Citation Nr: 0812760 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-10 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, currently rated as 20 percent disabling. 2. Entitlement to an initial rating in excess of 10 percent for left side sciatic neuropathy. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from February 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issue of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The medical evidence of record shows that the veteran's diabetes mellitus is manifested by the need for Metformin and a restricted diet. 2. The medical evidence of record does not show that the veteran's service-connected diabetes mellitus is manifested by the need for restriction of activities, episodes of ketoacidosis or hypoglycemic reactions that required hospitalization, or two times per month visits to his diabetic care provider. 3. The evidence of record shows the veteran's left sided sciatic neuropathy is manifested by complaints of numbness and objective findings of normal motor strength and decreased sensation in the left lower extremity; therefore, moderate disability due to incomplete paralysis of the left leg sciatic neuropathy is not demonstrated. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 20 percent, for diabetes mellitus, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.14, 4.119, Diagnostic Code 7913 (2007). 2. Entitlement to an initial rating in excess of 10 percent, for left leg sciatic neuropathy, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Disability Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as 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). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, No. 05-2424 (Vet. App. Nov. 19, 2007). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). A. Increased Rating of Diabetes Mellitus The veteran contends that the RO should have increased his service-connected disability rating for diabetes mellitus. The veteran's diabetes mellitus is rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913, which contemplates diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent evaluation is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent evaluation is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Board has considered the full history of the veteran's disability in this case. The first reference for treatment of diabetes mellitus contained in the claims file occurs in a VA outpatient note dated in May 2002. At that time the veteran was treated with glucophage and dietary restrictions. In VA outpatient treatment records, dated from February 2003 to February 2006, the veteran was reported as being treated with Metformin for his diabetes mellitus. In a May 2004 VA outpatient nutritional progress note, the veteran's diet was reviewed and restricted to a diabetic specific diet. In June 2005, the veteran was afforded a VA Compensation and Pension (C&P) diabetes mellitus examination. The examiner indicated that the veteran has had a confirmed diagnosis of diabetes since May 2002. The veteran denied ketoacidosis and hypoglycemic reactions. He stated that he follows his diabetic diet strictly. The examiner reported that "[t]here is no evidence of restriction of daily living activities on account of diabetes." The examiner stated that the veteran was treated with Metformin tablets and did not have any anal pruritus. The veteran reported that he saw his diabetic care provider every three to five months. The veteran's diabetes mellitus was described by the examiner as controlled. The preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the veteran's diabetes mellitus. The veteran is treated with Metformin and a restricted diet. However, the evidence of record does not show that regulation of activities is required. Most recently, the July 2005 examination report indicated that the veteran did not have any restrictions on his daily living activities on account of diabetes and there was no evidence of any of the other rating criteria such as hypoglycemic reactions, ketoacidosis, hospitalizations or visits to a diabetic care provider two times per month. Accordingly, a disability rating in excess of 20 percent for diabetes mellitus, type II, is not warranted. B. Initial Rating of Left Side Sciatic Neuropathy The veteran claims that his initial disability rating for left side sciatic neuropathy is incorrect. He claims that his left side sciatic neuropathy is more severe and warrants a disability rating in excess of 10 percent. The veteran's left side sciatic neuropathy is rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which contemplates mild incomplete paralysis of the sciatic nerve. Moderate incomplete paralysis warrants an evaluation of 20 percent. An evaluation of 40 percent requires moderately severe incomplete paralysis. An evaluation of 60 percent requires severe incomplete paralysis with marked muscular atrophy. An evaluation of 80 percent requires complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The words "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. As noted at the beginning of the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The veteran was diagnosed with neuropathy in February 2005. In June 2005 the veteran underwent a private electrophysiological examination performed by Dr. G.J. Dr. G.J. found "a lower amplitude for left peroneal and left posterior tibial nerves, motor nerves." However, Dr. G.J. found that all other values for velocity, latency, and amplitude for all motor and sensory nerves studied to be normal. In June 2005 the veteran was afforded a VA C&P peripheral nerves examination in conjunction with his claim. The veteran reported that he had low back pain for the prior 10 years without irradiation with a 7 out of 10 intensity. The veteran stated that the pain occurred mostly when he lifting objects or when bending forward and that it was not relieved by medications or medicated patches. The veteran denied present sensory symptoms in his leg, however, he indicated that for the past five years he has had on and off numbness in his left leg which lasted for a few days and then resolved. The veteran reported that he is able to perform his yearly Puerto Rico Air National Guard training; however, activities such as changing a flat tire, running, or lawn mowing are limited due to back pain. The examiner reported the veteran's manual muscle strength to be 5/5 for every muscle tested. The veteran was noted to ambulate without the use of an assistive device. The examiner found no atrophy or fasciculations. The Romberg's test was negative and the straight leg raise test, of the left leg, was negative. The left sacral area was noted to be mildly tender when palpated. Decreased sensation to pinprick and light touch was noted in the left anterior thigh and big toe. The examiner commented on a private electophysiologic examination performed the same month and rendered the opinion that it showed low amplitude of peroneal and tibial nerves in the left side suggestive of old sciatica and that there was no evidence of active radiculopathy. The examiner diagnosed the veteran, by way of electrodiagnostic study, with sciatic nerve neuropathy on the left leg. In February 2006, a VA treatment note indicated that the veteran was having recurrent left leg numbness in the thigh area for six months. At that time the veteran was reported to ambulate with no apparent distress and no gross motor or sensory deficits were found. The preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the veteran's left side sciatic neuropathy. There is no evidence of any reduced strength or mobility of the veteran. The veteran's gait is normal and unassisted. The veteran does not demonstrate any signs of muscular atrophy or abnormal muscle tone and there are no impairments of the left foot due to the service-connected disability. Muscle strength, as measured in June 2005, was 5/5 for all muscles tested. The veteran's left leg sciatic neuropathy exhibits solely sensory manifestations and does not generally interfere with his activities. The veteran is able to complete his yearly Air National Guard training. Therefore, the veteran's left leg sciatic neuropathy most nearly approximates the criteria for mild incomplete paralysis and no more. The veteran's left leg sciatic neuropathy does not demonstrate moderate or moderately severe incomplete paralysis due to the solely sensory nature of his condition and its general lack of interference with his daily activities. In addition, the veteran does not demonstrate severe incomplete paralysis due to a lack of marked muscular atrophy as required for a 60 percent evaluation. Furthermore, he does not demonstrate complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, or flexion of the knee weakened or lost. Therefore, a rating in excess of 10 percent disabling is not warranted. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. Finally, as this issue deals with the rating assigned following the original claim for service connection, consideration has been given to the question of whether the application of "staged ratings" as enunciated by the Court, in the case of Fenderson, would be in order. However, the 10 percent rating has been in effect since the effective date of service connection for left leg sciatic neuropathy, and at no time has it been medically demonstrated that this disability has warranted any higher rating. Therefore, there is no basis for staged ratings in the present case. C. Extra-Schedular Ratings The Board finds that this matter need not be remanded to have the RO refer the veteran's claim to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of a extra-schedular ratings. The Board notes the above determination is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities, and there is no showing that the veteran's left leg sciatic neuropathy or diabetes mellitus reflect so exceptional or so unusual a disability picture as to warrant the assignment of higher evaluations on an extra-schedular basis, and indeed, neither the veteran nor his representative have identified any exceptional or unusual disability factors. See 38 C.F.R. § 3.321. In this regard, the Board observes that there is no showing the disabilities result in marked interference with employment. Moreover, his left leg sciatic neuropathy and diabetes mellitus have not required any, let alone, frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of these factors, the criteria for submission for assignment of extra-schedular ratings are not met. Thus, a remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not necessary. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in April 2005 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In regard to the veteran's claim of entitlement to an initial rating in excess of 10 percent for left side sciatic neuropathy, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran is challenging the initial evaluation assigned following the grant of service connection for left side sciatic neuropathy. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because notice was provided before service connection was granted, VA's duty to notify in this case has been satisfied. In regard to the veteran's claim of entitlement to an increased rating for diabetes mellitus, currently rated as 20 percent disabling, the Board notes that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the veteran that, to substantiate a claim, the veteran 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 veteran's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the veteran'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 veteran. Additionally, the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, 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 veteran 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. Id. at 43-44. The veteran was notified in a April 2005 VCAA letter that he could submit evidence showing his service-connected diabetes mellitus had increased in severity. The veteran was informed that evidence of an increase in severity could be submitted in the form of statements from his doctor containing physical and clinical findings, the results of laboratory tests or x- rays, and lay statements from individuals who could describe the manner in which the disability had become worse. The veteran was told to inform the RO of dates of treatment at VA facilities so those records could be obtained, and that if he had not been recently examined or treated, he could submit his own statement indicating the frequency and severity of symptoms and additional disability caused by the conditions. Additionally, the Board points out that the veteran received this notice prior to the initial AOJ decision in this matter. However, the April 2005 VCAA letter failed to provide general information about the applicable rating criteria. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show 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 veteran, see Vazquez-Flores, 22 Vet. App. at 48 ("[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, 22 Vet. App. at 46. In this case, the Board finds that any notice errors with respect to the information and evidence needed to substantiate an increased rating claim for diabetes mellitus are harmless error and did not affect the essential fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). The veteran was provided with the rating criteria for diabetes mellitus in the February 2006 SOC. Subsequently, although he had the opportunity to do so in the substantive appeal and by way of other documentation, he made no argument, or assertion with respect to the claim on appeal except to say that he disagreed with the decision. Based on the notices provided to the veteran, the Board finds that a reasonable person could be expected to understand from those notices, to include the notice letter, the rating decision and the statement of the case, what information or evidence was required for an increased rating to be granted. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records dated September 2001 to February 2006. The veteran submitted private treatment records of Dr. G.J. dated June 2005. The appellant was afforded a VA medical examination in June 2005. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an increased rating for diabetes mellitus, currently rated as 20 percent disabling, is denied. Entitlement to an initial rating in excess of 10 percent for left side sciatic neuropathy, is denied. REMAND The veteran seeks service connection for hypertension, to include as secondary to service-connected diabetes mellitus. The veteran contends that his hypertension has been permanently aggravated by his diabetes mellitus. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. However, where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); 38 C.F.R. § 4.2. The veteran was afforded a VA C&P hypertension examination in June 2005 in conjunction with his claim for service connection. The veteran reported that he was diagnosed with hypertension in 1999. The examiner diagnosed the veteran with arterial hypertension. The examiner rendered the opinion that the veteran's hypertension was not due to the veteran's service-connected diabetes mellitus because the veteran's diagnosis of hypertension in 1999 preexisted the veteran's diagnosis of diabetes mellitus in May 2002. The examiner, however, did not render an opinion on whether the veteran's hypertension has been permanently aggravated by the veteran's service-connected diabetes mellitus. Therefore, the claim must be remanded for the veteran to be afforded another VA C&P hypertension examination. The Board notes that the veteran indicated in his June 2005 C&P examination that he remains a member of the Puerto Rico Air National Guard. There is no record that any attempts have been made to associate the veteran's service medical records (SMRs) regarding his Air National Guard service with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Therefore, on remand attempts should be made to obtain and associate the veteran's SMRs regarding his service in the Air National Guard with the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should make the necessary requests for records for the veteran's SMRs for service in the Puerto Rico Air National Guard. If they are not available, that fact must be documented in the claims folder. 38 C.F.R. § 3.159(e). 2. Attempt to obtain VA medical treatment records pertaining to the veteran from the VA Medical Center in San Juan, Puerto Rico, since February 2006, and associate them with the claims file. Any additional pertinent records identified by the veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the veteran, and associated with the claims file. 3. After the above development is accomplished, schedule the veteran for an examination of his hypertension by an appropriately qualified VA examiner. Request that the examiner review the claims file and note review of the claims file in the examination report. Request that the examiner provide an evaluation of the veteran's hypertension and an opinion whether it is at least as likely as not (50 percent or greater possibility) proximately due to, caused by, or permanently aggravated by the veteran's service-connected diabetes mellitus. The examiner must provide a complete rationale for any stated opinion. 4. Thereafter, the RO should readjudicate the veteran's claim. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs