Citation Nr: 1300698	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  05-06 481A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability. 

2.  Entitlement to service connection for a left wrist disability, claimed as carpal tunnel syndrome. 

3.  Entitlement to service connection for a left ankle disability, to include as secondary to service-connected bilateral foot disability, right ankle disability, right knee disability, and/or spine disability.  

4.  Entitlement to service connection for a left knee disability, to include as secondary to service-connected bilateral foot disability, right ankle disability, right knee disability and/or spine disability. 

5.  Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right patella.    


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran served on active duty from August 1995 to August 1999 and from February 2000 to February 2004. 
 
This case comes before the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2010, the Veteran presented testimony before the undersigned; a copy of the transcript has been associated with the claims folder.  

Most recently in January 2011, the Board remanded the matters currently on appeal for further development, which has been completed and the case has been returned to the Board for appellate consideration.  

In addition to the issues currently before the Board, the issues of service connection for a gastrointestinal disability and a skin disability, and whether a reduction from 40 percent to 20 percent for degenerative disc disease of the thoracolumbar spine was proper for the period beginning August 1, 2009, had been perfected for appellate review and were also the subject of the Board's January 2011 remand.  However, during the pendency of this appeal, in a June 2012 rating decision, the RO granted service connection for gastroesophageal reflux disorder and assigned a 10 percent elevation effective November 19, 2008.  Additionally, in a September 2012 rating decision, the Appeals Management Center (AMC) granted service connection for pseudofollicutlitis barbae and dermatitis and assigned a 10 percent disability evaluation, and restored the 40 percent evaluation for degenerative disc disease of the thoracolumbar spine for the period beginning August 1, 2009.  As the Veteran has not disagreed with the effective date and/or disability evaluations assigned, these actions represent a full grant of benefits sought and these issues are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision.

The issues of service connection for a left wrist disability, a left ankle disability, and a left knee disability, and increased evaluation for right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The preponderance of the evidence is against a finding of bilateral hearing loss disability for VA compensation purposes.  


CONCLUSION OF LAW

A bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred therein.  38 U.S.C.A. 
§§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Stegall Considerations

As noted above, the Board remanded this matter in January 2011.  The Board specifically instructed the RO/AMC to obtain outstanding treatment records, schedule the Veteran for a VA examination to determine the nature and etiology of any current hearing loss disability, and to readjudicate the claim.  Subsequently, outstanding treatment records were obtained and associated with the Veteran's claims folder and electronic record, he was afforded examinations for his hearing loss disability in March 2011, and his claim was readjudicated in a September 2012 supplemental statement of the case.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Duties to Notify and Assist

In correspondence dated in May 2007, prior to the April 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The May 2007 letter also notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated in subsequent supplemental statements of the case, most recently in September 2012.  See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case).

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  Service treatment records have been associated with the claims file.  All identified and available treatment records have been secured.  As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period, most recently in March 2011.  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
 
The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim.  As noted above, he presented testimony in a hearing before the undersigned in July 2010.  Therefore, the duties to notify and assist have been met.  

Hearing Loss Disability

The Veteran essentially contends that he has a current hearing loss disability related to service.  He asserts that he was exposed to loud noise from machines and equipment, and while on the flight deck of an aircraft carrier during service leading to his current disability. 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012). 

Sensorineural hearing loss disability may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  However, this presumption does not apply as discussed below. 

With respect to Hickson element (1), current disability, the Board noted in the January 2011 remand that the evidence was in conflict as to whether the Veteran had a current disability.  The Veteran was initially evaluated by the VA in June 2007 and the following pure tone thresholds, in decibels, were recorded: 





HERTZ



500
1000
2000
3000
4000
RIGHT
50
50
40
35
55
LEFT
50
50
45
45
55

Speech recognition was 84 percent in the right ear and 64 percent in the left ear.  The examiner indicated the speech recognition scores were surprising given the pure tone thresholds, and air condition thresholds did not improve after the Veteran was reinstructed regarding testing procedures.  The examiner noted that given the inconsistencies in test results, functional hearing loss could not be ruled out and these results could not be used to determine disability without resorting to mere speculation.

The Veteran was afforded another VA examination in April 2009, the report of which reflected the following pure tone thresholds, in decibels: 





HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
05
10
25
LEFT
20
15
10
15
25

Speech recognition was 100 percent in the right ear and 96 percent in the left ear.  The examiner noted a diagnosis of hearing sensitivity within normal limits, and indicated he could not render an opinion as to the etiology of any hearing loss.  

Subsequent to that examination, additional treatment records dated in January 2010 have been associated with the claims folder showing that the Veteran has hearing loss for VA compensation purposes.  See 38 C.F.R. § 3.385 (2012).  The following pure tone thresholds, in decibels, were recorded: 





HERTZ



500
1000
2000
3000
4000
RIGHT
45
50
35
35
30
LEFT
40
40
35
35
40

Speech recognition was 80 percent in the right ear and 84 percent in the left ear. 

Pursuant to the Board's January 2011 remand, the Veteran was provided another VA examination in March 2011, the report of which showed the following pure tone thresholds, in decibels: 





HERTZ



500
1000
2000
3000
4000
RIGHT
25
20
15
20
25
LEFT
25
15
20
20
25

Speech recognition was 94 percent bilaterally.  The examiner noted that hearing sensitivity was within normal limits bilaterally.  He also observed that the Veteran displayed exaggerated listening behaviors in the waiting room, hallway, during his history, and during his examination.  The examiner indicated that the Veteran appeared to have significant difficulty with hearing and communication although a 2009 examination report noted hearing within normal limits.  The Veteran was noted to be extremely slow to respond to speech and pure-tone stimuli, and responses improved with reinstruction.  Non-verbal time-locked responses were recorded in addition to traditional behavioral responses, recorded word recognition was used, and incorrect responses were verified with monitored live voice.  The findings were consistent with a functional (non-organic) component.  

The Board finds that based on the evidence of record that the Veteran does not have hearing loss disability in either ear for VA compensation purposes.  See supra 38 C.F.R. § 3.385 (2012).  Although the Veteran was noted to have hearing loss in a June 2007 and January 2010, the Board specifically remanded this matter in January 2011 to determine whether he had a hearing loss disability.  The Board finds the March 2011 examination report to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file including the June 2007 and January 2010 records and extensive evaluation of the Veteran, and supported by detailed rationale.  Significantly, the June 2007 clinician specifically indicated that the results from that evaluation were not reliable.  Furthermore, the March 2011 VA examiner cited to the Veteran's exaggerated behaviors, which are consistent with the evidence and account for the contradicting evidence of record.  Accordingly, the March 2011 opinion is found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). 

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Therefore, service connection for bilateral hearing loss disability is not warranted. 

The Veteran, as a lay person, is competent to note what he experiences, including decreased hearing acuity.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses).  Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

However, in this case, the question as to whether the degree of the Veteran's hearing loss meets the criteria for hearing loss for VA compensation purposes is complex medical question unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation.  See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  That is, appropriate expertise is required to determine whether the Veteran's hearing acuity is impaired to the level of a hearing loss disability under VA regulations.  In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render audiological findings.  See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  Moreover, the inconsistencies in the Veteran's response to testing noted by the June 2007 examination and the exaggeration in the Veteran's responses noted by the March 2011 examiner call into question the Veteran's credibility with respect to his perceived level of hearing impairment.   

Furthermore, while the Veteran is competent to report what he experiences, he is not competent to assign puretone threshold or speech recognition scores to his perceived hearing impairment as such determination is not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  In this circumstance, the Board gives more weight to the March 2011 VA audiological testing results.  

At this time, the weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for bilateral hearing loss disability is not warranted. 


ORDER

Service connection for a hearing loss disability is denied. 


REMAND

Unfortunately, a remand is required in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012).  See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). 

As to the issue of service connection for a left wrist disability, the Board remanded this matter in January 2011 for the RO/AMC to provide the Veteran with an examination to determine the nature and etiology of any current disability, to specifically take into account the Veteran's statements as to service incurrence.  In this regard, the Board observed that the Veteran testified that during service he injured his left wrist when a light machine gun fell from his shoulder and struck him in the wrist.  Pursuant to the Board's remand, the Veteran was afforded an examination in March 2011.  Upon review of the claims folder and evaluation of the Veteran, the examiner opined that it was less likely than not that the Veteran's chronic strain of the left wrist was related to his military service.  She reasoned that there was no evidence of treatment for a left wrist disability in service or within one year of service discharge.  The Board finds that this examination report is inadequate and that another examination is necessary to specifically address the Veteran's competent assertion as to having injured his wrist during service.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").  

Additionally, as to the claims for a left ankle disability and a left knee disability, the Board finds that further evaluation is warranted.  Taking into considerations the Veteran's contentions that the disabilities are secondary to his service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; or chondromalacia of the right patella, the Board remanded these matters to provide the Veteran an examination to determine the nature and etiology of the disabilities, to specifically include as secondary to his service-connected disabilities.   See Allen v. Brown, 7 Vet. App. 439, 446 (1995); see also 38 C.F.R. 
§ 3.310 (2012).  The Board specifically instructed that the VA examiner determine whether a left ankle disability and/or left knee disability was caused by, or is aggravated by the Veteran's service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; and/or chondromalacia of the right patella.  If service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; and/or chondromalacia of the right patella aggravates (i.e., permanently worsens) a left ankle disability and/or left knee disability, the examiner was to identify the percentage of disability which was attributable to the aggravation.  

The March 2011 VA examiner opined that it was less likely than not that the diagnosed degenerative joint disease of the left ankle was secondary to bunionectomy because the Veteran stated he started having left ankle pain in 2001.  She also noted that the Veteran reported that his left ankle disability started in service but she found no evidence of instability of the joints or unsteady gait secondary to pes planus, hammertoe, bilateral bunionectomy, right ankle strain or right knee disability which can cause additional strain to the opposite joints.  She concluded that it was less likely that the Veteran's left ankle disability was etiologically related to or aggravated by treatments in the military.  The Board finds this examination report is inadequate as the examiner failed to adequately address aggravation as instructed in the January 2011 remand.  Although the examiner indicated that the Veteran's left ankle disability was not secondary to the service-connected disabilities and was not aggravated by service or treatment during service, she did not address whether the Veteran's service-connected disabilities themselves aggravated any nonservice connected left ankle or left knee disability.  On remand, the Veteran must be afforded another examination to address this matter.  See supra Barr, 21 Vet. App. at 311.

Additionally, as to the left knee disability, the March 2011 examiner indicated that it was less likely than not that the diagnosed degenerative joint disease of the left knee was related to treatment in service because there was no evidence in service of a chronic left knee disability in service or within two years of service discharge.  The examiner also noted the Veteran's report that his left knee disability started in service but found that there was no evidence of instability of the joints or unsteady gait secondary to pes planus, hammertoe, bilateral bunionectomy, right ankle strain or right knee disability.  Furthermore, she found that it was less likely than not that the Veteran's left knee disability was etiologically related to or aggravated by treatments in service.  The Board finds this examination report is inadequate as the examiner failed to even address whether the left knee disability was aggravated by the service-connected disabilities as instructed in the January 2011 remand.  Furthermore, the Board that most recently, the evidence appears to indicate that the Veteran's left knee disability could be now secondary to his service-connected degenerative disc disease of the thoracolumbar spine.  See April 2012 treatment record from D.R.B., D.O.  On remand, the Veteran must be afforded another examination to address whether his left knee disability was aggravated by his various service-connected disabilities, to include his spine disability.  See supra Barr, 21 Vet. App. at 311.

Lastly, as to the issue of an increased evaluation for the right knee disorder, the Board is cognizant that it recently remanded this matter for an updated evaluation which was rendered in March 2011.  Pertinently, that examination report shows that the Veteran demonstrated right knee range of motion from 0 to 110 degrees with pain, extension was normal and with repetition there was no change in the range of motion secondary to pain, fatigue, weakness, or lack of endurance.  However, subsequent private treatment reports show that range of motion was from 33 to 80 degrees in September 2011, and flexion 10 from 38 degrees and extension was -10 degrees in October 2011.  As there is vast disparity in the range of motion from March 2011 to September 2011 indicting possible worsening of symptoms, the Board finds that further evaluation is warranted to determine the current severity of the Veteran's right knee disorder.  The Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for an examination to ascertain the nature and etiology of any left wrist disability, including specifically an assessment as to whether any current disability is etiologically related to service.  The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The examination report must indicate that the claims file was reviewed in conjunction with the examination.

The examiner should provide an opinion as to whether there is a 50 percent probability or greater that the Veteran's current left wrist disability is causally or etiologically related to the Veteran's period of active service, to include the Veteran's assertion as to service incurrence as noted herein.  

In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence of in-service injury to the left wrist reported by the Veteran.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that examination found inadequate where examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). 

A complete rationale for any opinion expressed should be provided in a legible report.

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010). 

2.  Schedule the Veteran for an examination to ascertain the nature and etiology of any left ankle disability and any left knee disability, including specifically an assessment as to whether any current disability is etiologically related to service or service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or degenerative disc disease of the thoracolumbar spine.  The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The examination report must indicate that the claims file was reviewed in conjunction with the examination.

The examiner should clearly identify if the Veteran currently has a left ankle disability and/or left knee disability.  

For each left ankle and/or left knee disability identified, the examiner should:

a)  Provide an opinion as to whether there is a 50 percent or greater probability that the disability is causally or etiologically related to the Veteran's period of active service.  

b)  Provide an opinion as to whether there is a 50 percent or greater probability that the disability was caused by, or is aggravated by the Veteran's service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or degenerative disc disease of the thoracolumbar spine.  

If service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or or degenerative disc disease of the thoracolumbar spine aggravates (i.e., permanently worsens) a left ankle disability and/or left knee disability, the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995).

A complete rationale for any opinion expressed should be provided in a legible report.

3. Schedule the Veteran for an appropriate examination to determine the current nature and severity of his service-connected right knee disability.  The claims folder must be made available to the examiner in conjunction with the examination.  Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating knee disabilities.  The examiner should obtain a detailed clinical history from the Veteran.  All pertinent pathology found on examination should be noted in the report of the evaluation.

All indicated studies, including X-ray and range of motion studies in degrees, should be performed.  In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain.  To the extent possible, the examiner should assess the degree of severity of any pain.

Tests of joint movement against varying resistance should be performed.  The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner.  If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss.

The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups.  If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.

The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work.

The supporting rationale for all opinions expressed must be provided.

4. Then, after ensuring any other necessary development has been completed and the remand instructions have been complied with, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

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. 2012).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs