Citation Nr: 1300889 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 06-32 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for plantar keratoses and pes planus of the left foot prior to May 3, 2012. 2. Entitlement to an evaluation in excess of 10 percent for plantar keratoses and pes planus of the right foot prior to May 3, 2012. 3. Entitlement to an evaluation in excess of 30 percent for bilateral plantar keratoses and pes planus from May 3, 2012. 4. Entitlement to a total disability rating based on individual unemployabilty (TDIU) based on the service-connected bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to May 1979. This case came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Jurisdiction over the case was subsequently transferred to the RO in Pittsburgh, Pennsylvania, and then to the RO in St. Petersburg, Florida. In January 2010 and February 2012, the Board remanded this case for additional development. The Board has reviewed the Veteran's Virtual VA electronic claims file in addition to the paper claims files. The documents contained in the electronic file are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal. The TDIU issue on appeal is addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. Prior to May 3, 2012, the Veteran's bilateral foot disorder was manifested by moderate foot symptoms, but without objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, or indication of swelling on use. 2. From May 3, 2012, the Veteran's bilateral foot disorder was manifested by severe foot symptoms, improved with orthotics; the impairment did not more nearly approximate pronounced symptoms such as marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. CONCLUSIONS OF LAW 1. Prior to May 3, 2012, an evaluation in excess of 10 percent for right foot plantar keratoses and pes planus were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). 2. Prior to May 3, 2012, an evaluation in excess of 10 percent for left foot plantar keratoses and pes planus were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). 3. From May 3, 2012, the criteria for a rating in excess of 30 percent for bilateral foot plantar keratoses and pes planus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent to the Veteran all required notice in letters dated in February and March 2006, prior to the rating decision on appeal. The Board also finds the Veteran has been afforded adequate assistance in regard to the claims on appeal. VA obtained all relevant treatment records identified by the Veteran. The Social Security Administration (SSA) reported in April 2010 that their records pertaining to the Veteran's award of SSA disability benefits had been destroyed. In a July 2010 letter, the originating agency informed the Veteran that his SSA records were unavailable (destroyed) and provided him the opportunity to provide any records in his possession. No SSA records were received from the Veteran. The Board previously reviewed the record, determined that the prior VA examination reports were inadequate, and remanded the case for the purpose of obtaining a new examination. Thereafter, VA obtained appropriate VA examinations. Although the Board requested additional clinical information on flare-ups in February 2012, the record shows that the Veteran's condition is constant in nature and, as such, there is no need for further clinical information on flare-ups. Therefore, after reviewing the recent examination report dated in May 2012, the Board finds substantial compliance with the requirements articulated in the Board's February 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Evaluation of Bilateral Foot Disability Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran's feet are evaluated under Diagnostic Code 5276. Moderate pes planus (flat foot) with weight-bearing line over or medial to the great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. For severe pes planus manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, a 20 percent rating is warranted if the severe pes planus is unilateral and a 30 percent evaluation is warranted if the severe pes planus is bilateral. For pronounced pes planus manifested by marked pronation, extreme tenderness of plantar surface of the feet, marked inward displacement and severe spasm of the tendo-achillis on manipulation, not improved by orthopedic shoes or appliances, a 30 percent rating is warranted for unilateral involvement and a 50 percent rating is warranted bilateral involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5276. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for either right or left foot disability prior to May 3, 2012. Also, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent for bilateral foot disability from May 3, 2012. The record shows that the RO granted service connection for intractable plantar keratoses with pes planus for each foot at the 10 percent disability level in March 1981. These disability evaluations were confirmed and continued in a May 1994 rating decision. In November 2005, VA received a claim for increase. At that time, the Veteran reported that, "I am 60 years old and unable to walk or maintain employment." In June 2006, the Veteran reported that he was unable to walk without canes or to wear normal shoes, and that surgery had been recommended. In an October 2006 statement, the Veteran reported that his feet swell after a few hours, he cannot wear shoes, his feet were covered with callosities, and that he had impaired gait. He also reported that he was receiving treatment for his feet and was scheduled for surgery. In a November 2006 statement, the Veteran reported that he had progressive low back pain and foot problems, and that he was totally disabled. He indicated that he was learning new computer skills and that he babysat his grandchildren. In August 2007, the Veteran reported that he could not sit or stand for more than 10 minutes. In a February 2010 statement, the Veteran reported that he had ankle and leg problems, and that SSA awarded him disability benefits due to the disabilities of his feet. He reported constant foot pain treated with medication. He indicated that he could not walk with street shoes; he could not walk without shoes; and he could not stand more than 20 minutes. In an April 2012 statement, the Veteran reported that his feet swell and cramp, and that he was unable to walk barefoot. VA treatment records reflect that the Veteran complained of bilateral foot pain due to plantar warts on the balls of his feet in April 2005 and that he may need orthotics. The Veteran described his pain as aching, constant, and aggravated by walking and standing on his feet. X-rays showed degenerative changes bilaterally, hallux valgus greater on the right, and bilateral calcaneal spurring in the region of the Achilles-tendon insertion. X-rays of the feet in March 2006 showed no fracture, subluxation, or destructive bone lesion; no evidence of localized soft tissue swelling; hallux valgus deformity of the great toes; and some hammertoe deformity of the right and left toes. Report of VA examination dated in April 2006 reflects complaints of cramping, pain, and swelling of the feet. He reported use of insoles and orthotics. Flare-ups were described as nonexistent as pain was constant. The Veteran stated that he could walk normally 3-4 blocks or 45 minutes at a time. Examination showed 2.5 centimeter scar over the 4th and 5th metatarsal region; full range of motion of the toes; no pain with motion; tenderness to palpation of the right and left foot callosities (left 3rd metatarsal and right 2nd and 5th metatarsal heads); hallux valgus to 20 degrees on the right and 10 degrees on the left; and completion of 5 repetitions of motion without additional loss of motion or pain. The examiner noted that the Veteran had pain with barefoot walking on a hard floor, and some discomfort with walking 50 feet in soled shoes-without orthotic inserts. Plantar keratoses or callosities were noted indicating abnormal weightbearing. The Veteran was disinclined to toe walk due to pain. He was able to heel walk, deep knee bend, and squat. He had good posture, rhythmic movement, and fair propulsion. There was no evidence of hammertoes, high arch, claw foot or deformity. There was no evidence of pes planus. The diagnosis was transfer lesions/plantar keratoses to the left 3rd and right 2nd and 5th metatarsal heads; and hallux valgus deformity of the right and left great toes. A VA psychiatric treatment note dated in April 2006 reflects that the Veteran was soon leaving for the Netherlands for 6 months. He indicated that he worked for Shell Oil Company and was going to drive a truck for that company in Iraq. VA podiatry consultation report dated in April and October 2006 reflects treatment for severe intractable plantar keratomas under the second and fifth metatarsal heads of the right foot and under the third metatarsal head of the left foot. In October 2006, a podiatric surgeon stated that he supported the Veteran's request for an increase in his disability status because of the Veteran's altered gait secondary to the problems he had in his feet with the displaced metatarsals that caused the severe, painful plantar lesions. The surgeon noted that one could, "barely touch the lesions, no less step or walk on them." VA treatment note dated in January 2009 reflects the Veteran presented for follow-up of bilateral foot pain. He reported improved symptoms in arches with orthotics but continued pain in the toe area. Examination showed hyperkeratoses of the left 3rd and right 2nd and 5th metatarsal heads, pain on palpation over these areas, and some pain of adjacent metatarsal heads. Hyperkeratoses were pared with a scalpel and he was scheduled for custom orthotics with metatarsal pad and 1/4 inch heel lift. He was to follow-up in 6 weeks for calluses. Report of VA examination dated in May 2010 reflects complaints of bilateral foot pain, primarily in the metatarsal foot pads with weight bearing. The Veteran denied weakness, fatigability, and flare-ups. He reported onset of ankle symptoms due to altered gait (walking on outsides of feet). Current treatment included off loading inserts with moderate effectiveness and pain medications. He reported ambulating with a cane at all times. The Veteran reported that he was unemployed, but had worked at Wal-Mart-he retired due to foot pain. Objectively, there were scars at the dorsal aspect of the 4th toe on the right and 3rd and 4th toes on the left from hammertoe surgery in service. There was tenderness to palpation over the metatarsal heads bilaterally. There were no hammertoes or claw toes found. With his cane, the Veteran had normal gait and no functional limitations on standing or walking. The Veteran had normal posture on standing, squatting and heel rise-there was pain with rising. There were bilateral callosities. The range of motion was without pain and unchanged on repetitive testing. There was no increase in pain, fatigue, weakness, or incoordination with repetitive motion testing. The diagnosis was bilateral metatarsalgia at the metatarsal heads of 2, 3, and 4 with callosities. The record shows in March 2012 that the Veteran reported he would be vacationing in Europe in early May 2012. Report of VA examination dated in May 2012 reflects complaints of bilateral foot pain and callosities. Clinical finding were negative for inward bowing, marked inward displacement and severe spasms, and extreme tenderness of the plantar surface of either foot. The Veteran reported some relief with orthotics. The examiner noted that the Veteran would not be better served by amputation with prosthesis. The Veteran had pain with manipulation of the feet and pain was accentuated on manipulation, but there was no indication of swelling on use. There was no evidence of marked deformity of the foot (pronation, abduction, etc.; there was no marked pronation of the foot. The weightbearing line did not fall over or medial to the great toe. The evidence of record does not show that either foot disability more nearly approximated the criteria for an evaluation in excess of 10 percent prior to May 3, 2012. The lay and medical evidence reflects moderate foot symptoms. Objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, or indication of swelling on use is not shown. While abnormal weight bearing is noted on report of VA examination dated in April 2006 and the Veteran stated on VA examination in May 2010 that he altered his gait (walking on the outsides of his feet), there is no indication of marked deformity (pronation, abduction, etc.). In fact, report of VA examination dated in May 2012 reflects that there was no evidence of marked deformity of either foot on pronation or otherwise, and that the weight bearing line did not fall over or medial to the great toe. The Veteran's right and left foot symptoms do not more nearly reflect severe foot disability of either foot prior to May 3, 2012. Likewise, the Veteran's symptoms do not more nearly reflect the criteria for a higher evaluation from May 3, 2012. Neither the lay nor the medical evidence shows marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo-achilles on manipulation, not improved by orthotic shoes or appliances. Rather, on recent VA examination in May 2012, clinical findings were negative for inward bowing, marked inward displacement and severe spasms, and extreme tenderness of the plantar surface of the feet; and the Veteran had some relief with orthotics. The Veteran's complaints and the medical findings for foot pain associated with keratoses more nearly reflect the criteria for a 30 percent disability evaluation. The Board has considered functional impairment due to pain and pain on use. However, there is no objective evidence of weakened movement, excess fatigability, lost endurance, swelling, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202 (1995). Notably, there was full range of foot motion without pain on VA examinations in April 2006, May 2010, and May 2012. While painful plantar lesions or keratoses were noted in the reports of VA examinations and in the VA podiatric treatment records, there is no indication that the Veteran's pain affects some aspect of the normal working movements of the foot such as excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Here, neither the lay nor the medical evidence shows such functional loss due to the right or left foot disability. To the extent that the Veteran has painful plantar surfaces, or lesions on the metatarsal pads, the current evaluations contemplate his functional impairment, as well as some interference with employment. The Board accepts that the Veteran is competent to report that his disability is worse than evaluated. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. Additionally, the Board has considered whether a higher evaluation may be assigned based on any other potentially applicable provision. However, the Board finds that a higher evaluation is not warranted under any other provision because there is no evidence of claw foot (pes cavus), malunion/nonunion of the metatarsal/tarsal bones, or evidence of loss of use of a foot such that the Veteran would be better served by amputation and prosthesis. 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Codes 5278 and 5284. The evaluation for the Veteran's foot disability is staged. The Board finds no basis to further stage the evaluation. See Hart, supra. The Board has considered whether a separate disability evaluation based on scars is warranted. However, the evidence of record does not show scars that are deep, cause limitation of motion, are in excess of 39 square centimeters, are associated with underlying soft tissue damage, are unstable, or are painful upon examination. Thus, a separate rating under Diagnostic Codes 7801-7805 for scars is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7801-7805 (2007). Although criteria for rating scars were revised, effective October 23, 2008, the revised criteria do not apply to the Veteran's claim here as it was filed prior to that date and he has not requested that his claim be reviewed under the revised criteria. Lastly, the Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Prior to May 3, 2012, an evaluation in excess of 10 percent for right foot plantar keratoses and pes planus is denied. Prior to May 3, 2012, an evaluation in excess of 10 percent for left foot plantar keratoses and pes planus is denied. From May 3, 2012, an evaluation in excess of 30 percent for bilateral foot plantar keratoses and pes planus is denied. REMAND The Veteran seeks a total rating based on individual unemployability due to service-connected disabilities. He has a single 30 percent disability rating based on bilateral intractable plantar keratoses with pes planus. Additionally, the Veteran argues that, although he does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a), he is entitled to an extraschedular TDIU under 38 C.F.R. § 4.16(b). The record shows that the Veteran reported on VA Form 21-8940 that the last worked full-time in February 2005, but he also reported working in 2006 and making the most income he had ever made in that year. He described his position as a security manager. He reported that he completed high school and 2 years of college. The record further shows that the Veteran worked for the Shell Oil Company in the Netherlands and Iraq in 2006. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the veteran's disability does not prevent performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In this regard, the Board finds that the evidence of record is inadequate to fairly decide the claim and that the originating agency should supplement the record by obtaining an opinion on what effect the Veteran's service-connected bilateral foot disability has on his ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009); Beaty supra. at 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). Although report of VA examination dated in May 2012 includes a statement on employability, this statement is inadequate. The examiner indicated that the Veteran's service-connected condition "should not prevent the average individual from employment with low requirements for prolonged standing or walking." However, the examiner did not address whether the Veteran specifically is precluded from obtaining or maintaining substantially gainful work due to his service-connected disability of the feet. The seminal inquiry as to employability is whether the Veteran rather than the average individual is capable of sustained gainful employment that is other than marginal. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent, outstanding treatment records. 2. Thereafter, the Veteran should be scheduled for an appropriate VA examination to determine the effect of his service-connected disabilities on his employability. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders should be made available to and reviewed by the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service connected disability of the feet. The examination report must include a complete rationale for all opinions and conclusions reached. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. The RO or the AMC should then re-adjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs