Citation Nr: 1637010 Decision Date: 09/21/16 Archive Date: 09/27/16 DOCKET NO. 10-18 392A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating in excess of zero percent prior to March 24, 2011, 30 percent prior to September 17, 2015, and 50 percent from September 17, 2015. 2. Entitlement to service connection for pulmonary hypertension, to include as secondary to service-connected sarcoidosis. REPRESENTATION Veteran represented by: Adam Meunier, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from March 1988 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2008 and March 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2013, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by a Veterans Law Judge. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (West 2014); 38 C.F.R. § 20.707 (2015). In July 2016, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. The Veteran subsequently responded that he did not desire another hearing in the matter on appeal; as such, the Board will proceed. In an October 2013 remand, the Board, inter alia, remanded these claims for further evidentiary development. With respect to the increased rating claim, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in supplemental statements of the case (SSOCs) dated December 2015 and May 2016. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The October 2013 Board decision also remanded the issue of entitlement to service connection for an acquired psychiatric disorder. In a November 2015 rating decision, service connection was granted for major depressive disorder; a 10 percent rating was assigned from October 29, 2010 and a 50 percent rating was assigned from September 23, 2015. To the Board's knowledge, the Veteran has not disagreed with the decision; that matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The issue of entitlement to service connection for pulmonary hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's migraine headaches have been characterized by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. 2. The Veteran's migraine headaches do not present a disability picture so exceptional or unusual as to render impractical the application of the schedular rating standards. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for an initial disability rating of 50 percent, but no higher, for migraine headaches have been met since the date of claim. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. As to the migraine headaches claim, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated. It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473,490-491 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The evidence in the claims file includes VA and private treatment records, as well as service treatment and personnel records. Additionally, pursuant to the October 2013 Board Remand, the Veteran was afforded a VA examination in September 2015, the report of which is of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination is sufficient, as it is predicated on consideration of the Veteran's treatment records in the claims file, as well as specific examination findings. The VA examiner considered the statements of the Veteran, and provided a rationale for the findings made, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the pending claim has been met. 38 C.F.R. § 3.159(c)(4). Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. II. Initial rating claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is assigned a noncompensable (zero percent) evaluation prior to March 24, 2011, a 30 percent evaluation prior to September 17, 2015, and a 50 percent evaluation from September 17, 2015. As discussed below, the Board concludes that a 50 percent disability evaluation is warranted for the entire appeal period. Thus, a staged rating is not appropriate for the Veteran's service-connected migraine headaches. The Veteran's migraine headaches have been rated under Diagnostic Code (DC) 8100. Under DC 8100, which addresses migraines, a 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months, over the last several months. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months. Finally, a 50 percent rating is assigned when migraines with very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." See Fenderson v. West, 12 Vet. App. (1999), in which the Court quoted DC 8100 verbatim but did not specifically address the matter of what is a prostrating attack. By way of reference, the Board notes that according to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), "prostration" is defined as "extreme exhaustion or powerlessness;" and according to STEDMAN'S MEDICAL DICTIONARY 1461 (27th Ed. 2000), "prostration" is defined as "a marked loss of strength, as in exhaustion." Initially, as noted in the October 2013 Remand, the Veteran is also service-connected for frontal sinusitis, which is rated under 38 C.F.R. § 4.97, DC 6512. As the rating criteria for the service-connected migraine cephalgia and the frontal sinusitis each contemplate headaches as a symptom, the Board must be cognizant of the fact that rating the same manifestations of a disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Accordingly, pursuant to the October 2013 Remand, the September 2015 VA examiner identified the different symptomatology associated with the frontal sinus headaches and the Veteran's migraine headaches. Accordingly, the Board will proceed to consider the Veteran's migraine cephaglia in light of these distinctions. Here, the Veteran filed a claim of entitlement to service connection for migraine headaches in November 2007, prior to his active duty discharge in March 2008. He was afforded a VA examination in December 2007 at which time the examiner diagnosed the Veteran with migraine cephalgia and noted that the condition was diagnosed several years prior. The examiner noted the Veteran's report of severe headaches as often as four times per week, which last 42 hours. Treatment of the Veteran's headaches was described as "conservative," consisting primarily of rest and sleep. The examiner opined that there was no functional impairment and that the Veteran's chronic severe headaches had "only minimally" affected his ability to perform his usual occupation and daily activities. VA treatment records dated September 2008 reflect the Veteran's complaints of headaches approximately three times per week. The Veteran reported that some headaches are worse than others. The migraines were preceded by blurry vision, photophobia, phonophobia, and nausea. He stated that his migraines last all day. He reported that he only takes Tylenol in an attempt to treat the headaches, which has not worked. He was then prescribed Tordol, Amitriptyline, and Imitrex. In his April 2009 notice of disagreement (NOD), the Veteran reported that he was taking Amitriptyline 10mg. to prevent headaches. He reported that his headaches "have escalated to almost unbearable pain causing time missed from my current job." Private treatment records dated August 2009 noted the Veteran's report of persistent weekly headaches for over two years. He also reported that he experiences frontal headaches on and off. An October 2009 treatment record noted the Veteran's report that his headaches are better, but he still gets two to three per week. In his May 2010 VA Form 9, the Veteran stated that he has had to take considerable sick leave from work as a result of his migraine headaches. In an October 2010 statement, he reported that his migraine headaches require him to "miss too much time from work." He noted that his headaches are "very unpredictable . . . as well as uncontrolled at times causing downtime from work." VA treatment records dated in March 2011 noted that the Veteran experiences two kinds of headaches: migraines and right frontal headaches. The Veteran reported that his migraines are getting worse. He stated that they are precipitated by blurry vision, gastrointestinal upset, light sensitivity and sound sensitivity; these headaches occur once in three to four months. The Veteran reported that, if he takes sumatriptan at the beginning of the headache, it subsides to 5/10 in intensity. His right frontal headaches occur two to three times per month, and are 3-4/10 in intensity. The Veteran reports that his migraines cause "severe irritability" and cause him to feel tired during the day. An August 2011 leave statement from the Veteran's employer indicated that he used 78 days of sick leave in the year to date. In a September 2011 statement, the Veteran reported that he has two to three major headaches per month with migraines occurring one to two days per month. He stated that his migraines consist of chronic pain and nausea with blurry vision. He stated that his headaches "are affecting my life in every [manner] work and personal." A VA treatment record dated October 2011 reflects the Veteran's report of migraine headaches with aura. The aura consists of nausea and blurry vision. The Veteran stated that, once a migraine begins, it usually lasts from four hours to a day and a half. He uses Zolmitriptan as an abortive measure, which works if he takes it on time. His Amitriptyline was increased, as it was having little impact. The Veteran was afforded a VA examination in December 2011 at which time the examiner diagnosed him with migraines including migraine variants. The examiner noted the Veteran's report that he "gets severe headaches ten times a month or longer." The Veteran denied any specific triggers. He takes Amitriptyline 50 mg. every night and Zolmitriptan 2.5mg, as needed for headaches. The Veteran described his migraine headaches as constant head pain with pulsating and throbbing. He stated that the pain worsens with physical activity. He also endorsed nausea and sensitivity to light and sound as a result of his migraine headaches. The Veteran stated that his migraine headaches last one to two days. The examiner noted that the Veteran experienced characteristic prostrating attacks of migraine pain - more frequently than once per month. The examiner further indicated that the Veteran described very frequent prostrating and prolonged attacks of migraine pain. The examiner noted that the migraines do impact the Veteran's ability to work in that "[h]e is frequently not at work due to his headaches." Private treatment records dated in December 2011 noted the Veteran's "chronic intractable migraine headache" pain. It was further indicated that Imitrex had failed to help treat the Veteran's headaches. In a February 2012 statement, the Veteran's son, Mr. D.T., reported that his father "frequently experiences strong headaches or migraines; sometimes as much more than once a week." Mr. D.T. stated, "[t]hey appear high in severity and he is often unable to function normally. He struggles to do normal tasks and, as a result, he usually confines himself to bed until he is better." In a separate February 2012 statement, the Veteran's friend, Mr. D.B., stated that he has known the Veteran for over five years. He stated that, throughout those years, the Veteran "has experienced more and more headaches or migraines. I see him in pain almost every week dealing with these headaches." Mr. D.B. reported, "[o]ften, he is so unable to do these tasks that he has to take a break or even drop the whole task, unable to function due to headaches or migraines." A May 2012 disability benefits questionnaire (DBQ) noted the Veteran's continuing diagnosis of migraine headaches including migraine variants. It was indicated that the Veteran experiences frequent migraine headaches accompanied by nausea, as well as light and sound sensitivity with blurred vision and stabbing pain. The Veteran was taking Topomax. He reported that the headaches last less than one day and occur on both sides of his head. He endorsed "characteristic prostrating attacks," which occur more frequently than once per month. The examiner also noted that the Veteran experienced "very frequent prostrating and prolonged" migraine headaches. In a March 2013 letter, the Veteran's supervisor of two years, Commander J.R. reported that "[d]uring the calendar year 2012, [the Veteran] took over 90 hours of sick leave for either visits to the doctor or incapacitation due to migraines." Commander J.R. noted that the Veteran experienced migraine flare-ups or appointments "every three to four weeks. On some occasions, he would miss two days of work." He further noted that, on some occasions, the Veteran "would come to work with migraines and was unable to perform at his usual level." In support of his claim, the Veteran also submitted a letter from Captain C.P., who had supervised the Veteran from 2007 to 2010. Captain C.P. stated that the Veteran's "work performance was outstanding, however, there were numerous occasions when he was physically unable to perform his duties due to illness." Captain C.P. further reported, "[t]here were many times when I would find him sitting in his office with the lights off because he was in pain due to bright lights." In a March 2013 statement, Mr. B.B. reported his awareness that the Veteran was frequently absent from work due to his migraine headaches. At the April 2013 Board hearing, the Veteran testified that he has three to four migraine headaches per month, which he described as prostrating. See the April 2013 Board hearing transcript, pg. 11. He stated that he misses an average of two days from work per month due to migraine pain. Id. at pg. 13. Pursuant to the October 2013 Board Remand, the Veteran was afforded a VA examination in September 2015 to address his service-connected migraine headaches. The examiner confirmed a diagnosis of migraine headaches including migraine variants. The examiner also diagnosed the Veteran with sinus headaches. The examiner noted that, after having sinus surgery in 2011, the Veteran is now having sinus headaches rarely, about once per month. These sinus headaches are frontal pressure headaches and are not associated with all the other migraine symptoms. The examiner noted that the Veteran's migraines are 10/10 in severity and are located on either the right or left sides of his head. The Veteran's migraines are characterized by throbbing pain with nausea, photophobia, phonophobia, and an aura of flashing lights. The migraines last from 8 hours to two days. The Veteran is currently taking Toprimate, Maxalt, and Bystolic to treat his migraines. The examiner noted that the Veteran has characteristic prostrating attacks of migraine pain. However, the examiner indicated that the Veteran does not have 'very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.' The examiner then stated that the Veteran's headache condition does impact his ability to work because he "[m]isses work 1-2 days per month due to headaches and may make him 'difficult to deal with.'" The examiner also noted that "in a month's time [the Veteran] will be unable to function 1-2 days per month." The examiner further stated that the Veteran's migraines cause him "at least a mild amount of difficulty securing and maintaining gainful employment" because the migraines "cause him to miss work a couple days per month as he can be nonfunctional when he has one and cannot see well for 30-60 minutes just prior to the onset of one. He also may be irritable during his headaches." The examiner continued, "[i]t is at least as likely as not that the Veteran now experiences migraine type cephalgia 3-5 times per month as reported and sinus headaches once per month..." The examiner explained, "Veteran is able to describe in great detail the typical migraine symptoms, including visual aura, and the typical sinus headache symptoms which are quite different and both of which are described above under history." In weighing the clinical and lay evidence of record, the Board finds that, with resolution of doubt in the Veteran's favor, an evaluation of 50 percent for the Veteran's migraine headaches is warranted throughout the appeal period. The record demonstrates that the Veteran does experience frequent chronic, prostrating headaches. The Board notes that the frequency, duration, severity, and impairment caused by the disorder are based on lay statements by the Veteran. As corroborated by the September 2015 VA examiner, the Veteran is competent to report these observable symptoms and their effects, and the Board concludes that his reports are essentially credible because they have been consistent and accepted by VA examiners and private treatment providers. Moreover, the Veteran's competent contentions that his migraine headaches are productive of severe economic inadaptability have been corroborated by the lay statements of his supervisor and former supervisor. This is the maximum evaluation that may be assigned under Diagnostic Code 8100; therefore, the Board has also considered the propriety of a referral for extraschedular consideration. For the reasons, however, set forth below, the Board finds that the Veteran's migraine headache symptomatology does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If the disability picture is not adequately contemplated by the rating schedule, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the rating criteria specifically address the Veteran's migraine headache symptomatology. Thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, and the currently assigned disability ratings are appropriate. See Thun, 22 Vet. App. at 115. Accordingly, a referral for extraschedular consideration is not warranted because his migraine symptoms are contemplated by the rating schedule. Under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, there are no symptoms caused by service-connected disability that have not been attributed to and accounted for by a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed to the combined effect of multiple conditions. Additionally, a request for a total disability rating based on individual unemployability (TDIU) whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. As noted above, it is undisputed that the Veteran's migraine headaches have had a negative impact on his ability to work. However, he has not indicated that he is unable to seek or maintain employment as a result of his service-connected migraine headaches. Therefore, the Board finds no basis for awarding entitlement to TDIU. ORDER An initial disability rating of 50 percent for the service-connected migraine headaches, but no higher, is granted throughout the appeal period, subject to controlling regulations applicable to the payment of monetary benefits. REMAND In the October 2013 Remand, the Board determined that the Veteran should be afforded a VA examination with medical opinion to address the etiology of his claimed pulmonary hypertension. Rather, upon remand, the Veteran was afforded only a VA medical opinion as to the claimed pulmonary hypertension. The examiner indicated that the Veteran did not have a current diagnosis of hypertension, based only upon a review of the claims file. Critically, the examiner failed to discuss the December 2008 echocardiogram, which noted a diagnosis of mild pulmonary hypertension. The Board observes that, although a post-service diagnosis of mild pulmonary hypertension was discussed in detail by an April 2012 VA examiner, that examiner mischaracterized the diagnosis as occurring in conjunction with a November 2010 echocardiogram. Accordingly, the Veteran has yet to be afforded an adequate VA examination and medical opinion to address the outstanding questions of diagnosis and nexus with regard to the claimed pulmonary hypertension. As such, the originating agency did not substantially comply with the Board's prior remand directives. Therefore, another remand is warranted to obtain an adequate opinion from an appropriately qualified VA examiner. Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran's claims file. 38 U.S.C.A. § 5103A(c) (West 2014). 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. After obtaining the appropriate releases where necessary, procure any records of outstanding treatment and/or evaluation that the Veteran has recently received. The Board is particularly interested in VA treatment records since December 2015. All such available documents should be associated with the claims file. 2. The RO/AMC shall schedule the Veteran for a VA examination by an appropriate physician so as to determine the nature and etiology of the claimed pulmonary hypertension. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with conducting the examination of the Veteran. All testing deemed necessary shall be undertaken. The examiner is directed to answer all of the following questions: (a) Does the Veteran have pulmonary hypertension? In answering this question, the examiner should address the December 2008 echocardiogram, which noted a diagnosis of mild pulmonary hypertension. (b) If so, is it at least as likely as not that such had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service? (c) If not, is it at least as likely as not that any diagnosed pulmonary hypertension was caused or aggravated by a service-connected disability, to specifically include sarcoidosis? If aggravated by a service-connected disability, the examiner should also indicate the measurable increase in severity of the disability by identifying the baseline level prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for pulmonary hypertension in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. If necessary, the examiner shall attempt to reconcile the opinion with any other medical opinions of record. All opinions expressed must be accompanied by a complete rationale. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. No action is required of the Veteran until notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in denial of the claims. 38 C.F.R. § 3.655 (2015). The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs