Citation Nr: 1108809 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 06-24 905A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a disability with manifestations of chest pain (to include as due to a heart condition) secondary to asbestosis. 2. Entitlement to a compensable evaluation prior to September 22, 2008, a rating in excess of 10 percent from September 23, 2008, to September 30, 2010, and a rating in excess of 30 percent from October 1, 2010, for asbestosis, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from October 1951 to September 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in October 2005 and March 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The October 2005 rating decision denied the claim of entitlement to service connection for a heart disorder claimed as chest pain. The March 2006 rating decision denied a compensable evaluation for asbestosis. This case was previously before the Board in July 2008, at which time the Board denied the Veteran's claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an Order issued in October 2009 based upon a Joint Motion for Remand between the parties, the Court vacated the July 2008 Board decision and remanded the case to the Board for additional action. In April 2010 the Board remanded the issues on appeal for additional development and readjudication. In November 2010, during the pendency of this appeal, the RO granted higher disability ratings for asbestosis of 10 percent effective from September 23, 2008, and 30 percent effective from October 1, 2010. As higher schedular evaluations for this disability are available, the issue of entitlement to an increased rating for asbestosis remains before the Board on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for a disability with manifestations of chest pain (to include as due to a heart condition) secondary to asbestosis and whether an extraschedular rating is warranted for asbestosis are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. For the period from October 31, 2005, to September 22, 2008, the Veteran's service-connected asbestosis was manifested by at least mild airflow limitation; the DLCO measurement most proximate to this rating period was 79 percent, on September 23, 2009. 2. For the period from October 31, 2005, to September 30, 2010, pulmonary function testing pertaining to the Veteran's service-connected asbestosis did not meet or approximate FVC scores of 65 to 74 percent predicted or DLCO (SB) scores of 56 to 65 percent predicted on objective clinical evaluation. 3. For the period from October 1, 2010, pulmonary testing pertaining to the Veteran's service-connected asbestosis did not meet or approximate FVC scores of 50 to 64 percent of predicted; DLCO (SB) scores of 40 to 55 percent of predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation on objective clinical evaluation. CONCLUSIONS OF LAW 1. From October 31, 2005, to September 30, 2010, the criteria for a 10 percent schedular rating for the Veteran's asbestosis were met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6833 (2010). 2. From October 31, 2005, to September 30, 2010, the criteria for a schedular rating in excess of 10 percent for the Veteran's asbestosis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6833 (2010). 3. From October 1, 2010, the criteria for a schedular rating in excess of 30 percent for asbestosis have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6833 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in a November 2005 letter that explained what information and evidence was needed to substantiate his claim for an increased rating as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. A March 2006 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the November 2005 and March 2006 letters, and opportunity for the Veteran to respond, the November 2010 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the Veteran's October 2010 VA examination that was fully adequate for the purposes of rendering this decision. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Specifically, the October 2010 VA examination clearly and fully provided the required pulmonary function test (PFT) results that are the appropriate method for schedular evaluation of the severity of the Veteran's asbestos-related lung disease. The examiner obtained a complete history from the Veteran and his review of the claims files is demonstrated by his report. His opinions and interpretation of the subjective aspects of the results were explained at length. However, in light of certain findings contained within the examination report, further development and adjudication of the matter of extraschedular rating for asbestosis is addressed in the remand section of this decision, below. The Board notes that the October 2009 Joint Motion for Remand, granted by the Court, instructed the Board to provide adequate reasons or bases for why VA's duty to assist was satisfied or to determine if the Veteran should be provided with another VA examination. As noted above, per the April 2010 remand instructions, the Veteran underwent a VA examination in October 2010 that was fully adequate for the purposes of rendering this decision. The Board is thus satisfied there was substantial compliance with the Court's October 2009 Joint Motion for Remand and the Board's April 2010 remand directives. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). Accordingly, the Board finds that no further development is needed to meet the requirements of the VCAA or Court prior to adjudication of entitlement to higher schedular staged ratings for asbestosis. Laws and Regulations-Higher Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2010). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2010). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Merits of the Claim Service connection was established for asbestosis effective from March 19, 2003, the date the Veteran's claim for service connection was received, and a noncompensable evaluation was assigned under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6833. In a July 2005 decision, the Board denied the Veteran's appealed for an initial compensable evaluation for asbestosis. That decision is final. See 38 U.S.C.A. § 7104. The Veteran's currently appealed claim for an increased rating for his service-connected asbestosis was received on October 31, 2005. Diagnostic Code 6833, listed under the General Rating Formula for Interstitial Lung Disease, provides for a 100 percent evaluation where FVC is less than 50 percent predicted; or DLCO (SB) is less than 40 percent predicted; or maximum exercise capacity is less than 15ml/kg/min oxygen consumption with cardio respiratory limitation; or cor pulmonale or pulmonary hypertension; or requires oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6833 (2010). A 60 percent evaluation is warranted where FVC is between 50 to 64 percent predicted; or DLCO (SB) is between 40 to 55 percent predicted; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardio respiratory limitation. Id. A 30 percent evaluation is warranted where FVC is between 65 to 74 percent, or DLCO (SB) is between 56 to 65 percent. Id. Finally, a 10 percent evaluation is warranted where FVC is between 75 to 80 percent, or DLCO (SB) is between 66 to 80 percent. Id. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned); Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). The Board notes that by VA regulation PFT results are the specifically prescribed means for evaluating the severity of the Veteran's asbestos-related lung disease. The Board notes that during the pendency of this appeal, VA amended the ratings schedule concerning respiratory conditions effective October 6, 2006. VA added provisions that clarify the use of PFTs in evaluating respiratory conditions under Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845. A review of the regulatory changes reveals that such changes which are pertinent to this claim are non-substantive in nature, and merely interpret already existing law. Accordingly, the Veteran will not be prejudiced by review of his PFT results in light of these explanatory regulations. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the Veteran was scheduled for a VA examination in December 2005. However the Veteran did not report for the examination. His representative indicated that he had been hospitalized. The examination was rescheduled. The Veteran underwent a private pulmonary evaluation in December 2005. The pulmonary function test revealed a FVC of 125 percent predicted. No DLCO percentage was given. The private physician noted that there was no significant bronchodilator response, suggestive of mild airflow limitation. A private pulmonary function report on September 23, 2008, demonstrated FVC of 85 percent and DLCO of 79 percent. An October 2008 private treatment note from the Hastings Pulmonary and Sleep Clinic indicated that the Veteran had an FVC of 80 percent and a DLCO of 79 percent. The diagnosis was moderate airflow limitation with significant bronchodilator response. There was some air trapping, notably increased residual volume, increased airway resistance and near normal diffusion capacity. His lung volume showed some minor hyperinflation but there was no evidence of any restricted lung disease. He was now in the category of moderate to severe obstructive lung disease. A June 2009 private treatment note from the Hastings Pulmonary and Sleep Clinic indicated that the Veteran had moderate COPD. The Veteran underwent a VA examination on October 1, 2010. The PFT results demonstrated an FVC of 66 percent predicted and a DLCO of 72.7 percent. The examiner noted that the Veteran gave a suboptimal effort on the pulmonary function test and the validity of the results should be questioned. It was noted that the Veteran was retired due to age or duration of his work. The Veteran reported that he did not take any bronchodilators. As noted above, in order to meet the criteria for the minimum, compensable rating of 10 percent under Diagnostic Code 6833, a FVC of 75 to 80-percent predicted, or a DLCO (SB) of 66 to 80-percent predicted is required. The December 2005 private pulmonary evaluation revealed a FVC of 125 percent predicted but no DLCO percentage was given. However, the private physician noted that there was no significant bronchodilator response, suggestive of mild airflow limitation. When affording the benefit of the doubt to the Veteran, the Board finds that this finding is sufficient to warrant a 10 percent disability evaluation from October 31, 2005, the date the Board received the Veteran's claim for an increased rating, to September 22, 2008. See 38 C.F.R. § 4.97, Diagnostic Code 6833. While no DLCO percentage was given in December 2005, the private notation that there was mild airflow limitation suggests a reasonable doubt that the criteria for a compensable 10 percent rating are approximated. This is particularly so because the Veteran could not attend a VA examination in December 2005 due to hospitalization, and private and VA DLCO test results most proximate to this period, beginning on September 23, 2008, squarely meet the criteria for a 10 percent rating. Regarding entitlement to a rating in excess of 10 percent from October 31, 2005, to September 30, 2010, as noted above, the December 2005 private pulmonary test revealed a FVC of 125 percent predicted. Additionally, a private pulmonary function report on September 23, 2008, demonstrated FVC of 85 percent and DLCO of 79 percent. In order to meet a 30 percent rating under Diagnostic Code 6833, the FVC rating would have to be between 65 to 74 percent, or the DLCO (SB) would have to be between 56 to 65 percent. None of the scores from the December 2005 and September 2008 PFTs meet or approximate the criteria for next higher rating of 30 percent for the period from October 31, 2005, to September 30, 2010. See 38 C.F.R. § 4.97, Diagnostic Code 6833. Regarding entitlement to a rating in excess of 30 percent from October 1, 2010, the October 2010 PFT results demonstrated an FVC of 66 percent predicted and a DLCO of 72.7 percent. The schedular criteria for a rating of 30 percent are met, in consideration of the DLCO results, but the criteria for a rating in excess of 30 percent are not met or approximated. See 38 C.F.R. § 4.97, Diagnostic Code 6833. The October 2010 VA examiner found that the Veteran gave a suboptimal effort on the pulmonary function tests and that the validity of the tests should therefore be questioned; this is an additional factor mitigating against applying the benefit of the doubt as to whether the higher schedular ratings of 60 percent is warranted. As October 1, 2010, is the first date upon which it is ascertainable that a schedular rating of 30 percent is warranted, this, the effective date assigned by the RO, is the proper effective date for assignment of a rating of 30 percent. See 38 C.F.R. § 3.400(o)(2). The October 2010 PFT does not reveal that the Veteran's breathing disorder manifests in an FVC of 64 percent of predicted or less, or; DLCO (SB) of 55 percent of predicted or less, or; maximum exercise capacity of 20 ml/kg/min oxygen consumption or less with cardiorespiratory limitation, or cor pulmonale, or pulmonary hypertension, or; requires outpatient oxygen therapy. As such, the criteria for a higher schedular rating of 60 or 100 percent are not met or approximated. See 38 C.F.R. § 4.97, Diagnostic Code 6833. Accordingly, a schedular rating in excess of 30 percent is not warranted for the period from October 1, 2010, forward. For the reasons set forth above, resolving doubt in favor of the Veteran, the Board determines that the criteria are met or approximated for the assignment of a 10 percent evaluation for the Veteran's asbestosis as of October 31, 2005. 38 C.F.R. §§ 3.102, 4.7. As there is no evidence of worsening of the Veteran's condition between the date of the Board's now-final July 2005 decision denying a compensable initial rating and the date of receipt of the Veteran's current claim, October 31, 2005, for an increased rating, the appropriate effective date for assignment of the 10 percent rating is October 31, 2005. See 38 C.F.R. § 3.400(o)(2). However, for the reasons discussed above, the preponderance of the evidence is against assignment of a rating in excess of 10 percent from October 31, 2005, to September 30, 2010, and against a rating in excess of 30 percent from October 1, 2010. Accordingly, after affording all reasonable benefit of the doubt in favor of the Veteran, entitlement to an increased schedular rating of 10 percent, but no higher, for asbestosis from October 31, 2005, to September 22, 2008, is warranted; entitlement to a schedular rating in excess of 10 percent from September 23, 2008, to September 30, 2010, for asbestosis is not warranted; and entitlement to a schedular rating in excess of 30 percent from October 1, 2010, for asbestosis is not warranted. ORDER Entitlement to a 10 percent schedular disability rating, but no higher, for asbestosis, from October 31, 2005, to September 22, 2008, is granted. Entitlement to a schedular rating in excess of 10 percent from September 23, 2008, to September 30, 2010, for asbestosis is denied. Entitlement to a schedular rating in excess of 30 percent from October 1, 2010, for asbestosis is denied. REMAND The Veteran has submitted evidence showing that he retired as he was "just tired" due to his asbestosis. Moreover, the October 2010 VA examiner indicated that while in most cases pleural plaques associated with asbestos exposure were unlikely to interfere with occupational issues, since it was unknown as to what exactly was causing the Veteran's chest discomfort and why the Veteran had so much chest discomfort at the end of the day, it was medically impossible to determine whether his asbestosis findings were interfering with any occupational issues. The procedures for consideration of assignment of a higher rating on an extra-schedular basis should therefore be followed. See 38 C.F.R. § 3.321(b)(1) (2010) (authorizing the assignment of an extra-schedular rating, pursuant to specially prescribed procedures, where the disability is so exceptional or unusual-due to such factors as marked interference with employment or frequent periods of hospitalization-to render the regular schedular criteria for rating the disability inadequate). In light of the foregoing, the claim must be remanded to refer the claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of the assignment of an extra-schedular rating. See 38 C.F.R. § 3.321(b). Regarding his service connection claim for a disability with manifestations of chest pain (to include as due to a heart condition) secondary to asbestosis, the Board notes that if the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board notes that, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2010). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran underwent a VA examination in October 2010. The examiner noted that the Veteran had diagnoses of coronary artery disease (CAD), chronic obstructive pulmonary disease (COPD) and asbestosis. He also had long-standing chest pains which he believed were related to his pleural plaques which were secondary to his asbestos exposure. The examiner noted that it was "really impossible to determine what is causing his chest discomfort" as it was not possible to separate out which of these chest pains was from his heart disease and which were from his pains coming from his pleural plaques. The examiner determined that military service did not cause the CAD. The examiner opined somewhat ambiguously that "his chest pains related to his heart condition are NOT related to his active duty service. They are more likely due to asbestosis . . . as best as providers can tell at this time." This leaves open the question of whether the Veteran's CAD is aggravated by his service-connected lung disability. While the examiner determined that the Veteran's CAD was not due to his military service, he did not address whether the Veteran's service-connected lung disability has aggravated his CAD. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Given the Veteran's assertions and those made by his representative, on his behalf, and, in light of the medical evidence noted above, the Board finds that further VA examination to obtain a medical opinion is needed to resolve the claim for service connection for a disability with manifestations of chest pain (to include as due to a heart condition) on a secondary basis, and entitlement to an increased rating on an extraschedular basis for asbestosis. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination to determine the extent and etiology of a disability with manifestations of chest pain (to include as due to a heart condition). The following considerations will govern the examination: (a) The claims folder, including all medical records, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. (b) If deemed appropriate by the examiner, the Veteran may be scheduled for further medical examinations. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. (c) The examiner must provide an opinion as whether it is at least as likely as not (i.e., there is a 50 percent or more probability) that the Veteran has current CAD that (a) was caused by, or (b) is aggravated by, the Veteran's service-connected asbestosis. (d) The examiner must also render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or more probability) that the Veteran has current CAD that was incurred in or aggravated by service. (e) If the examiner concurs in the October 2010 VA examiner's opinion that it is impossible to separate the Veteran's CAD from his lung disease in determining the etiology of his chest pain, the examiner must provide an opinion as to the extent the Veteran's lung disability and chest pains, irrespective of etiology, interfere with employment. (f) The examiner must provide an opinion as to whether the Veteran's lung disability and chest pains prevent him from securing or following a substantially gainful occupation. (g) The examiner is requested to provide a complete rationale for his or her opinions, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. 2. The Veteran's claim should be forwarded to the Director of VA's Compensation and Pension Service or Under Secretary for Benefits for consideration of entitlement to extraschedular ratings for asbestosis in accordance with 38 C.F.R. § 3.321(b). 3. Thereafter, the RO should review the claims file and ensure that no other notification or development action, in addition to that directed above, is required. If further action is required, the RO should undertake it before readjudication of the claims. 4. After completion of the above and any additional development deemed necessary, the issues remaining on appeal should be reviewed with consideration of all applicable laws and regulations. (a) The issues to be readjudicated are entitlement to service connection for a disability with manifestations of chest pain (to include as due to a heart condition) secondary to asbestosis, and entitlement to an increased rating for asbestosis on an extraschedular basis. (b) The RO should also determine whether a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the development requested above, and if so, adjudicate that issue as part and parcel of this appeal. (c) If any benefit sought remains denied, the Veteran and his representative must be furnished a SSOC and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ STEPHEN L. HIGGS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs