Citation Nr: 1019563 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 08-09 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. 2. Entitlement to an initial compensable evaluation for a left groin scar. 3. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from March 1955 to March 1958 and from December 1958 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeals from a February 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board videoconference hearing in March 2010. The issues of entitlement to increased ratings for hearing loss and tinnitus were previously before the Board in November 2009 when they were remanded to afford the Veteran a videoconference hearing. The issue of entitlement to an initial compensable evaluation for hearing loss 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. VA will inform the Veteran if any further action is required on his part. FINDINGS OF FACT 1. The symptomatology associated with the left groin scar more nearly approximates a superficial scar which is painful on examination. 2. The current 10 percent evaluation assigned to the service-connected tinnitus disability is the maximum evaluation under VA rating criteria. CONCLUSIONS OF LAW 1. The criteria for assignment of an initial 10 percent evaluation, but no more, for the service-connected left groin scar, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1- 4.10, 4.14, 4.118, Diagnostic Code 7804 (2009). 2. The criteria for an initial evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code 6260 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). With regard to the left groin scar claim, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the criteria for entitlement to an increased rating. The discussions in December 2006 and May 2008 VCAA letters have informed the Veteran of the information and evidence necessary to warrant entitlement to an increased rating for the service-connected left groin scar. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements of 38 C.F.R. § 3.159(b)(1) have been met with regard to the increased rating claim for the left groin scar. The Board finds that all notice required by VCAA and implementing regulations was furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's decision came before complete notification of the Veteran's rights under the VCAA. It is arguable that the VCAA notice was not timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds, however, that any defect with respect to the timing of the VCAA notice in this case was harmless error for the reasons specified below. Subsequent to the rating decision on appeal, the RO did provide notice to the Veteran regarding what information and evidence was needed to substantiate the left groin scar claim and the Veteran has had the chance to submit evidence in response to the VCAA letters. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on the increased rating claim for the scar decided herein has been accomplished and that adjudication of the claim, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice 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 status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. See Dingess/Hartman, supra. In the present appeal, the Veteran was provided with notice of what types of information and evidence were needed to substantiate his claim in the VCAA letters and he was also provided with notice of the types of evidence necessary to establish an effective date or a disability evaluation for the left groin scar claim in the December 2006 VCAA letter. Additionally, the Board notes that this appeal arises from the grant of service connection for the a left groin scar where the Veteran has disagreed with the initial disability evaluation assigned. As a result of the grant of service connection and the assignment of a specific disability rating and effective date for the left groin scar, section 5103(a) notice was no longer required. See Dingess at 490 (2006). All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the Veteran with an appropriate VA examination for the increased rating scar claim. Physical examination was conducted in December 2006 and the symptomatology associated with the service-connected left groin scar was adequately reported for ratings purposes. There is no objective evidence indicating that there has been a material change in the severity of the service-connected disability since the Veteran was last examined in December 2006. 38 C.F.R. § 3.327(a). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions concerning the increased rating left groin scar claim has been met. 38 C.F.R. § 3.159(c) (4). With regard to the scar claim, the Board finds that the requirements of 38 C.F.R. § 3.159(c)(4) have been met. No additional pertinent evidence has been identified by the Veteran as relevant to the issue. Under the circumstances of this particular case, no further action is necessary to assist the Veteran. With regard to the claim of entitlement to an increased rating for tinnitus, the Court has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case the facts with regard to the tinnitus claim are not in dispute. Resolution of the Veteran's appeal is dependent on interpretation of the regulations pertaining to the assignment of disability ratings for tinnitus. As set out below, the Board has found that the Veteran is already receiving the maximum disability rating available for tinnitus under the applicable rating criteria. Therefore, because no reasonable possibility exists that would aid in substantiating the increased rating tinnitus claim, any deficiencies of VCAA notice or assistance with regard to the claim are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Competency and Credibility The appellant can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant as a lay person has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the appellant is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." The Court found the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the appellant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. General increased ratings criteria Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has long recognized that, when considering initial ratings as in the current case, the degree of impairment since the effective date of the grant of service connection must be considered, to include the possibility that a staged rating may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1998). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Entitlement to an initial compensable evaluation for a left groin scar. In October 2006, the Veteran submitted a claim of entitlement, in pertinent part, to service connection for left groin pain. In February 2007, the RO granted service connection for a left groin scar and assigned a non- compensable evaluation, effective October 31, 2006. The Veteran has disagreed with the initial disability evaluation assigned by the RO. During the pendency of this appeal, the criteria for evaluating disabilities of the skin were revised, effective October 23, 2008. The new rating criteria for evaluation of scars are applicable only to claims received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The Veteran's date of claim was in October 2006. As a result the regulations under 38 C.F.R. § 4.118 prior to October 23, 2008 are in effect. At the time of a VA examination which was conducted in December 2006, the Veteran reported that he had had occasional sharp pain in the area of the scar after surgery to repair a hernia in 1957. Physical examination revealed a scar present in the lower left abdominal quadrant measuring 14 centimeters by 3 millimeters. The scar was level with the skin. There was no tenderness, disfigurement, or ulceration. There was no adherence, instability or inflammation. There was no edema, tissue loss or keloid formation. There was no hypo pigmentation or hyper pigmentation and no abnormal texture. The examiner noted that the residuals of the left inguinal hernia repair consisted of occasional pain in the left inguinal area and an occasional left leg limp. The Veteran testified before the undersigned in March 2010 that his groin scar was tender and painful. Sometimes it was very severe but mostly it was a nuisance. He testified that some type of pain or discomfort was always present. The Veteran felt like the scar itself was painful and there was also a pain in his groin. Prior to October 23, 2008, under 38 C.F.R. § 4.118, Diagnostic Code 7800 applied to disfigurement of the head, face and neck. An increased rating is not warranted under this Diagnostic Code as the Veteran's scar is on his groin. Diagnostic Code 7801 applied to scars other than the head face or neck that were deep or that caused limited motion; for a 10 percent rating under this code the area had to exceed 6 square inches or 39 square centimeters. A deep scar is defined as one associated with underlying tissue damage. 38 C.F.R. § 4.118. An increased rating is not warranted under this Diagnostic Code as physical examination conducted at the time of the December 2006 VA examination indicated that there was no tissue loss. No other pertinent symptomatology was reported at the time of the examination. Diagnostic Code 7803 applies to scars that are superficial and unstable. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) defines a superficial scar as a scar that is not associated with soft tissue damage. This definition is essentially the same for Diagnostic Codes 7802 and 7804 except these codes specify "underlying soft tissue damage." Id. An increased rating is not warranted under Diagnostic Code 7803 as there is no evidence of record indicating that the service-connected scar is unstable. Physical examination in December 2006 indicated there was no ulceration of the scar and no other pertinent symptomatology was reported. Diagnostic Code 7802 applies when four requirements are met. The scar or scars must be 1) on a part of the body other than the head, face or neck; 2) must be superficial; 3) must not cause limited motion; and must cover an area of 144 square inches or 929 square centimeters or greater. If the criteria are met, a 10 percent rating is warranted. Id. While the service-connected left groin scar meets the criteria set out under 1-3 above, physical examination at the time of the December 2006 VA examination documented that the area of the service-connected scar was less than 929 square centimeters. The scar was measured as 14 centimeters by 3 millimeters. This is significantly less area than the required 929 square centimeters. An increased rating is not warranted under Diagnostic Code 7802. Diagnostic Code 7804 provides for a 10 percent evaluation when a scar is superficial and painful upon examination. The Board finds that an increased rating to 10 percent for the left groin scar, but no more, is warranted when the disability is evaluated under Diagnostic Code 7804. While the examiner who conducted the December 2006 VA examination found that there was no tenderness on physical examination, the Veteran has provided testimony indicating that his groin scar is continuously painful. The appellant can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds no reason to question the veracity of the symptomatology reported by the Veteran. Additionally, the examiner who conducted the December 2006 VA examination opined that the residuals of the left inguinal hernia repair consisted of occasional pain in the left inguinal area. The combination of the Veteran's testimony regarding a painful scar and the finding by the examiner who conducted the December 2006 VA examination that the residuals of the hernia repair includes occasional pain leads the Board to conclude that the symptomatology associated with the service-connected left groin scar more nearly approximates a 10 percent evaluation under Diagnostic Code 7804 during the entire appeal period. A 10 percent evaluation is the schedular maximum under this Diagnostic Code. A staged rating is not warranted, as the severity of the disability has not varied during the appeal period. Diagnostic Code 7805 states that other scars should be rated on limitation of function of the affected part. Id. In the current case, there is no evidence of record indicating that the service-connected left groin scar is productive of any limitation of motion of any body part. An increased rating is not warranted under this Diagnostic Code. An increased rating based on the presence of an underlying hernia is not warranted. Physical examination conducted at the time of the December 2006 VA examination demonstrates that there was no inguinal hernia, ventral hernia or femoral hernia present at that time. There is no other evidence of record which indicates that the Veteran currently experiences a hernia due to active duty. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected left groin scar is inadequate. A comparison between the level of severity and symptomatology of the Veteran's scar with the established criteria found in the rating schedule for evaluation of scars shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his left groin scar. In fact there is no evidence of record indicating that the Veteran was ever hospitalized during the appeal period for a left groin scar. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. There is nothing in the record which suggests that the groin scar markedly impacted his ability to perform his job. The Veteran had been retired from employment for some time prior to submission of his claim. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the service-connected left groin scar causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Entitlement to an initial rating in excess of 10 percent for tinnitus. In October 2006, the Veteran submitted a claim of entitlement, in pertinent part, to service connection for tinnitus. In February 2007, the RO granted service connection for tinnitus and assigned a 10 percent disability evaluation, effective October 31, 2006. The Veteran has appealed the initial disability evaluation assigned for the tinnitus. Under 38 C.F.R. § 4.87, Diagnostic Code 6260, recurrent tinnitus warrants a maximum 10 percent rating. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25(b) and Diagnostic Code 6260 limit a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral). The Veteran is already receiving the schedular maximum under Diagnostic Code 6260. There is no legal basis upon which to award a higher schedular disability rating. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service- connected tinnitus is inadequate. A comparison between the level of severity and symptomatology of the Veteran's tinnitus with the established criteria found in the rating schedule for evaluation of tinnitus shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required any hospitalization during the appeal period for tinnitus. Additionally, there is not shown to be evidence of marked interference with employment due to the disability. There is nothing in the record which suggests that the tinnitus markedly impacted his ability to perform his job. The Veteran had been retired from employment for some time prior to submission of his claim. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the service-connected tinnitus causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial 10 percent rating, but no more, for the service-connected left groin scar is granted during the entire appeal period, subject to the laws and regulations governing monetary awards. A rating in excess of 10 percent for service-connected tinnitus is not warranted. REMAND The Veteran is claiming entitlement to an initial compensable evaluation for hearing loss. The last time the disability was evaluated by VA for compensation and pension purposes was in January 2007. The Veteran has submitted copies of private audiological evaluations which were conducted in July 2007 and March 2010. A review of the graphical representation of the audiology evaluations appears to demonstrate some increase in hearing loss disability greater than shown in January 2007 but the Board is not permitted to interpret the data further. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (which holds that neither the Board nor the RO may interpret graphical representations of audiometric data). The Board finds therefore, that there is some evidence of record which indicates that the Veteran's service-connected hearing loss may have increased in disability subsequent to the time of the January 2007 VA examination. The Board finds that the Veteran should be afforded a current VA examination to determine the extent of the service-connected hearing loss. The Board further notes that the RO has not addressed the results of the July 2007 VA examination in a statement of the case or supplemental statement of the case. The RO must issue a supplemental statement of the case which addresses this evidence. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for hearing loss. After securing any necessary releases, obtain any records identified by the Veteran which have not already been associated with the claims file to the extent possible. 2. Afford the Veteran the opportunity to obtain and submit reports of the July 2007 and March 2010 graphical date in a form which may be used to rated his bilateral hearing loss. Provide him the criteria the audiometric data must meet to be adequate for rating purposes. 3. Following completion of the above, schedule the Veteran for VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. The claims folder should be made available to the examiner for review of the pertinent documents therein in connection with the examination. The report should reflect that such a review was conducted. All appropriate testing, to include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test, should be conducted. The examiner must describe fully the functional effects caused by the Veteran's service- connected bilateral hearing loss. 4. After completion to the extent possible of the directed development, re- adjudicate the Veteran's claim of entitlement to an increased initial rating for his service-connected hearing loss. If the benefit sought on appeal remains denied, issue an appropriate supplemental statement of the case and, after allowing an appropriate period of time to respond, forward the case to the Board for final adjudication. The supplemental statement of the case must address the report of the July 2007 private audiological evaluation. The appellant and his representative have 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. 2009). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs