Citation Nr: 1124121	
Decision Date: 06/24/11    Archive Date: 06/29/11

DOCKET NO.  09-26 405	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Whether there is new and material evidence to reopen a claim for service connection for a respiratory disorder.

2.  Entitlement to service connection for a respiratory disorder.

3.  Entitlement to service connection for coronary artery disease.

4.  Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD).

5.  Entitlement to a rating higher than 20 percent for Type II Diabetes Mellitus with erectile dysfunction.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to February 1969.

This appeal to the Board of Veterans' Appeals (Board) is from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In this decision the Board is granting service connection for coronary artery disease, also granting the petition to reopen the claim for service connection for a respiratory disorder, but then remanding this claim and those for higher ratings for the PTSD and Type II Diabetes Mellitus with erectile dysfunction for additional development.  The remand of these claims to the RO will be via the Appeals Management Center (AMC).


FINDINGS OF FACT

1.  The Veteran served in Vietnam during the Vietnam era, so it is presumed he was exposed to Agent Orange or other herbicide while there.

2.  He has received a diagnosis of coronary artery and ischemic heart disease, and ischemic heart disease is one of the conditions presumptively associated with exposure to Agent Orange or other herbicide in Vietnam, absent rebuttable evidence to the contrary.

3.  A rating decision in November 2006 denied service connection for a respiratory disorder, and the Veteran did not appeal that decision; however, additional evidence since received relates to an unestablished fact necessary to substantiate this claim and raises a reasonable possibility of substantiating it.



CONCLUSIONS OF LAW

1.  The Veteran's heart disease, and specifically ischemic heart disease, was presumptively incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010).

2.  The November 2006 rating decision denying service connection for a respiratory disorder is final and binding based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2010).

3.  But new and material evidence since has been submitted to reopen this claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

In this decision, however, the Board is reopening the claim for service connection for a respiratory disorder on the basis of new and material evidence.  So there is no need to discuss whether there has been sufficient VCAA notice to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), including insofar as apprising the Veteran of the specific reasons this claim was previously denied so he would have the opportunity to respond by providing evidence that would overcome the prior deficiencies. See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006), wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial.  This claim is being reopened, regardless.  So even were the Board to assume for the sake of argument that he did not receive the type of notice contemplated by Kent, this failure still ultimately would be inconsequential and, therefore, at most nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating that, as the pleading party, he, not VA, has this evidentiary burden of proof of showing there is a VCAA notice error in timing and/or content and, above and beyond that, explaining why this error is unduly prejudicial, meaning outcome determinative of his claim).

And rather than immediately readjudicating the claim for service connection for a respiratory disorder on its underlying merits (i.e., on a de novo basis), the Board instead is first remanding for further development this claim and those for higher ratings for the PTSD and Type II Diabetes Mellitus with erectile dysfunction.  In doing this, the Board is temporarily deferring consideration of whether there has been compliance with the notice-and-duty-to-assist provisions of the VCAA regarding these claims pending completion of the additional development of them on remand.

Moreover, the Board is fully granting the claim for service connection for coronary artery disease, so also need not discuss whether there has been VCAA notice or assistance compliance with this claim, either.

I.  Service Connection for Coronary Artery Disease

Service connection may be granted for disability resulting from injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306.


Stated somewhat differently, to establish entitlement to service connection, there must be:  (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, 1166-67 (Fed. Cir. 2004).

Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time, so is chronic (meaning permanent and not just acute and transitory).  When chronicity of disease or injury in service is not established, or is legitimately questionable, a showing of continuity of symptomatology following service is required to support the claim.  38 C.F.R. § 3.303(b).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity of disease or injury in service and in turn link current disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Cardiovascular-renal disease (arteriosclerosis, nephritis and organic heart disease), including the precursor hypertension, will be presumed to have been incurred in service if manifested to a compensable degree, i.e., meaning to at least 10-percent disabling, within one year after discharge from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

According to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease), this minimally compensable 10 percent rating is warranted when a workload greater than 7 metabolic equivalents (multiples of resting oxygen uptake, i.e., METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required.


So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection may be granted, however, for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Regulations pertaining to herbicide exposure also provide that, if a Veteran served on active duty in Vietnam during the Vietnam era, it is presumed he was exposed to an herbicide agent (e.g., the dioxin in Agent Orange), unless there is affirmative evidence establishing he was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).

According to 38 C.F.R. § 3.2(f) defining periods of war, the Vietnam era is the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a Veteran who served in the Republic of Vietnam during that period.  The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases.

VA regulations also stipulate the diseases for which service connection may be presumed due to herbicide exposure.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.3.07(a)(6), 3.309(e).

On August 31, 2010, so during the pendency of this appeal, VA published a final rule amending 38 C.F.R. § 3.309(e) to add ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), Parkinson's disease, and B cell leukemias to the list of diseases presumptively associated with exposure to certain herbicide agents like the dioxin in Agent Orange.  75 Fed. Reg. 53202.  On November 1, 2010, the Chairman of the Board's Memorandum No. 01-10-37 was issued, lifting the stay of the adjudication of cases affected by these new regulations.

The Veteran's military personnel records confirm he served in the Republic of Vietnam during the Vietnam era; indeed, this was the basis for granting his claims for service connection for Type II Diabetes Mellitus with erectile dysfunction and for PTSD.  And, as there is no affirmative evidence to the contrary, it is presumed he was exposed to herbicides while in Vietnam.

The Veteran's service treatment records (STRs) are unremarkable for any subjective complaints (e.g., relevant symptoms) or objective clinical findings (e.g., a pertinent diagnosis) of any heart-related ailments or disease, including coronary artery disease.  The same is true for the one-year presumptive period following his discharge from service in February 1969, which therefore ended in February 1970.  But this, as mentioned, is not dispositive or determinative of his claim for heart disease because it is still possible to establish his entitlement to service connection for this disease with the benefit of the most recent amendments to the VA regulations adding ischemic heart disease to the list of diseases presumptively associated with exposure to Agent Orange in Vietnam during the Vietnam era.

Further concerning this, post-service VA clinical records dating from April 2006 reveal the Veteran had a history of coronary artery bypass graft (CABG) surgery in 2004.  VA records through 2009 show he received treatment for ischemia and coronary artery disease, including by way of medication.

So the medical evidence of record clearly shows a diagnosis of coronary artery disease and history of CABG surgery and ischemia.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating that, for service connection, the Veteran first has to establish he has the claimed condition - irrespective of any potential relationship between the condition and his military service).


Moreover, as explained, coronary artery disease, a form of ischemic heart disease, is on the amended list of diseases presumptively associated with exposure to Agent Orange in Vietnam during the Vietnam era, which, as also explained, there equally is no disputing the Veteran was subjected to.  Therefore, absent any evidence to the contrary, his heart disease must be presumed to have been incurred during his service it that capacity.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). 

II.  Whether there is New and Material Evidence to Reopen the Claim for Service Connection for a Respiratory Disorder

Irrespective of the RO's decision concerning whether there is new and material evidence, so, too, must the Board make this threshold preliminary determination, before proceeding further, because it affects the Board's jurisdiction to adjudicate this claim on its underlying merits.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); and VAOPGCPREC 05-92 (March 4, 1992).  If the Board determines there is no new and material evidence, that is where the analysis must end, and what the RO determined in this regard is irrelevant because further consideration of the claim is neither required nor permitted.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).

If, on the other hand, the Board determines there is new and material evidence, then the Board must reopen the claim and review the former disposition.  38 U.S.C.A. § 5108.

When determining whether a claim should be reopened, the Board performs a 
two-step analysis.  The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material."  See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998).  

According to VA regulation, "new" means existing evidence not previously submitted to agency decision makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2010).

Second, if VA determines the evidence is new and material, it may then proceed to evaluate the merits of the claim on the basis of the all evidence of record, but only after ensuring the duty to assist has been fulfilled.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

In determining whether evidence is new and material, the credibility of this evidence in question is to be presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). This presumption only applies when making a determination as to whether the evidence is new and material.  It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  Essentially, the presumption of credibility "dissolves" once the claim is reopened and decided on the merits.  But see, too, Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

The general statutes and regulations governing claims for service connection, cited in the discussion of the prior claim for coronary artery disease, are equally applicable to this claim for a respiratory disorder.  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999).

In addition, however (not mentioned in the prior discussion), disability that is proximately due to, the result of, or chronically aggravated by a service-connected condition shall also be service connected on this secondary basis.  See 38 C.F.R. § 3.310(a) & (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish entitlement to service connection on this secondary basis, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability; (2) a service-connected disability; and (3) competent and credible evidence establishing a nexus or link between the service-connected disability and the claimed disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); Velez v. West, 11 Vet. App. 148, 158 (1998).

In November 2006, the RO first considered and denied this claim for service connection for a respiratory condition.  The RO noted the Veteran's STRs did not contain any evidence of a respiratory condition, and that there also was no post-service diagnosis of a respiratory disorder - so no then current disability attributable to same.  He was appropriately notified of that decision and of his appellate rights in December 2006, but he did not appeal.  Therefore, that November 2006 RO decision is final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.

The Veteran since has filed the petition at issue to reopen this claim, and the evidence that must be considered in determining whether there is a basis for reopening this claim is that added to the record since that November 2006 rating decision.  See Evans v. Brown, 9 Vet. App. 273 (1996) (indicating the evidence to be considered in making this new and material determination is that added to the record since the last final and binding denial on any basis, so irrespective of whether it was on the underlying merits or instead a prior petition to reopen the claim).


Since that November 2006 decision, there is medical evidence showing the Veteran experiences dyspnea (difficult or labored breathing).  Dorland's Illustrated Medical Dictionary 518 (28th ed. 1994).  And in conjunction with his diagnosis of coronary artery disease (CAD), it was additionally indicated that his dyspnea was probably of pulmonary origin.  This additional evidence is not only new, since not previously considered when initially adjudicating this claim in November 2006, but also is material to the disposition of this claim because it alludes to an underlying pulmonary or respiratory problem as probable cause for the Veteran's dyspnea, aside from his CAD.  This additional evidence therefore relates to the previously unestablished requirement for service connection that he first have proof he has this claimed disability.  See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it, and that, without this minimum level of proof, there can be no valid claim).  Also, this evidence of an underlying pulmonary or respiratory disorder of some sort suggest it alternatively may have been caused or aggravated by the now service-connected CAD, which, if it has, would warrant granting service connection on this secondary basis.  See again 38 C.F.R. § 3.310(a) and (b).

This newly presented evidence need not be probative of all the elements required to award the claim, just probative as to each element that was a specified basis for the last disallowance.  See again Evans, 9 Vet. App. at 283-84.  In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit Court reiterated this, noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In the even more recently issued Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.

To summarize, this evidence was not previously submitted to agency decision makers, so is new, and is material because it relates to an unestablished fact necessary to substantiate this claim and by itself, or in connection with the evidence previously of record, raises a reasonable possibility of substantiating this claim.  Accordingly, this claim of service connection for a respiratory disorder is reopened.  38 U.S.C.A. § 5108. 


ORDER

The claim for service connection for coronary artery disease is granted.

Also, as there is new and material evidence, the claim for service connection for a respiratory disorder is reopened, but subject to the further development of this claim on remand.


REMAND

The Board finds that additional development of the evidence is needed before it can properly adjudicate the claim for service connection for a respiratory disorder on its underlying merits, i.e., on a de novo basis.

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, VA must provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (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 a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4).

When determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability.  See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

As already explained, and cause for reopening his claim, there is now medical evidence in the file indicating the Veteran experiences dyspnea that may not be entirely or even primarily due to his CAD, instead, the result of an underlying respiratory disorder.  And even assuming he has an underlying respiratory disorder, there is no medical nexus opinion in the file regarding its etiology, including especially in terms of whether it is directly or presumptively attributable to his military service or, alternatively, secondarily related to his military service if caused or aggravated by his CAD, which is now, as a result of this decision, a service-connected disability.  The Board is prohibited from exercising its own independent judgment to resolve medical questions such as these.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  As such, a VA examination and opinion are needed concerning these determinative issues of causation.

With respect to the increased-rating claims for PTSD and Type II Diabetes Mellitus with erectile dysfunction (ED), the record shows that the last VA compensation examinations for these disabilities were in April 2009, so more than 2 years ago.  The Veteran and his representative, most recently in an April 2010 informal brief, alleged these disabilities since have gotten considerably worse.  As a result, the Veteran needs to be reexamined to reassess the severity of these disabilities.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  See also Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); and Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).  See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991).

Accordingly, these claims are REMANDED for the following additional development and consideration:

1.  Schedule a VA compensation examination to first identify all current, if any, respiratory or pulmonary disorders.

Conduct all diagnostic testing and evaluation needed to make this threshold preliminary determination.

If it is confirmed the Veteran has a respiratory or pulmonary disorder, whatever the specific diagnosis, then the examiner is additionally requested to provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) this disorder is related or attributable to the Veteran's military service - either directly, presumptively, or secondarily as either caused or chronically aggravated by a service-connected disability, which now includes CAD in addition to his Type II Diabetes Mellitus and PTSD.

The claims file, including a complete copy of this remand, must be made available to the examiner for the pertinent medical and other history.

The examiner must discuss the rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file.

2.  Also schedule a VA psychiatric examination to reassess the severity of the Veteran's PTSD.

Based on the results of the mental status evaluation and review of the claims file for the pertinent history, the examiner should address the level of social and occupational impairment attributable to the Veteran's PTSD in relation to the applicable rating criteria.  In so doing, the examiner must provide accurate and fully descriptive assessments of all clinical findings resulting from this disability, as opposed to, for example, other unrelated factors or causes.  If it is not possible or feasible to differentiate between impairment resulting from the PTSD and that resulting from other unrelated factors or causes (whether physical or mental), then examiner must explicitly state this in the report and provide explanation.  The examiner also should assign a numerical code under the Global Assessment of Functioning (GAF) scale provided in the 4th Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and, if possible, indicate what portion of the GAF score is attributable to the PTSD versus other unrelated factors or causes (whether physical or mental).  And if it also is not possible or feasible to make this distinction, this, too, should be explicitly indicated and explanation provided.

3.  As well, schedule a VA compensation examination to reassess the severity of the Veteran's Type II Diabetes Mellitus with ED.  All diagnostic testing and evaluation needed to make this determination should be performed.  But, in particular, the examiner must indicate whether and to what extent the Veteran requires treatment with restricted diet, insulin, oral hypoglycemic agents, frequent visits to a medical care provider, or hospitalization, including specifying whether there has been regulation of activities.  "Regulation of activities" is defined by 38 C.F.R. § 4.119, DC 7913, as the "avoidance of strenuous occupational and recreational activities."  But medical evidence is required to show that occupational and recreational activities have been restricted, so the Veteran merely saying, for example, that he sometimes has to take it easy, do less, or things of that sort is insufficient.  See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996).

The examiner also must indicate whether the Veteran has experienced episodes of ketoacidosis, hypoglycemic reactions, and/or weight loss.

The examination also must include evaluation of the ED and indication of whether there is (physical) penile deformity with loss of erectile power.

Still further information is needed concerning whether there are any other residuals or complications of the Type II Diabetes Mellitus, like kidney or renal dysfunction, peripheral neuropathy, retinopathy, etc.

The claims file, including a complete copy of this remand, must be made available to the examiner for review of the pertinent medical and other history.

He or she also must discuss the rationale for all opinions expressed.

4.  Then readjudicate the claims for service connection for a respiratory disorder and for higher ratings for the PTSD and Type II Diabetes Mellitus with ED in light of the additional evidence.  If these claims are not granted to the Veteran's satisfaction, then send him and his representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs