Citation Nr: 0809999 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-03 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a pulmonary embolism, to include as secondary to service-connected residuals of a right ankle injury. 2. Entitlement to an increased rating for residuals of a right ankle injury, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from March 1992 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, denying the veteran's claims of entitlement to service connection for a pulmonary embolism and to an increased rating for residuals of a right ankle injury. The issue of the veteran's entitlement to direct and secondary service connection for a pulmonary embolism is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA's Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's service-connected residuals of a right ankle injury consist of arthritis, pain, stiffness, swelling and restricted movement which, when all symptoms are considered, results in what more nearly approximates marked versus moderate limitation of motion of the ankle; there is no medical evidence of ankylosis. 2. There is no showing of frequent periods of hospital care or a marked interference with employment as a result of the service-connected residuals of a right ankle injury. CONCLUSION OF LAW The criteria for the assignment of a 20 percent rating, but none greater, for residuals of a right ankle injury have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.2, 4.3, 4.6, 4.7, 4.10, 4.59, 4.71a, Diagnostic Codes 5270, 5271 (2007); Johnston v. Brown, 10 Vet. App. 80 (1997). . REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Considerations Under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). Second, VA has a duty to notify the appellant of the information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This assistance includes obtaining all relevant evidence adequately identified in the record, and in some cases, affording VA examinations. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Finally, VA has a duty to notify the appellant that he or she should submit all pertinent evidence in his possession. During the pendency of this appeal, a decision was entered by the United States Court of Appeals for Veterans Claims (Court) in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran's status; 2) existence of disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that the VCAA 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. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008). Further, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, the Board finds that there is no issue as to providing an appropriate application form or completeness of the application. Written notice of the information and evidence needed by the veteran-appellant to substantiate and complete his claims, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the appellant was provided to him through the RO's VCAA letters of June 2005 and January 2006. The appellant was thereby notified that he should submit all pertinent evidence in his possession. VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the initial VCAA notice letter was prepared and furnished to the veteran-appellant subsequent to the RO's decision in October 2005 in accord with Pelegrini. The record further reflects that this matter was certified by the RO to the Board for its review in early March 2006, just days subsequent to entry by the Court of its holding in Dingess/Hartman, and, as such, the required notice under Dingess-Hartman was never provided to the veteran. Where the VCAA notice is defective, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders v. Nicholson, 487 F.3d 881 (2007) (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In Sanders, the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Veterans Court (Court of Appeals for Veterans Claims), the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. An error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield, supra, at 116; accord Sanders, supra, at *10 ("this opinion does not . . . change the rule that reversal resulted the essential fairness of the adjudication to have been affected"). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Id.; accord Sanders, supra. To show that the error did not affect the essential fairness of the adjudication, VA must demonstrate that the purpose of the notice was not frustrated, such as by demonstrating: (1) That any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores, slip op. at 12 ("(a)ctual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, slip op. at 9. The record in this instance demonstrates through the allegations advanced by the veteran that he had actual knowledge that an increased rating was for assignment for his right ankle disorder on the basis of limitation of motion. He argues at length that examining and treatment VA medical professionals have advised him that his right ankle motion was very limited and that a 20 percent rating is warranted on that basis. As well, while it is conceded that notice as to disability ratings or effective dates pursuant to Dingess/Hartman is lacking, this matter does not entail a claim for service connection. Rather, in this instance, service connection was granted long ago, and the veteran seeks an increased rating on the basis of an alleged increased level of severity of the service-connected disability. In view of the foregoing, the Board cannot conclude that any defect in the substance or timing of the notice provided affected the essential fairness of the adjudication, and, thus, the presumption of prejudice is rebutted. Id. To that extent, any error as to notice under Dingess/Hartman is found to be harmless, and it is determined that prejudice would not result to the appellant were the Board to enter a final decision as to the matter herein addressed on its merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). Also, all pertinent examination and treatment records have been obtained and made a part of the claims folder to the extent that such records have been adequately identified or are otherwise available. Notice is taken that record contains a variety of medical records compiled by VA examining and treating medical professionals, including the report of a VA medical examination conducted in September 2005. Such evaluation was comprehensive in scope and productive of detailed medical findings with which to rate the disability in question. The record is otherwise found to be fully adequate for the rating of the disorder in question and there is no need for the conduct of any additional medical evaluation by VA. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has satisfied its duties under the VCAA. It is also pertinent to note that, as discussed in more detail below, the instant decision grants the maximum rating available based upon limitation of motion of the ankle and there is no medical evidence of ankylosis of the joint. Claim for Increase: Residuals of a Right Ankle Injury Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Service connection for residuals of a right ankle injury was established by RO action in June 1998, when a 10 percent rating was assigned therefor under DC 5271, effective from March 1998. The current claim for increase was received by the RO in October 2005 and in connection therewith the veteran alleges that he is experiencing pain, stiffness, limitation of motion, and bone spurs, which warrant the assignment of a 20 percent schedular evaluation under DC 5271. Normal dorsiflexion of the ankle is from 0 degrees to 20 degrees; normal plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. DC 5271 provides that a 10 percent evaluation will be assigned for moderate limitation of motion of an ankle and a 20 percent evaluation assigned for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, DC 5271. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that in evaluating a service-connected joint disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. Notice is taken that in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court found no basis for drawing a distinction between initial ratings and increased- rating claims for applying staged ratings. VA treatment records indicate that when the veteran was seen in May 2005, his right ankle was non-tender and it exhibited what was described as at least moderately good range of motion. The impressions were of ankle arthralgia and probable early degenerative joint disease. Further complaints of pain and stiffness were expressed when seen in follow-up later in May 2005. On a VA medical examination in September 2005 the veteran reported constant pain and stiffness, as well as occasional swelling, regarding his right ankle. He described flare-ups of pain that occurred twice monthly for two days. In the opinion of the examiner, such flares did not impair the veteran's daily functional activities for self-care or the performance of his job, noting that no time had been lost from his job due to the right ankle disorder. Clinically, on evaluation in September 2005, dorsiflexion was to 0 degrees and plantar flexion was to 35 degrees. Inversion and eversion were limited to 10 degrees. No further limitation of motion was present with repetitive movement. Pain was noted with dorsiflexion; fatigue, weakness, lack of endurance, and incoordination were absent. X-rays showed a small sclerotic density in the distal fibula, as well as small plantar calcaneal spurs. From a diagnostic standpoint, the examiner determined that the residuals of the veteran's right ankle injury included pain with stiffness, calcaneal spurs of the right foot, a bunion deformity with ten degrees hallux valgus of the right foot, and a claw toe deformity of the right second, third, and fourth toes. While range of motion was found to be "moderately good" in May 2005, testing on the VA medical evaluation with goniometer was reported to show a 100 percent loss of right ankle dorsiflexion and approximately a 22 percent reduction in plantar flexion. Pain and flare-ups were noted; however, no further reduction in range of motion was indicated on the basis of pain or repetitive bending, and evidence of fatigue, weakness, lack of endurance, and incoordination was lacking. The noted flare-ups were found by the examiner not to impair the veteran's daily self-care functioning. With consideration of 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra, the Board finds that the limitation of motion of the left ankle more nearly approximates marked versus moderate in degree. Accordingly, a 20 percent rating under 38 C.F.R. §§ 4.40, 4.45, and 4.71a, Diagnostic Code 5271 is warranted. Turning next to the question of whether an even higher rating is warranted, as a 20 percent rating is the maximum evaluation allowed for limitation of motion of an ankle, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (see DeLuca, supra) are not applicable to this aspect of the appeal. Johnston v. Brown, 10 Vet. App. 80 (1997). Absent a showing of ankylosis, DCs 5270 and 5272 of the Rating Schedule are not for application. Ankylosis is immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dorland's Illustrated Medical Dictionary 86 (28th ed. 1994). Here, the clinical evidence clearly shows that the veteran has plantar flexion to a significant degree. Although the ankle is a major joint for the purpose of rating disability from arthritis pursuant to 38 C.F.R. § 4.45(f), a compensable evaluation under DC 5003 is not warranted where, as here, there are joint specific guidelines. 38 C.F.R. § 4.71, Diagnostic Code 5271. There is otherwise no showing of the existence of more than a moderately severe foot injury, such that a rating in excess of 20 percent is not for assignment under DC 5284. As the preponderance of the evidence is against an even higher rating of more than 20 percent, the doctrine of reasonable doubt is not applicable to this aspect of the appeal. 38 U.S.C.A. § 5107(b). To accord justice in the exceptional case where the assigned schedular evaluation is found to be inadequate, the VA's Under Secretary for Benefits or the Director of the Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set for in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id. The Board does not have the authority to assign, in the first instance, a higher rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), and given the circumstances of this case, there is no basis to refer the matter to designated VA officials for consideration of an extraschedular rating. Bagwell v. Brown, 9 Vet. App. 377 (1996). Here, the VA examiner determined that the veteran's right ankle disorder did not affect the performance of his job or require him to miss work. There is otherwise no indication that such disorder has necessitated frequent periods of hospital care. Accordingly, a referral for a determination of whether the assignment of an extraschedular rating is appropriate is not warranted. On the basis of the above analysis, the record supports a rating of 20 percent under DC 5271, but none greater under that code or any other code. ORDER A 20 percent rating, but none greater, for residuals of a right ankle injury is granted, subject to those provisions governing the payment of monetary benefits. REMAND The record reflects that the veteran was diagnosed as having a pulmonary embolism beginning in early 1999, approximately one year following his discharge from active duty in early 1998. The veteran alleges that he developed pulmonary emboli secondary to deep venous thrombosis, which in turn was due to prolonged sitting during overseas flights while in the military. He also advances a slightly different theory, to the effect that his pulmonary embolism itself is secondary to his service-connected residuals of a right ankle injury. Medical data on file do not specifically delineate the cause of the veteran's pulmonary embolism and, contrary to the RO's determination, only raise the possibility that it is the result of a genetic defect involving a protein C deficiency. Testing to confirm any such deficiency cannot be undertaken while the veteran remains on anti-coagulation therapy and, to date, his attending physicians have determined that it is not prudent to discontinue such therapy, considered to be lifelong in duration, for that purpose alone. No VA medical examination has been afforded the veteran to date regarding the etiology of his pulmonary embolism, and based on the lack of clarity as to its etiology, further medical input is deemed advisable, to include obtaining a VA medical examination by a specialist in the field of pulmonology and a professional opinion. Notice is taken as well that no medical opinion has been sought or obtained by VA to date as to the claim for secondary service connection and, specifically, whether the service-connected residuals of a right ankle injury have caused or aggravated the veteran's pulmonary emboli. See 38 C.F.R. § 3.310 (2007); see also Allen v. Brown, 7 Vet. App. 439 (1995) (when a veteran's service- connected disability aggravates, but is not the proximate cause of, a non-service-connected disability, the veteran is entitled to compensation for that incremental increase in severity of the non-service-connected disability attributable to the service-connected disability). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen for secondary service connection on the basis of the aggravation of a nonservice- connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). Under the changes, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury" and the previously designated paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added as follows: Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. It is noted that the RO has not to date been afforded the opportunity to adjudicate this matter on the basis of the amended regulation noted above. While this amendment essentially codified Allen v. Brown, 7 Vet. App. 439 (1995), as the claim must be remanded for an examination and medical opinion, the veteran should be provided notice of 71 Fed. Reg. 52744 (2006). Accordingly, the case is REMANDED for the following actions: 1. Consistent with the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2007), the veteran should be provided notice of what additional information and evidence are needed to substantiate his original claim for service connection for a pulmonary embolism on a direct basis and a secondary to service-connected residuals of a right ankle disorder. The veteran should be notified by written correspondence of any information and evidence not of record (1) that is necessary to substantiate his claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). The RO or AMC should obtain any relevant VA or other Federal records, such as those compiled by or on behalf of the service department, which are identified. If requested, VA will assist him in obtaining updated records of treatment from private medical professionals or other evidence, provided that he supplies sufficient, identifying information and written authorization. The VCAA notice should also include, pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), an explanation as to the information or evidence needed to establish ratings and effective dates, as outlined by the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The AMC/RO should also notify the veteran of a recent amendment to 38 C.F.R. § 3.310, effective October 10, 2006, which implemented the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice- connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Depending on the response received from the veteran, any and all assistance due him should then be afforded by the RO/AMC. 2. All records of VA medical treatment, not already on file, which pertain to the veteran's pulmonary embolism or emboli, claimed as blood clots of the lung, should be obtained and made a part of his claims folder. 3. Thereafter, the veteran should be afforded a VA medical examination by physician in the specialty of pulmonology for the purpose of determining the etiology of his pulmonary embolism. The relevant evidence in the claims folder must be reviewed by the examiner in conjunction with the examination. The examination must include a detailed review of the veteran's history and current complaints, as well as a comprehensive clinical evaluation and any diagnostic testing deemed necessary. The pulmonologist is asked to address the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the veteran's pulmonary embolism originated during or as a result of his military service from March 1992 to March 1998 or any event therein. Whether extended periods of sitting during long overseas flights while in military service could be a cause of the pulmonary embolism should be fully discussed. (b) Is it at least as likely as not (50 percent or greater probability) that the veteran's pulmonary embolism was caused or aggravated by his service- connected residuals of a right ankle injury? The physician is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or aggravation; less likely weighs against the claim. The examiner is also informed that aggravation for legal purposes is defined as a chronic worsening of the underlying condition versus a temporary flare up of symptoms. It represents a permanent increase in severity, beyond its natural progression. The physician is requested to provide a rationale for any opinion provided, preferably with citation to the clinical record. If the examiner determines that the claimed aggravation of the veteran's pulmonary embolism occurred, to the extent that is possible, he or she should provide the approximate degree of severity of the embolism (the baseline level of functional impairment) before the onset of aggravation (e.g., slight then, moderate now). If the clinician is unable to answer any question presented without resort to speculation, he or she should so indicate. 4. Lastly, the veteran's claim of entitlement to direct and secondary service connection for a pulmonary embolism should then be readjudicated on the basis of all relevant evidence and all governing legal authority, inclusive of the amendment to 38 C.F.R. § 3.310, effective October 10, 2006. See 71 Fed. Reg. 52744 (2006). If any benefit sought on appeal is not granted to the veteran's satisfaction, he should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The veteran need take no action until he is notified. He has the right to submit additional evidence and argument on the matter(s) the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional evidentiary and procedural development. No inference as to the outcome of this matter should be drawn from the actions requested. ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs