Citation Nr: 1120664 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 08-22 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II (DM). 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for bilateral carpal tunnel syndrome. 4. Entitlement to service connection for pseudofolliculitis barbae (PFB). 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for atrial fibrillation. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1969 to July 1992. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. This matter was previously before the Board in January 2011, at which time it was remanded for the scheduling of a Travel Board hearing. In conjunction with the Board remand, the Veteran was scheduled for the requested hearing on April 20, 2011. The Veteran was notified of this hearing in a March 2011 letter, The Veteran did not report for the scheduled hearing and has not shown good cause for his failure to appear. His request for a hearing is considered withdrawn. 38 C.F.R. § 20.704(e) (2010). The issues of service connection for PFB, hypertension, and atrial fibrillation are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Any current DM is not of service origin. 2. Any current sleep apnea is not of service origin. 3. Any current bilateral carpal tunnel syndrome is not of service origin. CONCLUSIONS OF LAW 1. DM was not incurred in or aggravated by service, nor may it be presumed to have been incurred or aggravated during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1131, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2010). 2. Sleep apnea was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. 3. Bilateral carpal tunnel syndrome was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit)(as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA) Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), 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 2006. 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; and (3) informing the Veteran about the information and evidence he was expected to provide. The May 2006 letter advised the Veteran of how VA assigns disability ratings and effective dates and complies with the holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). The letter was also sent prior to the original determination. Second, VA has a duty to assist a Veteran in obtaining evidence necessary to substantiate a claim. All available service treatment records and VA treatment records have been associated with the claims file. The Veteran, in his July 2008 substantive appeal, indicated that he was awaiting additional records. To date, no further records have been received. Moreover, the Veteran's representative, in his July 2010 written argument, made no reference to additional evidence. As it relates to the issues of service connection for sleep apnea, DM, and bilateral carpal tunnel syndrome and the necessity for an examination, in determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). An examination is not warranted under 38 U.S.C. § 5103A(d) because there is no competent evidence that the Veteran's current sleep apnea, DM, or bilateral carpal tunnel syndrome are related to service and there is other sufficient medical evidence of record to make a decision. A VA medical examination is not necessary. Therefore, no further action is necessary to assist the claimant with the claim. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide his claim. The Veteran was scheduled for a Travel Board hearing and failed to appear without good cause. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A.§§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. see Grover v. West, 12 Vet. App. 109, 112 (1999). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). 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"). Chronic diseases, such as DM, will be presumed to have been incurred in service if it had become manifest to a degree of ten percent or more within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2011. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "Persian Gulf veteran" is one who served in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 C.F.R. § 3.317. A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi-symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic. The 6 month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2),(5). Compensation shall not be paid under 38 C.F.R. § 3.317 if: (1) the undiagnosed illness was not incurred during active service in the Southwest Asia Theater of Operations during the Persian Gulf War; or (2) the undiagnosed illness was caused by a supervening condition or event that occurred between your most recent departure from service in the Southwest Asia Theater of Operations during the Persian Gulf War and the onset of the illness; or (3) the illness is the result of willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). With claims for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317, a veteran is not required to provide competent evidence linking a current disability to an event during service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). When determining whether a qualifying chronic disability became manifest to a degree of 10 percent or more, the Board must explain its selection of analogous Diagnostic Code. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular veteran's case does not preclude compensation under 38 C.F.R. § 3.317. VAOPGCPREC 8-98. As the Veteran has been diagnosed as DM, sleep apnea, and bilateral carpal tunnel syndrome, he does not currently have an undiagnosed illness. Thus, the provisions of 3.317 are not for application. DM A review of the Veteran's service treatment records reveals that there were no complaints or findings of DM during service. There were also no complaints or findings of DM in close proximity to service, to include no complaints or findings of DM at the time of the Veteran's October 1992 VA general medical examination. Treatment records associated with claims folder reveal that the first objective medical findings of DM were in 2005. In a September 2005 treatment record, the Veteran was reported to have had non-insulin dependent DM since 1999. As to service connection for DM, when considering in-service incurrence, service treatment records fail to demonstrate any complaints or treatment referable to DM. Next, post-service evidence does not reflect symptomatology associated with DM until many years after discharge. The Veteran did not complain of, nor were there findings of, DM at his October 1992 VA examination, with VA treatment records not revealing a diagnosis of DM until 2005, with a notation in the treatment records that the Veteran was first found to have DM in 1999. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran was competent to report symptoms because this requires only personal knowledge as it came to him through his senses. Layno, 6 Vet. App. at 470. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Veteran's reported history of continued symptomatology since active service is not credible. The Veteran did not have any complaints or findings relating to DM during service and there were no findings of DM at the time of the October 1992 VA examination. The record reflects a multi-year gap between discharge from active duty service and initial finding of DM, which was noted to have been diagnosed in 1999, in a 2005 VA treatment record. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). For the above reasons, continuity has not here been established. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. There is no competent medical opinion of record demonstrating a relationship between the Veteran's current DM and his period of service or the one year presumptive period following service. The Veteran was asked to submit such information and has not done so to date by mail, through the Veteran's representative nor from a Board hearing for which the Veteran was scheduled. The Board has also considered the Veteran's statements asserting a nexus between his DM and active duty service. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. In sum, the preponderance of the evidence weighs against a finding that the Veteran's current DM developed in service, or the one year period following service, or is due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Sleep Apnea As to service connection for sleep apnea, when considering in-service incurrence, service treatment records fail to demonstrate any complaints or treatment referable to sleep apnea. Next, post-service evidence does not reflect symptomatology associated with sleep apnea until many years after discharge. The Veteran did not complain of, nor were there findings of, sleep apnea at his October 1992 VA examination, with VA treatment records not revealing a diagnosis of sleep apnea until 2005. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. In this case, the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Again, the Veteran did not have any complaints or findings relating to sleep apnea during service and there were no findings of sleep apnea at the time of the October 1992 VA examination; and there is a multi-year gap between discharge from active duty service and the initial findings of sleep apnea in a 2005 VA treatment record. For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. Service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. However, there is no competent medical opinion of record demonstrating a relationship between the Veteran's current sleep apnea and his period of service - independent of his now-rejected account of continuity of symptoms. As noted above, the Veteran was asked to submit such information and has not done so to date. As noted above, the Veteran is not competent to address the etiology of his current sleep apnea in the present case. In sum, the preponderance of the evidence weighs against a finding that the Veteran's current sleep apnea developed in service or is due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Bilateral Carpal Tunnel Syndrome As to service connection for bilateral carpal tunnel syndrome, the service treatment records fail to demonstrate any complaints or treatment referable to bilateral carpal tunnel syndrome. Post-service evidence does not reflect symptomatology associated with bilateral carpal tunnel syndrome until many years after discharge. The Veteran did not complain of, nor were there findings of, bilateral carpal tunnel syndrome at his October 1992 VA examination. While the Veteran complained of aching in his wrist and loss of grip with heavy work at the time of the examination, range of motion was free and full. There were no findings of bilateral carpal tunnel syndrome made at that time. VA treatment records associated with the claims folder do not reveal a diagnosis of carpal tunnel syndrome until 2005. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Again, the Veteran did not have any complaints or findings relating to carpal tunnel syndrome during service and there were no findings of carpal tunnel syndrome at the time of the October 1992 VA examination. The multi-year gap between discharge from active duty service and the initial findings of carpal tunnel syndrome in a 2005 VA treatment record are again noted. As such, continuity has not here been established, either through the clinical record or through the Veteran's own statements. As noted above, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. There is no competent medical opinion of record demonstrating a relationship between the Veteran's current carpal tunnel syndrome and his period of service. The Veteran has been asked to submit such information and has not done so to date, either through mailed submission or via the hearing for which he was scheduled and failed to appear. The Veteran is not competent to address the etiology of his current carpal tunnel syndrome. In sum, the preponderance of the evidence weighs against a finding that the Veteran's current carpal tunnel syndrome developed in service or is due to any event or injury in service. Therefore, the preponderance of the evidence is against the claim and the benefit of the doubt rule is not applicable. ORDER Service connection for DM is denied. Service connection for sleep apnea is denied. Service connection for bilateral carpal tunnel syndrome is denied. REMAND As it relates to the claim of service connection for PFB, the Veteran was treated for and diagnosed with PFB on numerous occasions while in service. With regard to the claims of service connection for hypertension and atrial fibrillation, at the time of the Veteran's October 1992 VA general medical examination, he was noted to have blood pressure readings of 140/90 when sitting, 160/100 when in the recumbent position, 150/100 in the standing position, 160/80 when sitting after exercise, and 140/90 two minutes after exercise. The examiner did not address the Veteran's elevated blood pressure readings at that time. VA treatment records associated with the claims folder indicate that the Veteran has now been diagnosed as having both atrial fibrillation and benign essential hypertension. Under the Veterans Claims Assistance Act, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will schedule the Veteran for a VA examination to determine whether the Veteran currently has hypertension and atrial fibrillation caused or aggravated by any incident of active military service. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, will be reviewed by the examiner in conjunction with the examination, and the examiner will acknowledge this review in any report generated as a result of this remand. b. The examiner must respond to the inquiries: (i). Given the medical and factual history as recorded in the Veteran's claims folder and his service treatment records, did the Veteran develop hypertension or atrial fibrillation during, or within one year of his discharge from active service in July 1992? (ii) Given the medical and factual history as recorded in the Veteran's claims folder and his service treatment records, is there medical or lay evidence that are characteristic manifestations of hypertension or atrial fibrillation either in service, within one year of service, or shortly thereafter? Complete detailed rationale should be provided for the opinion. 2. The RO/AMC will schedule the Veteran for a VA examination to determine whether the Veteran currently has PFB caused or aggravated by any incident of active military service. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, will be reviewed by the examiner in conjunction with the examination, and the examiner will acknowledge this review in any report generated as a result of this remand. b. The examiner must respond to the inquiries: (i). Given the medical and factual history as recorded in the Veteran's claims folder and his service treatment records, is any current PFB, if found, related to the Veteran's period of service? Complete detailed rationale should be provided for the opinion. 3. The Veteran must be advised in writing that it is his responsibility to report for the VA examinations, to cooperate with the development of his claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). If the Veteran does not report for any ordered examination, documentation must be obtained that shows that notice scheduling the examination was sent to his last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. To help avoid future remands, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the remaining issues on appeal. The Board calls the RO/AMC's attention to the provisions of 38 C.F.R. § 3.307(c) providing that no presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. 38 C.F.R. § 3.307(c). If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs