the Board need not consider whether an additional evaluation is warranted under 38 C.F.R. §§ 4.40, 4.45, 4.59 when utilizing Code 5202. The provisions of Diagnostic Code 5201 are based on limitation of motion. When the veteran was examined by VA, limitation of motion was demonstrated during each of the examinations. When strictly applying the degrees of limitation numerically to the rating criteria under Code 5201, however, the restricted motion was not documented to be at a point midway between side and shoulder level, as required for a higher rating under Code 5201. The Board significantly notes that the examiner in August 1999 specifically addressed the effects of pain and considered whether there was adequate pathology to corroborate the painful movement. It was the examiner's opinion that the veteran had excess fatigability due to pain, and, moreover, there was an adequate amount of pathology to corroborate the suggested complaints. These findings go toward the veteran's limitation of motion and support his claim. Although the actual motion is at a degree greater than midway between side and shoulder level, the Board finds that the effects of pain lessen the motion to the degree contemplated in the 30 percent rating under Code 5201. Thus, a higher rating is warranted to this extent. The Board cannot find that a greater evaluation under Code 5201 is warranted. As described above, the Board has recognized that the effects of pain affect the range of motion. Nevertheless, the veteran has acknowledged that the left shoulder does not prevent him from performing his activities of daily living (VA examination of August 1999). Additionally, despite pain and with difficulty, he is able to perform overhead motion or lift heavy objects (VA examination of April 1998). This evidence does not indicate the degree of disability contemplated by the 40 percent rating under Code 5201 - limitation of motion to 25 degrees from the side. As the evidence, including the effects of pain, do not justify a 40 percent rating, no further increase is warranted. The Board notes that as the veteran's left shoulder is not ankylosed (ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992)), 38 C.F.R. § 4.71a, Diagnostic Code 5200 is not for application in this case. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1999), whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no other basis upon which to assign a higher disability evaluation. The Board has further considered whether the veteran warrants assignment of separate evaluations in this case. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service- connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this case, Diagnostic Code 5202 includes consideration of guarding of movement at the shoulder level, as well as taking into account the veteran's history of recurrent dislocations. Assignment of a separate code based on limitation of motion would violate the prohibition against pyramiding, compensating the veteran twice for "impairment of movement" residual to recurrent left shoulder dislocations. In addition, the Board notes that x-rays show the presence of slight degenerative changes in the veteran's left shoulder. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999) applies to arthritis and provides that such is evaluated based on limitation of motion of the affected part. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In this case, the veteran's currently assigned 30 percent evaluation is based on limitation of motion. Thus, such provides no basis for assignment of separate evaluations. Distinct from the reports of prior examinations, the Board does note that the August 1999 VA examiner described the veteran's left shoulder post-operative scar as hyperesthetic and somewhat disfiguring. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 7805 (1999) pertain to scars. A 10 percent evaluation is warranted for superficial, poorly nourished scars with repeated ulceration under Diagnostic Code 7803. Diagnostic Code 7804 provides that a 10 percent disability evaluation is warranted for superficial scars that are tender and painful on objective demonstration. Diagnostic Code 7805 otherwise provides that a rating for scars is based upon the limitation of function of the affected part. 38 C.F.R. § 4.118. In the instant case, the report of recent VA examination is notable for evidence of an observable left shoulder scar resulting in tenderness/pain. Such tenderness is not attributed to motion or dislocations, but rather to the scar itself. As such, it is distinct from instability, restricted motion or pain otherwise demonstrated as residual to the veteran's left shoulder disability. Thus, the Board finds that the criteria for a separate 10 percent evaluation under Diagnostic Code 7804 are met. 38 C.F.R. § 4.14. The Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. With respect to this claim, the Board observes that in light of Floyd v. Brown, 9 Vet. App. 88 (1996), the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. In the unusual case where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with impairment in the average earning capacity due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b)(1). In this case, the veteran was provided with the text of the criteria for an extraschedular rating in the supplemental statement of the case (SSOC) of July 1998. The RO declined to refer the case for an extraschedular rating. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The evidence in this case fails to show that the veteran's left shoulder disability, in and of itself, now causes or has in the past caused marked interference with his employment, or that such has in the past or now requires frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. In fact, the veteran himself denies any recent left shoulder dislocations. He has indicated that he avoids using his left upper extremity. He has not reported, nor does the evidence show, that he has been frequently hospitalized due to his left shoulder disability. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." That provision speaks directly to the facts of this case. Factors such as missing time from work or requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the schedular evaluation currently assigned to the veteran's left shoulder disability. What the veteran has not shown in this case is that his left shoulder disability, in and of itself, results in unusual disability or impairment that renders the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER An evaluation of 30 percent for service-connected left shoulder disability is granted, subject to the regulations governing the payment of monetary benefits. A separate 10 percent evaluation for a left shoulder scar is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND In the decision herein above, the Board has granted an increased, 30 percent, evaluation for the veteran's service- connected left shoulder disability and a 10 percent rating for a left shoulder scar. The veteran has also claimed entitlement to TDIU benefits. Regulations provide that total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (1999). Thus, the veteran now meets the schedular criteria for consideration of an award of TDIU benefits. Entitlement to a total rating based on individual unemployability must be based solely on the impact of the veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful work. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The question in a total rating claim based upon individual unemployability is whether the veteran is capable of performing the physical and mental acts required by employment and not whether the veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In February 2000 written arguments, the veteran's representative pointed out that the Social Security Administration (SSA) determined the veteran to be unemployable and entitled to disability benefits. SSA records have not yet been associated with the veteran's claims file. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The Court has held that the duty to assist the veteran includes obtaining and developing available facts and evidence to support his claim. This duty is neither optional nor discretionary, Littke v. Derwinski, 1 Vet. App. 90 (1990). The Board also notes that there is no medical opinion regarding the effects of the veteran's service-connected disabilities on his ability to perform gainful employment. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The RO has not yet considered the veteran's TDIU claim based on the Board's grant of increased ratings herein. In Bernard v. Brown, the Court held that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard, 4 Vet. App. 384, 392-394 (1993). Accordingly, to ensure that no prejudice results to the veteran and to ensure that VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is again REMANDED for the following development: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his service- connected disabilities since January 1999. After securing the necessary release, the RO should obtain these records and associate them with the claims file. 2. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. Either in association with a current VA examination or by file review, the RO should obtain a medical opinion by a pertinent specialist regarding whether the veteran's service-connected disabilities are of sufficient severity so as to preclude him from performing gainful employment. 4. After all indicated development has been completed to the extent possible, the RO should again review the record and re-adjudicate the veteran's claim of entitlement to TDIU benefits. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. M. Sabulsky Member, Board of Veterans' Appeals