Citation Nr: 0815185 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 04-16 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder condition. 2. Whether new and material evidence has been submitted to establish entitlement to service connection for a left knee condition. 3. Entitlement to an increased rating for headaches with a history of sinusitis, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for bilateral hearing loss, currently noncompensable. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from November 1970 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal. The veteran appeared before the undersigned Veterans Law Judge and testified regarding his symptomatology in September 2007. A transcript is of record. The issue of whether new and material evidence has been submitted to establish entitlement to service connection for a left knee condition 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. A right shoulder condition was not manifested during the veteran's service, and was not compensably disabling within a year of separation from active duty. 2. There is no medical evidence that shows the veteran's headache disability is manifested by prostrating attacks occurring on an average of once a month over the last several months. 3. The veteran's service-connected bilateral hearing loss is currently manifested by a Level I hearing loss for the right ear and a Level III hearing loss for the left ear. CONCLUSIONS OF LAW 1. A right shoulder condition was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 2. The criteria for a disability rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2007). 3. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the claims, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. VA has a duty to notify a claimant and his representative, if any, of the information and evidence needed to substantiate a claim. This notification obligation was accomplished by way of a letter from the RO to the veteran dated in May 2003. This letter effectively satisfied the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate the claim; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran provide any evidence in his possession that pertains to his claims. Additionally, a March 2006 letter informed the veteran of how the RO assigns disability ratings and effective dates if a claim for service connection or an increased rating is granted and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). Second, VA has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim. The service treatment records, VA medical treatment records, and lay statements are associated with the claims file. The veteran was afforded VA examinations. See Charles v. Principi, 16 Vet. App. 370 (2002) (Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant]; contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the [VA] to make a decision on the claim."). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA 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. A letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the veteran in May 2003, prior to the initial RO decision that is the subject of this appeal. The letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. In addition, the veteran was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2006. Any questions as to the appropriate effective date to be assigned are moot as the claims have been denied. The VCAA letter sent to the veteran in May 2003 does not meet the requirements of Vazquez-Flores and is not sufficient as to content, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. The veteran was provided with correspondence regarding what was needed to support his claim. Specifically, in a June 2003 letter, the RO informed the veteran that it had requested copies of private medical treatment records and that it was his responsibility to ensure VA receipt of the records requested. In March 2006, the veteran was sent a letter that informed him how VA establishes disability ratings based on the diagnostic codes as published in 38 C.F.R. § Part 4 and how effective dates are assigned. The April 2004 statement of the case informed the veteran of the diagnostic codes assigned to his disabilities and what requirements were necessary in order to warrant an increased rating. A February 2006 supplemental statement of the case subsequently reiterated the diagnostic criteria needed for an increased rating. Based on the evidence above, the veteran can be expected to understand from the various letters from the RO what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claims as reflected in his statements, testimony and correspondence. Specifically, in March 2003, the veteran claimed that his service-connected disabilities had worsened and that if necessary, an examination should be scheduled to determine his current rating eligibility. In a March 2004 VA Form 9, the veteran stated that he would submit added hearing tests and evidence in support of his claim. In September 2007, the veteran presented testimony to the undersigned Veterans Law Judge, stating that the 10 percent disability rating did not reflect the severity of his headache condition. The veteran testified that it affected his ability to work, having a negative impact on his employment. He reported receiving documentation from VA to submit to his employer during a headache episode, he would not be able to work. He reported that when he had headaches, it left him incapacitated. He described the impact the headache disability had on his daily activities and employment. Further, the veteran described the impact his hearing loss had on his employment, to include loss of a promotion. He reported that his hearing loss affected his daily life and the feedback he received from his wife and family members. Based on the above, the veteran had actual knowledge with respect to the types of evidence needed to substantiate his claim. In sum, the notice deficiencies in this case do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. The veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claims. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. The Merits of the Claims Entitlement to service connection for a right shoulder condition. The veteran seeks service connection a right shoulder condition. Specifically, in a September 2007 Board hearing, the veteran testified that his right shoulder condition began while in-service after work detail in New Orleans in 1975. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied - the evidence clearly shows that although the veteran has a right shoulder disorder, it is related to an employment accident which occurred over 10 years after he was discharged from active service. . The benefit of the doubt rule provides that the veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for certain chronic diseases, such as arthritis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1133, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). It is upon the lack of a nexus between any current disability and the in-service injury that the claim for service connection for a right shoulder condition fails. The veteran's service treatment records indicated in July 1979 the veteran complained about his left shoulder. The service treatment records are negative for any complaints, treatment, or diagnosis of a right shoulder injury. In an October 1992 examination with Dr. FL, the veteran reported he injured his right shoulder while working at the post office. He was diagnosed with arthritis and arthralgia of the right acromioclavicular joint. The veteran underwent a resection of the acromioclavicular joint. In December 2001, VA treatment records indicated a right shoulder rotator cuff repair. In July 2002, VA treatment records indicated on-going shoulder pain. The examiner reported that the veteran was advised against surgery, however, the veteran wanted a second opinion. In a March 2003 medical report from Dr. KSB, the physician noted the veteran was working as a letter carrier at the United States Post Office, a position he held for the past 22 years, and that in October 1991, the veteran injured his right shoulder unloading a box which subsequently required surgery. In this case, there is no competent medical evidence of a nexus between the veteran's service and his claimed right shoulder condition, nor is there any competent medical evidence indicating a diagnosis of a right shoulder condition within one year of the veteran's separation from active duty. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). None of the medical evidence of record relates the veteran's claim of a right shoulder condition to any event or incident during active military duty. Nor is there any evidence of continuity of symptomatology. The first notation of a right shoulder condition associated with the claims file is a March 2003 claim for service connection. This claim occurred approximately 22 years after the veteran's separation from service. The first notation of an injury to the right shoulder is an October 1992 report of a shoulder injury while working at the post office, approximately 11 years after service. This gap in evidence constitutes negative evidence that tends to disprove the veteran's claim that the veteran had an injury in service that resulted in a chronic disability or persistent symptoms. See Forshey v. West, 12 Vet. App. 71, 74 (1998); aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Without evidence of a disability during service and either competent medical evidence of a nexus or continuity of symptomatology, service connection is not warranted. Moreover, presumptive service connection is not warranted because there is no competent evidence of a right shoulder condition within the first post-service year. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right shoulder condition and the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107, Gilbert v. Derwinksi, 1 Vet.App. 49 (1990). Entitlement to an increased rating for headaches with a history of sinusitis, currently evaluated as 10 percent disabling. The RO granted service connection for headaches in a December 1981 rating decision. At that time, the headaches were found to be 10 percent disabling under 38 C.F.R. § 4.124, Diagnostic Code 8100. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, as in this case, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. The Board must determine whether there is any other basis upon which an increased evaluation may be assignable. In this regard, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative of or overlapping; the Court has held that the veteran is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, at 262 (1994). Under Diagnostic Code 8100, migraine headaches, a noncompensable rating is assigned for less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. The highest or 50 percent rating may be assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124. The evidence of record consists of VA outpatient treatment records, VA examinations, and hearing testimony. When the evidence of record is reviewed in light of the schedular criteria set forth above, the Board finds that the veteran is not shown to warrant a higher compensable evaluation than 10 percent for migraine headaches. In January 2006, the veteran underwent a VA examination. The veteran reported he had headaches that lasted two months, then developed sharp pains over the right eyebrow which lasted 4-5 hours. He reported he averaged approximately 2-3 episodes per year but each episode could last 3-4 months at a time. The veteran was diagnosed with cluster headaches averaging two severe episodes per year with the same intensity but less often. His headaches were associated occasionally with blurred vision, nausea, and sensitivity to light and sound. A CAT scan of the veteran's sinuses was negative. VA medical treatment records from December 2005 to May 2007 are devoid of any complaints or treatment of headaches. In September 2007 the veteran appeared before the Board and testified that he worked with his headaches by adjusting his activities, and now got them very infrequently. He reported having a couple of episodes, but nothing that prevented him from going to work. He reported that when he had an incapacitating episode, it caused severe pain. The veteran stated that up until this year, he had headaches that lasted for approximately six months. When questioned by his representative as to how often per week, despite any adjustment of activities that he got headaches, the veteran reported that he had no problems this past year. Examining the evidence in light of the rating criteria, an increased evaluation for headaches is not warranted. In sum, while the veteran contends that the service-connected disorder has increased in severity, as a layperson he is only competent to report observable symptoms - not clinical findings which are applied to VA's Schedule for Rating Disabilities. Compare Espiritu v. Derwinski, 2 Vet. App. 492 (1992) and Massey v. Brown, 7 Vet. App. 204 (1994). The medical evidence of record reflects approximately two episodes per year and the veteran himself testified that he had no episodes this past year. Therefore, the preponderance of the evidence is against the claim for an increased evaluation for headaches. In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the veteran, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence of record does not present 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. In the absence of such factors, the Board finds that the criteria for referral for the assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Entitlement to an increased rating for bilateral hearing loss, currently noncompensable. Impaired hearing will be considered a disability only after threshold requirements are met. Once disability is established, levels of hearing loss are determined by considering the pure tone threshold average and speech discrimination percentage scores. 38 C.F.R. § 4.85(b), Table VI. Disability ratings are assigned by combining a level of hearing loss in each ear. 38 C.F.R. § 4.85(e), Table VII; Lendenmann v. Principi, 3 Vet. App. at 345 (1992) (assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered). Audiological examinations are conducted using controlled speech discrimination tests together with the results of the pure tone audiometry test. The horizontal lines in Table VI (in 38 C.F.R. § 4.86) represent nine categories of the percentage of discrimination based on controlled speech discrimination test. The vertical columns in Table VI represent at nine categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. The percentage evaluation is found from 38 C.F.R. § 4.86, Table VII, by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing and the vertical column appropriate to the numeric designation level for the ear having the poorer hearing. For example, if the better ear has a numeric designation level of "V" and the poorer ear has a numeric designation level of "VII," the percentage evaluation is 30 percent, and the Diagnostic Code is 6100. See 38 C.F.R. § 4.85(b), Diagnostic Codes 6100-6110 (2007). At a January 2006 VA examination, studies revealed the veteran's right ear had an average of 54 decibel loss, and the left ear showed an average 61 decibel loss. Speech discrimination was 92 percent for the right ear and 88 percent for the left ear. At a May 2007 VA examination, studies indicated no significant change in hearing since the previous January 2006 testing. Based on the foregoing findings, a review of 38 C.F.R. § 4.86, Table VI, shows at its worst, that the right ear is a Roman Numeral I and the left is a Roman Numeral III loss. These losses equate to a noncompensable evaluation under 38 C.F.R. § 4.86, Table VII. Hence, the veteran is currently and correctly evaluated with the noncompensable rating. Accordingly, the benefit sought on appeal is denied. ORDER Service connection for a right shoulder condition is denied. A rating in excess of 10 percent for headaches with a history of sinusitis is denied. A compensable rating for bilateral hearing loss is denied. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration of whether new and material evidence has been submitted to establish service connection for a left knee disability will be deferred for compliance with procedural due process requirements to the veteran, and this issue is REMANDED to the AMC/RO for action as described below. Kent v. Nicholson, 20 Vet. App. 1 (2006) The veteran filed a claim of service connection for a left knee condition which was denied in a December 1989 rating decision. The veteran was apprised of the rating decision, but he did not appeal. Thus, the denial is final, and the merits of the claim (i.e., whether service connection may be granted for the claimed knee disorder) may not be examined unless the veteran submits "new and material" evidence sufficient to reopen the claim. 38 U.S.C.A. § 7103(a); 38 C.F.R. § 20.1103. In March 2003, the veteran requested to reopen his claim of service connection for a left knee condition. Therefore, the veteran's current claim is one for the reopening of a previously denied claim and requires the submission of new and material evidence, under the definition of "material" as found in 38 C.F.R. § 3.156(a) as amended and applicable to claims to reopen filed on or after August 29, 2001. See 66 Fed. Reg. 45620 (2001). In May 2003, the RO advised the veteran of what evidence would substantiate his petition to reopen the claim, it did not advise him of the correct definition of "material" evidence as stated above. In a January 2004 rating decision, the RO denied the veteran's claim, using the previous definition of material as found in 38 C.F.R. § 3.156(a). The RO continued to incorrectly apply the previous version of 38 C.F.R. § 3.156(a) in its April 2004 Statement of the Case. Subsequent to the submission of additional evidence, the RO issued a Supplemental Statement of the Case. However, it made no mention of either definition of "material," either previously or currently applicable. In a July 2007 Supplemental Statement of the Case, the RO advised the veteran of the correct definition of "material" evidence to be applied to his claim. However, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held, in part, that VA's duty to notify a claimant seeking to reopen a claim included advising the claimant of the evidence and information needed to reopen the claim and notifying the claimant of the evidence and information needed to establish entitlement to the underlying claim for the benefit sought by the claimant. The Court further held that VA must, in the context of a claim to reopen, look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. The July 2007 Supplemental Statement of the Case is not sufficient to correctly apprise the veteran of what material evidence would substantiate his claim. It has been held that VA must advise the claimant of what evidence would substantiate a claim for benefits, prior to an adjudication of the claim and that post-adjudicatory advisements by way of Statements of the Case are not sufficient. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As no such notice has been provided to the veteran prior to the issuance of the rating decision, his new and material evidence claim for service connection for a left knee condition must be remanded. The AMC/RO will advise the veteran in accordance with the ruling in Kent, above. However, the veteran is advised that "new" evidence is that which was not previously of record. By "material" is meant that evidence which raises a reasonable possibility of substantiating the claim, and which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a) (2004). As previously, the credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007) and implementing regulations found at 38 C.F.R. § 3.159 (2007) is completed. In particular, the AMC/RO must notify the veteran of the information and evidence needed to substantiate his claim, and of what part of such evidence he should obtain and what part the Secretary will attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Charles v. Principi, 16 Vet. App. 370, 373-374 (2002) and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Apart from other requirements applicable under the Veterans Claims Assistance Act (VCAA), the AMC/RO will comply with the Kent ruling, and advise the veteran of the evidence and information that is necessary to reopen the left knee disorder new and material evidence claim on appeal as well as the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefits sought by the veteran. He should also be told to provide any evidence in his possession pertinent to the claim. 38 C.F.R. § 3.159 (2007). 3. The AMC/RO should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Thereafter, the AMC/RO should consider all of the evidence of record and re- adjudicate the veteran's claim. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 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 law and regulations considered pertinent to the service connection and new and material evidence issue currently on appeal. An appropriate period of time should be allowed for response. 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). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. 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. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs