Citation Nr: 1037396 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 08-38 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a respiratory disorder as a result of asbestos exposure. 2. Entitlement to service connection for a right ankle disorder. 3. Entitlement to service connection for right shoulder bursitis. 4. Entitlement to service connection for a left ankle disorder. 5. Entitlement to service connection for coronary artery disease, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (also referred to as the appellant or claimant) ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served in the Navy from February 1948 to January 1952, and in the Coast Guard from November 1955 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) "Tiger Team," located at the Regional Office (RO) in Cleveland, Ohio, which denied service connection for a respiratory disability, a right ankle sprain, right shoulder bursitis, a left ankle disability, coronary artery disease, to include as secondary to PTSD, and hypertension; denied the Veteran's an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD); and denied individual unemployability (TDIU). In a September 2008 Notice of Disagreement (NOD), the Veteran specifically expressed disagreement only with the RO's decisions regarding the respective claims for service connection for a respiratory disability, a right ankle sprain, right shoulder bursitis, a left ankle disability, and coronary artery disease, to include as secondary to PTSD, and an increased rating in excess of 50 percent for PTSD. As the Veteran did not file an NOD indicating disagreement with the RO's respective denials of service connection for hypertension and entitlement to a TDIU in a timely fashion, these claims are not in appellate status and are not before the Board. 38 U.S.C.A. § 7105 (West 2002). In December 2007, the RO issued a Statement of the Case (SOC). Subsequently, in December 2008, the Veteran filed a substantive appeal to the Board, specifically limiting his appeal to the respective issues of service connection evaluated in this document. As the Veteran did not appeal the RO's denial of an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD) in a timely fashion, the issue is not in appellate status and is not before the Board. Id. In July 2010, the Veteran testified at a hearing before the Board in Roanoke, Virginia (Travel Board hearing). A transcript of that hearing is of record. In August 2010, after the Certification of the Appeal to the Board, the Veteran submitted additional evidence with a waiver of consideration by the agency of original jurisdiction (AOJ). The respective issues of service connection for a respiratory disability as a result of asbestos exposure, right shoulder bursitis, a left ankle disability, and coronary artery disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran has sustained a right ankle sprain during service; however, he currently does not have a right ankle disability. CONCLUSION OF LAW The criteria for service connection for a right ankle disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Duty to Notify VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) held in Dingess v. Nicholson, 19 Vet. App. 473 (2006), 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) the Veteran's status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the 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. Id. at 486. This notice must also inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. A December 2007 VCAA notice substantially satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, the RO informed the Veteran about the information and evidence not of record that was necessary to substantiate his claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Dingess regarding the establishment of ratings and effective dates. Also, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection and, therefore, no rating or effective date will be assigned. Also, the evidence does not show, nor does the Veteran contend, that any notification deficiencies, with respect to either timing or content, have resulted in prejudice. The record raises no plausible showing of how the notice provided affected the essential fairness of the adjudication. Duty to Assist The Board finds that all necessary assistance has been provided to the Veteran. The evidence of record indicates that VA acquired the Veteran's VA, private, and service treatment records to assist the Veteran with his claims. As will be explained in the remand portion below, the Veteran's Navy service treatment records are missing from the record of evidence. Also, the record of evidence contains no indication that the RO attempted to acquire these treatment records and associate them with the claims file. However, as the record contains no post-discharge medical evidence indicating diagnosis or treatment for a right ankle disability and the Veteran testified that he does not have such a disability, a grant of service connection for a right ankle disability is precluded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding that in the absence of proof of present disability there can be no valid claim). Therefore, the Board will not remand this claim to allow for procurement of these records as it would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Veteran was not afforded a VA examination or VA medical opinion regarding his claim for service connection for a right ankle disability. In this regard, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), stated that an examination is required when (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Board concludes an examination is not needed in this case with regard to this claim. In this decision, the Board finds that the medical evidence that is of record indicates that the Veteran does not have a right ankle disability. Moreover, at the July 2010 Board personal hearing, the Veteran denied that he had such a disability. Because there is no claimed current disability to which a competent medical opinion could relate an in-service injury or disease of the right ankle, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). For these reasons, the Board finds that, even under the low threshold of McLendon, an examination with medical opinion is not required here. Regarding the July 2010 Board personal hearing, in Bryant v. Shinseki, --- Vet. App. ----, No. 08-4080 (Jul. 1, 2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the Acting Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the July 2010 Board personal hearing, when questioned by his representative, the Veteran reported that his right ankle did not bother him. When further questioned about limitation of motion or pain in the right ankle, the Veteran testified that only his left ankle caused him difficulty. The Veteran then proceeded to testify as to how he incurred a left ankle disorder during service, how he currently had a left ankle disorder, and how he believed that this disorder was related to service. The Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate a claim for benefits and affirmed that he did not have a current right ankle disorder, the Board finds that there was no need to explain the issues and that there was no overlooked evidence. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.306 (2009). To establish service connection, generally, there must be (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A disorder also may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain disabilities, including arthritis and hearing loss, are presumed service connected if they manifest to a compensable degree within one year of service. 38 C.F.R. §§ 3.307, 3.309 (2009). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background Reviewing the evidence of record, in September 1957 service treatment records, examiners indicate treating the Veteran for a right ankle sprain. After six days of in-patient treatment, the Veteran was discharged for duty. Subsequent service treatment records do not include any notation indicating diagnosis or treatment for a right ankle disability. Service medical examination reports, dated from May 1959 through August 1966, indicate that the Veteran's lower extremities were normal upon examination. In a June 1967 service treatment record, indicating an examination upon discharge from service, the Veteran's extremities are noted to have no cyanosis, no edema, and good motor strength. Post-discharge treatment records do not contain any notations indicating diagnosis or treatment for a right ankle disorder. In a September 2008 statement, the Veteran reported that his right ankle still gave him "trouble." He noted that he now had to use a walker. At the July 2010 Board personal hearing, the Veteran testified that his right ankle did not bother him. He further stated that he did not feel any pain in the ankle and did not experience any limitation of motion of the ankle. He insisted that the pain was in his left ankle. (Hearing Transcript, pages 11-12). Service connection Analysis After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence weighs against a finding of service connection for a right ankle disability. The Board notes that the Veteran sprained his right ankle during service. However, the evidence also indicates that this injury was not chronic in service as subsequent service medical examinations indicated that the Veteran's ankle was normal. Further, post-discharge treatment records contain no notation indicating a diagnosis or complaint of a right ankle injury. Therefore, the evidence indicates that the disorder was not continuous after service. Finally, the Board finds that the weight of the evidence indicates that the Veteran does not have a current right ankle disability. Although the Veteran has indicated that the right ankle gave him "trouble" in a September 2008 statement, at the subsequent July 2010 Board personal hearing, the Veteran testified that his right ankle did not "bother" him. He stated that he had no pain, limitation of motion, or any other symptoms associated with the right ankle. As the lay and medical evidence consistently reflects that the Veteran does not have any current right ankle disability, a grant of service connection for a right ankle disorder is precluded. Brammer, 3 Vet. App. at 225 (finding that in the absence of proof of present disability there can be no valid claim). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for right ankle disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a right ankle disorder is denied. REMAND The Board finds that additional development is required before the remaining issues on appeal are ripe for adjudication upon the merits. 38 C.F.R. § 19.9 (2009). The Veteran's Navy service treatment records are missing from the claims file. In a September 2008 statement, the Veteran reported that these records did not exist because they were destroyed in a fire in 1954. However, as this has not been confirmed, the RO made needs to document attempts to procure these records. Therefore , the AMC/RO should make reasonable attempts to obtain and associate with the claims file all service treatment records for the Veteran's period of service in the Navy. See 38 U.S.C.A. § 5103A(b)(c) (West 2002 & Supp. 2009); The Veteran has contended that he was exposed to asbestos while working in a ship's engine room during service in the Navy. At the July 2010 Board personal hearing, the Veteran testified that, as part of his duties, he had to replace asbestos-laden pipes aboard ship. He recalled that, often, he would awaken in the morning to find his blanket covered with asbestos. Although he reported that he currently was not being treated for a respiratory disability, he stated that he would experience symptoms of pneumonia twice a year. (Hearing Transcript, pages 3-7). Although the claims file does not contain any treatment records regarding pneumonia, the record of evidence indicates that, in March 2007, the Veteran was treated for acute bronchitis which he believed to be related to asbestosis. Also, in a January 2007 VA treatment record, the examiner noted a small calcified density at the base of the Veteran's right lung. The Board notes that, during the hearing, the Veteran testified that he had been involved in a lawsuit based on asbestos exposure against the ship manufacturers. In testifying about his disorder, he mentioned that a civilian doctor in Norfolk, Virginia had told him that he had asbestosis. When asked for the name of that doctor, he indicated that his lawyer would have it. (Hearing Transcript, pages 4-5). The Board notes that the record does not contain any records regarding the lawsuit or any private treatment records indicating a confirmed diagnosis of asbestosis. As all records regarding treatment for the Veteran's asbestos exposure are relevant to the Veteran's claim, the AMC/RO should obtain and associate with the claims file all pertinent evidence relating to the evaluation or treatment of a lung disability, to include any and all and any all treatment records from the above- mentioned private examiner in Norfolk. Also, as any non- confidential records regarding the Veteran's lawsuit might contain pertinent information regarding the Veteran's lung disability, the AMC/RO should seek to obtain any pertinent records from the lawsuit to assist the Veteran with his claim. Also, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon, 20 Vet. App. at 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran has presented credible lay evidence of asbestos exposure during service. Also, the record contains post- discharge treatment records indicating a recent respiratory disorder, and X-ray evidence indicating a potential lung anomaly. Therefore, the Board finds that VA must provide a medical examination to determine if the Veteran has any respiratory disability related to in-service exposure to asbestos. Id. Also, the service treatment records indicate in-service treatment for right shoulder bursitis in 1962. In a September 2008 statement, the Veteran reported that he has experienced a continuous right shoulder disorder since discharge. He indicated that, during flare-ups, his shoulder would "lock up" and he would be unable to use it. He stated that, as a result, he had to learn to drive and work with his left hand. At the July 2010 Board personal hearing, the Veteran testified that, due to a right shoulder disorder, he was unable to use his right arm for activities such as shaving. (Hearing Transcript, page 18). As there is in-service medical evidence indicating treatment for right shoulder bursitis and credible testimony provided by the Veteran of a current right shoulder disorder, the Board finds that VA must provide a medical examination to determine the nature and etiology of any current right shoulder disorder. Id. In a September 2008 statement, the Veteran reported that, during service on a naval vessel in 1950, he sprained his left ankle and burned his left leg on an uninsulated steam line. (Italics for emphasis). He also recalled falling through a misplaced deck plate, twisting his left knee and cracking its cartilage. Also, in a September 1957 service treatment record, an examiner reported treating the Veteran for swelling of the right ankle and a sprain of the left foot. In a December 2007 VA treatment record, the Veteran sought treatment for pain in his left ankle. The examiner noted that the Veteran walked at the time with a shuffling gait. In a March 2010 X-ray report, the examiners noted a slight calcification to the posterior tibial artery, and moderate spurs to the superior and inferior surfaces of the calcaneus. In a January 2008 VA treatment record, the examiner noted that the Veteran was still having pain in his left ankle and that exercise had not improved the symptomatology. In a September 2008 statement, the Veteran's reported that he had experienced a chronic left ankle disability after his discharge from service. He indicated that, as far back as 1975, this ankle disability would cause him to limp and fall. At the July 2010 Board personal hearing, the Veteran testified that, since the 1957 incident, his left foot would twist upon contact with rough services, causing him to collapse. (Hearing Transcript, pages 23-24). Having reviewed this evidence, the Board notes that the service treatment records do not contain any record indicating treatment for a left ankle disorder. However, as the Veteran has presented credible lay evidence of the existence of a left ankle disorder existing since service, and the claims file contains recent medical records involving treatment for left ankle pain, the Board finds that, under the low threshold of McLendon, VA must provide a medical examination to determine if the Veteran has a current left ankle disability related to any incident of service. Id. Finally, current treatment records indicate that the Veteran exhibits a history of coronary artery disease. The Veteran contends that his heart disability has been either caused or aggravated by his service-connected posttraumatic stress disorder (PTSD) or his respiratory disorder related to asbestosis. As treatment records indicate treatment for a heart disorder and the Veteran has made credible statements indicating a relationship between his heart disability and his service-connected PTSD, the Board finds that the VA must provide a medical examination to determine the nature and etiology of the Veteran's coronary artery disease. Id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The AMC/RO should review the record and ensure compliance with all notice and assistance requirements set forth in the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159. 2. The AMC/RO should request that the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for his respiratory disability, to include the private physician in Norfolk he mentioned at his July 2010 Board hearing. The Veteran should also provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for his respective right shoulder, left ankle, and heart disabilities. After securing the necessary releases, the AMC/RO should attempt to obtain copies of pertinent treatment records identified by the appellant not currently included in the claims file. 3. The AMC/RO should request that the Veteran allow for the authorization and release of any non-confidential documents related to his lawsuit against the manufacturer of the Naval vessel on which he claims to have been exposed to asbestos. 4. The AMC/RO should attempt to locate and procure any missing service treatment records by contacting the National Personnel Records Center (NPRC), and any other appropriate records depository. 5. After the above is accomplished, the AMC/RO should schedule the Veteran for a VA lung disorders examination to determine whether he incurred a respiratory disability in service, to include asbestosis, as a result of asbestos exposure. The VA examiner is asked to provide an opinion as to whether it is as likely as not (i.e. a 50 percent or greater probability) that a respiratory disability is medically related to the Veteran's active military service, including as due to exposure to asbestos in service. The VA examiner should comment on any post- service exposure to asbestos, taking into account the Veteran's employment history. The relevant documents in the claims file should be made available to the examiner, and the examiner should review all relevant documents in the claims file. Any opinion expressed in the examination report should be accompanied by a written rationale with reference to evidence in the claims file and/or sound medical principles. 6. The AMC/RO should schedule the Veteran for a VA orthopedic examination to determine whether he incurred a left ankle or right shoulder disability in service. The VA examiner is asked to offer the following opinions: a. Is it at least as likely as not (i.e. a 50 percent or greater probability) that a left ankle disorder is medically related to the Veteran's active military service? b. Is it at least as likely as not (i.e. a 50 percent or greater probability) that a right shoulder disorder is medically related to the Veteran's active military service? The entire claims file should be made available to the examiner, and the examiner should review all relevant documents in the claims file. Any opinion expressed in the examination report should be accompanied by a written rationale with reference to evidence in the claims file and/or sound medical principles. 7. The Veteran should be scheduled for a VA examination for the purpose of determining the diagnosis, likely time of onset, and etiology of any heart disability, to include coronary artery disease. Following a review of the relevant medical evidence, a physical examination and any necessary testing, the examiner is asked to offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any heart disability began in service or was caused or aggravated by either PTSD or a respiratory disability. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is further advised that aggravation is defined for legal purposes as a worsening of the underlying condition beyond its natural progression versus a temporary flare- up of symptoms. A rationale should be provided for any opinion or conclusion expressed. If the examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e. without resorting to speculation, it should be so stated. 8. Following the completion of the requested actions, the AMC/RO should then re-adjudicate the Veteran's claims. In doing so, the AMC/RO should consider all evidence. If the benefits on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case, and should be afforded an applicable opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim(s). 38 C.F.R. § 3.655 (2009). The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs