Citation Nr: 1237886 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 11-11 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for right knee arthritis. 2. Entitlement to service connection for a left foot disorder. REPRESENTATION Veteran represented by: Jewish War Veterans of the United States ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran had active duty service in the military from November 1942 to February 1943. This appeal to the Board of Veterans' Appeals (Board) is from a March 2010 rating decision of a special processing unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in St. Petersburg, Florida, certified the appeal to the Board. In a September 2011 decision, the Board reopened the claim for service connection for right knee arthritis based on the receipt of new and material evidence and then remanded the claim, as well as the Veteran's claim for service connection for a left foot disorder, to the agency of original jurisdiction (AOJ) for additional development. The case now returns for further appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Regrettably, the issue of service connection for a left foot disorder must again be REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDING OF FACT 1. At the Veteran's November 1942 service induction physical examination, a right knee disability, namely right knee cap surgical removal, was noted. 2. The Veteran's pre-existing right knee disability increased in severity during service; however, such increase was clearly and unmistakably due to the natural progression of the disease. CONCLUSION OF LAW Pre-existing right knee arthritis was not aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent to the Veteran in September 2009. The letter indicated the type of evidence and information needed to substantiate the Veteran's service connection claim and apprised him of his and VA's respective responsibilities in obtaining this supporting evidence. That letter also notified him that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess/Hartman, supra. Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning these claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At least some of the Veteran's service treatment records (STRs), including his induction physical examination report, are located in the claims folder. However, in a September 2009 response for records the RO was informed that the Veteran's records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC), a military records repository in St. Louis, Missouri. The Veteran in his March 2010 notice of disagreement acknowledges that the STR's are not complete. Alternative source records consisting of hospitalization records were obtained by NPRC. Here, although a substantial amount of STR's are in claims folder, it is not certain at this point that they are complete. In circumstances were records were destroyed or lost, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the Veteran in developing the claim, and to explain the reasons and bases for its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, missing or damaged STRs, alone, while indeed unfortunate, do not obviate the need for him to still have medical nexus evidence supporting his claim by suggesting a correlation between his currently claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). That is to say, missing or damaged STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf., Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The Veteran's VA medical treatment records, and identified private medical records were obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file. Also, subsequent to direction by the Board in its September 2011 remand, a VA medical examination was performed to determine whether service aggravated the Veteran's claimed right knee arthritis. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In October 2011, the Veteran was provided the requested VA medical examination as the Board directed when remanding these claims. Additionally, the medical opinion obtained is responsive to the determinative issues of aggravation, so additional examinations and opinions are not needed. 38 C.F.R. § 4.2. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board finds that such VA examination and accompanying opinion is adequate to decide the issue as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As indicated previously, the Board remanded the case for additional development in September 2011 in order to request that the Veteran identify any outstanding records and afford him a VA examination. As such, in a September 2011 letter, the AOJ requested that the Veteran identify any outstanding records. Additionally, the AOJ obtained updated VA treatment records and afforded the Veteran a VA examination in October 2011. Therefore, the Board finds that the AOJ has substantially complied with the September 2011 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of 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 appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a 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(a), 3.306. To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111. When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with its mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Veteran's November 1942 induction physical examination report acknowledges a musculoskeletal defect, specifically, the 1921 removal of his right patella (infected), slight atrophy of the right leg, that was considered ND (not disqualifying). Several other STRs also reference the Veteran's infant post-operative right knee joint septic arthritis. Further, in statements from the Veteran, such as in a September 2009 statement, he readily acknowledges the right knee infection and knee cap removal in his infancy. So considering his service induction physical examination report, and other affirming records of a preexisting right knee disorder, the Veteran is not entitled to the presumption of soundness at the start of his service in November 1942 relating his right knee. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted"), which was not the situation here. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Since this right knee disorder was noted on his service induction or entrance, it is the Veteran's burden, not VA's, to show an increase in severity of the right knee disorder during or as a result of his service. It has been asserted by the Veteran, in a December 1953 statement, and also in his notice of disagreement received in April 2010, that his disability, a pre-existing right knee disorder, was aggravated or permanently worsened by his military experience. The record also includes statements from the Veteran's acquaintances, indicating that at least since 1950, the Veteran has had a limp and leg pain. The Veteran's STR's show that he was hospitalized for right knee pain from January 6 to February 19, 1943. The Veteran reported (knee) pain for 21 years. It was stated that it was more severe following exercise or much walking. He had a history of septic arthritis of the right knee joint at age 1 year, followed by frequent periods of hospitalization up to age 10 and twice since then, and a limp and constant knee pain all his life were reported. In the hospital report it was indicated by history that there had been no acute exacerbations. Physical examinations revealed shortening and atrophy of the right leg, crepitation of the right knee, irregular contours of the right tibia and femur, and limitation of motion of the right knee. It was mentioned that the knee condition had caused destruction of cartilage of the joint, and that it was incapacitating because of pain, weakness, and limitation of motion preventing him from performing his duties. The condition was considered progressive and it was determined that it will be aggravated by the Veteran's military service. Further hospitalization was not required, and maximum improvement was obtained. The diagnoses included: arthritis, chronic, severe, nonsupporative due to septic arthritis at age 1; EPTI (existed prior to induction). The post-service clinical data referable to the right knee is limited, and includes private clinical records dating from September 2007 that show the Veteran's complaints of right knee pain, as well as reports of his right knee osteoarthritis, as a structural problem secondary to surgery many years ago. In October 2011, following the September 2011 Board remand, a VA compensation examination of the joints was obtained. The VA examiner reviewed the claims folder, to include the Veteran's contentions, his STR's, and post-service treatment records. After conducting a physical examination with diagnostic testing, she diagnosed degenerative joint disease of the right knee. The examiner the opined that such condition, which had clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of her opinion, she noted that the in-service hospital report, the Veteran indicated that he had constant aching pain in this right knee since it had been operated on. It was further observed that such reflected that he was hospitalized when he complained of severe pain after a detail that consisted of prolonged walking. The examiner reported the physical and diagnostic findings noted at such time, to include right limb shortening, crepitation, irregular bone contour, and marked right leg atrophy. She then concluded that such clinical findings were signs of old injury and there was no evidence of acute trauma or disease during the Veteran's active service. She noted that the Veteran served on active duty from November 30, 1942, to January 19, 1943, and was hospitalized on January 6, 1943, and concluded that the clinical findings noted at the time of his in-service hospitalization could not have developed within the 4-5 weeks of service. The examiner found that the increased pain in the knee was expected in any old diseased knee following strenuous exercise. As such, she concluded that there was no evidence of permanent aggravation of the Veteran's right knee disorder during active duty. The Board accords great probative weight to the VA examiner's opinion that, while the Veteran experienced an increase in knee symptomatology during service, such right knee disorder was clearly and unmistakably not aggravated beyond its natural progression. In this regard, she reviewed the claims file, to include the Veteran's contentions, his STR's, and post-service treatment records, and conducted a physical examination with diagnostic testing. As such, her opinion was based on an accurate and complete factual premise. Moreover, the October 2011 VA examiner's opinion contained clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Therefore, the Board accords great probative weight to the October 2011 VA examiner's opinion. There is no contrary medical opinion of record. The Board notes that the Veteran has contended on his own behalf that his current right knee disorder was aggravated by military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's right disorder and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the Board finds that the impact, if any, of the Veteran's activities during his military service on his pre-existing right knee disorder is a complex medical question as such involves the knowledge of the disease process of arthritis as well as an understanding of the progression of his post-operative residuals. There is no indication that the Veteran possesses such requisite knowledge and, therefore, he is not competent to render an opinion on such a complex medical question. Therefore, while the Veteran is competent to describe his in-service knee complaints and his current manifestations of his right knee disorder, the Board accords his statements regarding the etiology of such disorders little probative value as he is not competent to opine on such complex medical questions. Moreover, the Veteran has offered only conclusory statements regarding the relationship between his military service and his current right knee disorder. In contrast, the October 2011 VA examiner took into consideration all of the relevant facts in providing an opinion, to include the type of the Veteran's in-service complaints and diagnoses as well as the current nature of his right knee disorder. Therefore, the Board accords greater probative weight to the October 2011 VA examiner's opinion. Therefore, while there was an increase in severity of the Veteran's pre-existing right knee disability increased in severity during service, as demonstrated by his complaints and hospitalization, such increase was clearly and unmistakably due to the natural progression of the disease. As such, service connection for right knee arthritis on the basis of aggravation is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for right knee arthritis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for right knee arthritis is denied. REMAND As mentioned in the Introduction, in September 2011, the Board remanded the Veteran's claim for service connection for a left foot disorder. It s noted that a Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1111. When no pre-existing condition was noted upon entry into service, the burden falls on the government, not the Veteran, to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing disability will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disability. See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). In the September 2011 remand, the Board acknowledged that the Veteran's STRs showed evidence of a preexisting left foot disorder, and that the Veteran subsequently conceded having injured the foot prior to service. Importantly, private post-service clinical records from November 2008 and December 2009 show the Veteran's complaints of left foot pain attributed to left mid-foot trauma, and left ankle pain related to arthritis. It was noted by the Board that, even if there was the required clear and unmistakable evidence of a pre-existing left foot disorder, it still had to be determined whether the Veteran's military service aggravated this pre-existing disorder. The Board then determined that medical comment was required to determine whether the Veteran's military service aggravated the pre-existing disorder, and the claim was remanded to the AMC. In an October 2011 VA compensation examination, the examiner opined that the Veteran's left foot disorder clearly and unmistakably preexisted service, and also that it was not aggravated beyond its natural progression. Importantly it must be mentioned at this point in the VA physician's discussion of the facts it was reported that private medical records after the Veteran's service did not show complaint about his (left ) foot. However, those November 2008 and December 2009 private medical records indeed do show the Veteran's left foot complaints, which is in contravention to the VA physician's discussion of facts in the October 2011 medical opinion. The significance of these left foot complaints and their relationship if any, to aggravation of the Veteran's left foot disorder is not certain. However, the VA examiner's October 2011 medical opinion conflicts with the private medical evidence that is located in the claims file, suggestive that it may not have been considered by the VA examiner. In the September 2011 Board remand it was specified that review of the pertinent medical and other history occur. It is noted that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). As there remains some conflict with the evidence, an additional remand is necessary to resolve this conflict and to comply with the September 2011 Board remand. The examiner on remand should specifically reconcile the October 2011 medical opinion referencing the lack of any postservice private left foot complaints, with the November 2008 and December 2009 medical records reflecting the Veteran's left foot complaints. 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) (2012). Expedited handling is requested.) 1. Return the claims file to the VA examiner that opined in October 2011 regarding aggravation of the Veteran's left foot, for an addendum to that examination report. If, for whatever reason, this examiner is no longer available or able to provide additional comment (another addendum opinion), then obtain additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested additional medical comment can be provided just with review of the claims file. If the new examiner believes another examination is necessary, schedule another VA examination. The claims file, including a complete copy of this remand, must be made available. The examiner is then asked respond to the following questions: (A) Is there clear and unmistakable evidence indicating the Veteran's left foot disorder (whatever the current diagnosis) was not aggravated during or by his military service from November 1942 to February 1943 beyond its natural progression? (B) The examiner is requested to consider and comment on the significance, if any, of those November 2008 and December 2009 medical records reflecting the Veteran's left foot complaints. Also, in commenting, the examiner must remain mindful of the applicable standard or proof, namely that VA has the burden of proof of showing there was no aggravation of the Veteran's preexisting left foot disorder. Because the Veteran is competent to report the onset of pain in service, as this requires only his personal knowledge, not medical expertise, as it comes to him through his senses, the examiner must specifically address the Veteran's claim of a chronic worsening of his left foot condition while in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (wherein the Court determined an examination was inadequate because the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records (STRs) to provide a negative opinion). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs