Citation Nr: 1307464 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 05-33 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to residuals of left knee injury, status post posterior cruciate ligament (PCL) reconstruction surgery. 2. Entitlement to service connection for left leg circulatory disorder, to include as secondary to residuals of left knee injury, status post PCL reconstruction surgery. 3. Entitlement to a compensable evaluation prior to March 5, 2009, and to an evaluation in excess of 10 percent thereafter for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran had active service from August 1982 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for the right knee disorder and the left leg circulatory disorder, both as secondary to the residuals of left knee injury and continued the noncompensable evaluation for bilateral hearing loss. After the Veteran perfected his appeal, the file was transferred to the Houston, Texas, RO upon the Veteran's relocation to that jurisdiction. In February 2010 the Veteran testified before the undersigned at a Travel Board hearing held at the Houston RO. A transcript has been incorporated into the record. In a March 2011 decision, the Board remanded the issues on appeal for further development, to include obtaining private and VA treatment records and scheduling VA examinations. The case was thereafter returned to the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for left leg circulatory disorder, to include as secondary to residuals of left knee injury, status post PCL reconstruction surgery; and to a compensable evaluation prior to March 5, 2009, and to an evaluation in excess of 10 percent thereafter for bilateral hearing loss are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A right knee disability was not present in service; arthritis of the right knee was not manifested in the first post-service year; and a current right knee disability was not caused or permanently worsened by the service-connected left knee disability. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated in active service and is not proximately due to, the result of, or aggravated by the service-connected left knee disability. 38 U.S.C.A. §§ 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) include enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirement applies to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman also held that in rating cases, a claimant must be informed of the rating formula for all possible schedular ratings for an applicable rating code, and that VA must provide information regarding the effective date that may be assigned. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. In this appeal, in the October 2003 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for entitlement to service connection for a right knee disorder secondary to the service-connected left knee disability as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned, if service connection is awarded. Dingess/Hartman supra. The October 2003 letter did not include adequate notice of a disability rating and effective date for the secondary service connection claim on appeal. However, post-rating, a March 2006 letter provided notice with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Despite the inadequate notice, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In this regard, the claim for entitlement to service connection for a right knee disorder secondary to the service connected left knee disability is being denied. As the claim is denied, any questions as to the appropriate rating and effective date to be assigned are rendered moot. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. As a result of a March 2011 Board remand, additional outstanding medical records were obtained. Pertinent medical evidence associated with the claims file consists of private medical records from Kaiser Permanente and the Greater Los Angeles Healthcare System, including records from the Sepulveda Ambulatory Care Center, dated from June 2002 to August 2006; as well as VA treatment records and examinations. The Veteran has been afforded appropriate medical examinations in regard to the claim decided herein. The examination reports dated May 2003, March 2009, and April 2011 are adequate for adjudicative purposes. The examiners reviewed the Veteran's records, subjective complaints, and examination findings. Thereafter, the examiners rendered medical opinions with sufficient reasons and bases. Also of record and considered in connection with the appeal is the transcript of the Veteran's February 2010 Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, at the hearing the VLJ noted the basis of the prior determination and noted the elements that were lacking to substantiate the claim for benefits; specifically, the VLJ elicited testimony regarding the history of the claimed right knee disorder and also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his current representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has either one identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits (specifically, he described the circumstances of his claimed disorder). Thus, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the appeal based on the current record. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that the regulation pertaining to secondary service connection was amended, effective October 10, 2006. The previous version of 38 C.F.R. § 3.310 is, however, potentially more favorable to the Veteran, and will be applied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). III. Background The Veteran's service treatment records contain no mention of complaints or treatment for a right knee condition. The records indicate that the Veteran was involved in a motorcycle accident in October 1984, during which he injured his left knee. At a May 2003 VA fee basis examination, the examiner stated that the Veteran's knee joints appeared to be normal, bilaterally. There was no heat, redness, swelling, effusion, drainage, abnormal movement, instability, or weakness. The right knee was noted as normal. Drawer and McMurray tests could not be done due to extreme range of motion. An addendum to a VA fee basis orthopedic examination conducted in May 2003 noted that the range of motion of the right knee was normal, with flexion to 140 degrees and extension to 0 degrees. There was no pain, weakness, fatigue, lack of endurance, or instability in the knee. Treatment reports from Kaiser Permanente and the Greater Los Angeles Healthcare System, including records from the Sepulveda Ambulatory Care Center, dated from June 2002 to August 2006 are silent for any complaints, findings, or treatment for a right knee disability, and those medical records do not otherwise suggest any relationship between any right knee disorder and the Veteran's service connected left knee disability. VA treatment records dated in April 2006 show the Veteran underwent a bilateral knee examination as part of a routine post surgical orthopedic examination. The examination did not demonstrate evidence of right knee joint, neurological, or motor abnormality. The x-rays did not show evidence of degenerative processes of the joint or other soft tissue or bony abnormality of the knee. The reports state that there was no evidence of right knee pathology, and the knee was medically described as pristine in condition. Treatment records from the VA Medical Center (VAMC) West Los Angeles California and the VA Community Based Outpatient Clinic Lancaster California dated June 2005 to August 2006, and the treatment records from the VAMC Houston, Texas dated March 2008 to March 2009 do not document a right knee disorder that is related to the Veteran's service-connected left knee disability. April 2008 VA x-rays of the right knee showed tricompartment degenerative changes with moderate amount of narrowing in the medial compartment. No obvious acute fracture or dislocation was noted. There were no abnormalities in the soft tissues. August and September 2008 VA treatment records show complaints of bilateral knee pain with intermittent swelling in both knees. There was no locking or giving away sensation in the left knee. The Veteran was given injections in both knees in August 2008. At a March 2009 VA examination, the Veteran reported having braces for both knees. He also reported undergoing cortisone injections in both knees in August 2008; explained that the injections helped a lot for three or four weeks. He complained of swelling and shifting in the left knee but no instability in the right knee. He described some stiffness with minimal intermittent swelling and occasional clicking with range of motion. He reported no injury and no surgery to the right knee. He took Advil and an occasional Vicodin or Tramadol for significant pain. He described no flare-ups or incapacitating events regarding the right knee. The examiner noted that the August 2008 orthopedics examination was the first documented note of any complaints regarding the right knee or any treatment for the right knee. The examination revealed a morbidly obese male with an antalgic gait secondary to his left knee. Examination of the right knee showed it to be stable to varus valgus stress testing both in extension and 30 degrees of flexion. There was a negative Lachman test; a negative anterior posterior Drawer test; and negative McMurray's test. There were no posterior masses and there was no joint line tenderness. There was no effusion, but he had tight hamstrings. The patella tracked in the midline and range of motion was 0 to 130 degrees (both active, passive, and against resistance). There was no pain, fatigue, or incoordination with repetitive motion. There was good quadriceps tone and motor strength was 5/5. Weight bearing x-rays of the right knee showed that the bones were intact and well aligned; it was read as decreased medial tibiofemoral compartment. The examiner noted that there was absolutely no evidence of any degenerative changes in any of the compartments, and that there was no decreased joint space on the weight bearing films. The x-rays were normal of the right knee. The impression was of a normal examination and normal x-rays, with no pathology. The examiner concluded that the right knee disability was not secondary to the left knee disorder. The examiner noted that if the Veteran was having symptoms in the right knee, it was related more to his body habitus than to anything going on in his left knee. At his February 2010 Travel Board hearing, the Veteran testified that his right knee disability was secondary to the service connected left knee disability and not directly related to service. He stated that his right knee buckled and it gives out and he was told by doctors to wear braces on his knees due to instability. He indicated he had no problems with his right knee prior to injuring his left knee. At an April 2011 VA examination, the Veteran reported a gradual onset of right knee pain after a motor vehicle accident in the 1980s. The Veteran stated that his right knee condition was aggravated by compensating for his left knee disability. The examiner concluded that the Veteran's right knee condition was not secondary to or aggravated by the left knee. The examiner stated that it was less likely than not that the right knee condition had its origin in service or is in any way related to his active service. He explained that it was more related to his body habitus than anything going on in his left knee. X-rays showed that the bones well aligned and no acute fracture was present. The soft tissues were unremarkable. The impression was no radiographic abnormality. IV. Analysis The Board initially notes that the Veteran does not contend, and the record does not show that the Veteran's right knee disorder originated in service. The Veteran contends instead that his service-connected left knee injury, status post PCL reconstruction surgery caused or aggravated his right knee disorder. When neither the Veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct service connection, but will instead focus on the Veteran's primary theory of entitlement on the basis of secondary service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). As stated above, in order for service connection to be granted on a secondary basis, three elements must be present: a current disability, a service-connected disability, and a medical nexus. See 38 C.F.R. § 3.310(a) (2012). Based upon the evidence in the claims file, the Board finds that the treatment records do not etiologically relate the Veteran's right knee disorder to his service connected left knee disability. They show only that he currently has degenerative changes in the joint, but do not address the etiology of any right knee abnormalities. Furthermore, there is no medical opinion linking the Veteran's right knee disorder to his service connected left knee disability. The March 2009 and April 2011 VA examiners opined that the Veteran's right knee disorder was not secondary to or aggravated by the Veteran's service-connected left knee disability. Significantly, neither the Veteran nor his representative has submitted or identified any medical opinion that actually supports his claim. The Board acknowledges that the Veteran is competent to report current knee symptomatology, including pain. The Board has considered the arguments advanced by the Veteran that his right knee disorder is caused by his claimed residuals of left knee injury, status post PCL reconstruction surgery. However, the resolution of issues that require medical knowledge requires professional evidence. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, secondary service connection involving the right knee requires specialized training for a determination as to diagnosis and causation, and are therefore not susceptible to lay opinions on etiology. This is particularly true in cases where the disorder at issue is not involving pathology easily discernible to a layperson, and where the matter involves not observations about whether the pathology began in service, but rather whether a disability affecting a different anatomical segment played a role in the development of the disability. That determination is clearly outside the realm of lay expertise. In any event, even if the Veteran were competent to address the etiology of his disability, the probative value of his opinion is outweighed by that of the VA examiners, who clearly have education, training, and experience in determining the etiology of disorders that is superior to that of the Veterans. In sum, there is no competent or probative evidence establishing that the service connected left knee disability caused or chronically worsened the right knee disability. Accordingly, service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for a right knee disorder, to include as secondary to residuals of left knee injury, status post PCL reconstruction surgery is denied. REMAND The Board finds additional development is required before the issues of an increased rating for bilateral hearing loss and service connection as secondary to the left knee disability for a circulatory disorder may be adjudicated. Records indicate that the Veteran was scheduled for a vascular ultrasound in August 2011 as a part of his VA examination when the issue was remanded by the Board in March 2011; however, there are no results of that procedure in the claims file or in the Virtual VA system. The last laboratory studies for vascular insufficiency were performed in November 2003. As certain testing recommended by a VA examiner was either not added to the claims file or not performed, remand is necessary. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran had a VA audiological evaluation in April 2011 in which the audiologist in effect recorded the audiometric findings but provided no discussion about the functional impairment actually caused by the Veteran's hearing loss. In addition, the audiologist noted that the claims file and service military records were not available for review and were not needed. The Court has held that "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Because the April 2011 examination report is inadequate under Martinak, remand is required at this point. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should contact the VAMC to ascertain whether vascular testing was performed in conjunction with the 2011 examinations. If such testing was conducted, the results of that testing must be obtained and added to the claims file, and the file then sent to the August 2011 VA examiner for any further comment. If the vascular testing was not performed, or if it was, but the August 2011 VA examiner is no longer available, the Veteran should be scheduled for a new VA examination to include vascular testing. 2. After associating any pertinent, outstanding records, the Veteran should be afforded an audiological evaluation by an examiner with sufficient expertise to determine the current severity of his service-connected bilateral hearing loss disability. The claims folder must be made available to and reviewed by the examiner, and any indicated audiological studies should be performed. In addition to dictating objective test results, the examiner's report should fully describe the effects of the Veteran's hearing loss disability on his occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007). The examiner should provide a complete rationale for all opinions provided. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 3. The RO or the AMC should also undertake any other development it determines to be warranted. Then, the RO or the AMC should readjudicate the issues on appeal, to specifically include a determination of whether referral for extraschedular evaluation for bilateral hearing loss is warranted. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs