Citation Nr: 1308421 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-33 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for cervical musculotendinous strain. 2. Entitlement to a compensable rating for residuals of fractures of the mandible. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1990 to November 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a decision in April 2011, the Board denied the claim for a higher initial rating for cervical musculotendinous strain and remanded the claim for a compensable rating for residuals of fractures of the mandible. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), but only with respect to the claim for a higher rating for the cervical strain. In an Order in January 2012, the Court granted a Joint Motion for Remand of the parties, the VA Secretary and the Veteran, and vacated the Board's decision for compliance with the instructions in the Joint Motion. In August 2012, the Board remanded the claim with instructions that the Veteran be afforded a new VA spine examination. Claims of service connection for nerve damage to the left upper extremity secondary to the service-connected cervical spine disability, for a temporomandibular joint disability, and for nerve damage of the trigeminal nerve have been raised by the record (see private medical records dated in October 2006 and October 2007, and the Veteran's July 2012 Appellant Brief). The claims are referred to the RO for appropriate action. The claim for increase for residuals of fractures of the mandible is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Cervical musculotendinous strain is manifested by favorable ankylosis of the spine, not unfavorable ankylosis, and incapacitating episodes having a total duration of at least four weeks during the past 12 months is not shown. CONCLUSION OF LAW The criteria for an initial rating higher than 30 percent for cervical musculotendinous strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237, 5243 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letters dated in February 2006, in March 2006, and June 2006. Where, as here, service connection has been granted and the initial disability rating has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable. Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service records as well as VA and private medical records. The Veteran was afforded VA examinations in May 2006, October 2006, April 2008, and September 2012. As the examination reports contains the medical history and findings, pertaining to the rating criteria, the Board finds that the reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical examination must be based on consideration of the history and describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION General Rating Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Cervical Musculotendinous Strain Cervical musculotendinous strain is rated 30 percent under Diagnostic Code 5237. The rating was effective December 27, 2005, the date he filed his claim for service connection. Under 38 C.F.R. § 4.71a, Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, the criteria for a rating of 30 percent, are forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. The criterion for the next higher rating, 40 percent, is unfavorable ankylosis of the cervical spine. Also any objective neurological abnormality may be separately rated under the appropriate diagnostic code. The criteria under the General Rating Formula for Diseases and Injuries of the Spine provide that normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Ankylosis is a condition in which the entire cervical spine is fixed in flexion or extension. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. In evaluating disabilities of the spine, the criteria is for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine. In addition, under Diagnostic Code 5243, the disability may be rated under either the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for the next higher rating, 40 percent, are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician. Facts On VA examination in May 2006, the Veteran complained that certain motions caused muscle spasms at the base of the neck. The Veteran stated the spasms were intermittent with periods of remissions, occurred every month or two, and lasted 4 to 7 days, resulting in difficulty with most anything, specifically, driving. The Veteran did not describe numbness, paresthesia, visual dysfunction, falls, or dizziness. He did describe moderate loss of motion, stiffness and weakness, and pain. There was no limitation in walking. On physical examination, the Veteran had normal posture, head position, and gait. He had no asymmetry, atrophy, or abnormal spine curvatures. There was no ankylosis. The examiner did not elicit any spasms, guarding, pain with motion, tenderness, or weakness. The Veteran had flexion from 0 to 50 degrees, extension from 0 to 45 degrees, left lateral flexion from 0 to 32 degrees, right lateral flexion from 0 to 35 degrees and left lateral rotation from 0 to 75 degrees, and right lateral rotation from 0 to 70 degrees. Repetition did not result in any additional limitations due to pain, fatigue, weakness, or lack of endurance. The neurological examination was normal. X-rays showed normal curvature and alignment of the spine without evidence of fracture or spondylosis. The diagnosis was chronic cervical musculotendinous strain. The pain resulted in the disability having a significant effect on occupational activities. The disability had no effect on chores, shopping, sports, feeding, and activities of daily living. It had a mild effect on exercise, recreation, travelling, and dressing. On VA neurology examination in May 2006, the examination was negative, except for tension headaches. In July 2006 in the Notice of Disagreement, the Veteran stated that he developed pain and missed work because of the VA examination. In September 2006, a private CT scan showed multilevel disc bulges, but no nerve root impingement. The Veteran's private primary care physician, Dr. Irwin, reported that the CT scan results indicated the need for referral to a specialist for either pain management or neurosurgery. In a statement in October 2006, Dr. Irwin noted that the Veteran's neck pain interfered with sleep, work, and recreational activities. The Veteran stated that he was able to exercise by running and lifting weights three to five times per week. The Veteran denied vision, gastrointestinal, or respiratory problems. He complained of numbness in his fingers and toes. On physical examination, the Veteran had a normal gait. Cervical motion was to 2 degrees of flexion, 3 degrees of extension, 6 degrees of rotation, left, 8 degrees rotation, right, 3 degrees of left lateral flexion, and 5 degrees right lateral flexion. The diagnosis was cervicalgia. In October 2006, records of a private chiropractor, including thermography, showed an area of inflammation at C-1. EMG testing was abnormal as it showed decreased muscle activity. On VA examination in October 2006, the Veteran stated that his symptoms were about the same, but with stiffness that was becoming progressively worse. He also complained of fatigue, decreased motion, stiffness, weakness, spasms, and neck pain on a daily basis. He had flare-ups of pain with certain movements, during which he could not work, sleep, or exercise. The Veteran estimated he could walk one to three miles. He did not experience numbness, paresthesia, visual dysfunction, falls, or dizziness. On physical examination, the Veteran had normal posture, head position, and gait. He had no asymmetry, atrophy, or abnormal spine curvatures in the cervical area. The Veteran did have ankylosis of the entire cervical spine, but the position of the cervical spine was neutral. The examiner did not notice any atrophy, but did elicit spasms, guarding, pain with motion, and weakness. There was no tenderness. The Veteran had flexion from 0 to 5 degrees, extension from 0 to 14 degrees, left lateral flexion from 0 to 5 degrees, right lateral flexion from 0 to 10 degrees and left lateral rotation from 0 to 35 degrees, and right lateral rotation from 0 to 35 degrees. In all instances, there was pain at the ending degree. Repetition did not result in any additional limitations due to pain, fatigue, weakness, or lack of endurance. The neurological examination was normal. The Veteran stated that he was employed full-time, but had missed approximately 3 weeks of work in prior year due to neck pain. The examiner described the increased absenteeism on the Veteran's usual occupational activities as significant. The disability had a moderate effect on chores, shopping, feeding, exercise, recreation, travelling, dressing, and activities of daily living. In April 2008, the Veteran was afforded a VA examination. The Veteran stated that on some days his neck was worse since his last examination and other days his neck had not changed. He described intermittent numbness in the forearms on waking. Otherwise, he did not experience numbness, paresthesia, visual dysfunction, falls, or dizziness. He also stated he was in pain for several days after a VA examination and complained of unrelenting pain throughout the examination. The pain was moderate, constant, throbbing, occurring 1 to 6 days a week. He stated that he experienced weekly flare-ups that lasted up to eight hours. When flare-ups occurred, he could not sit or look sideways and he had difficulty chewing. He also experienced fatigue, decreased motion, stiffness, weakness, and spasms. He stated that he saw a chiropractor 6 to 10 times a year. On physical examination, the Veteran had normal posture, head position, and gait. He had no asymmetry, atrophy, or abnormal spine curvatures in the cervical area. The examiner determined that the Veteran did have ankylosis of the entire cervical spine, but the position of the cervical spine was neutral. There were no indications of unfavorable ankylosis. The examiner did not elicit spasms, tenderness, or notice atrophy, but did elicit signs of bilateral guarding, pain with motion, and weakness. The Veteran had flexion from 0 to 5 degrees, extension from 0 to 12 degrees, left lateral flexion from 0 to 10 degrees, right lateral flexion from 0 to 10 degrees and left lateral rotation from 0 to 30 degrees, and right lateral rotation from 0 to 30 degrees. In all instances, there was pain at the ending degree. Repetition did not result in any additional limitations due to pain, fatigue, weakness, or lack of endurance. The neurological examination was normal except for hypoactive reflexes. The Veteran stated that he missed about 13 weeks of work in the prior year due to neck pain, which he estimated as 25 percent of his work time in the last 12 months. The examiner described the increased absenteeism effect on the Veteran's usual occupational activities as significant. The disability had a mild effect on activities of daily living and a moderate effect on chores, exercise, recreation, driving, and travelling. It had a severe effect on shopping and prevented participation in sports. In July 2008, the Veteran had an acute episode of pain that resulted in emergency treatment at VA with follow-up by his private primary care physician. The VA records describe the pain occurring in his mid-back area and the private primary care physician stated the pain originated in the thoracolumbar spine area. The Veteran submitted statements indicating that he was unable to work for about six weeks to two months in 2008 following his emergency room visit. He also submitted receipts from a physical therapist; a copy of a work restriction form stating he was in physical therapy; and a pay stub showing use of sick leave. On VA examination in September 2012, the Veteran reported occasional use of a cane for ambulation, and regular use of a hard, big pillow for pain relief. He reported flare-ups of pain that were caused by work, walking, and standing. When the flare-ups occur, he is unable to sleep. On physical examination, the Veteran had muscle spasms and guarding that was severe enough to result in abnormal spinal contour. The Veteran had flexion from 0 to 35 degrees, extension from 0 to 5 degrees, left lateral flexion from 0 to 0 degrees, right lateral flexion from 0 to 5 degrees and left lateral rotation from 0 to 15 degrees, and right lateral rotation from 0 to 20 degrees. In all instances, pain began at 0 degrees. Upon repetition, flexion was to 40 degrees, extension was to 5 degrees, left lateral flexion was limited to 0 degrees, right lateral flexion was limited to 0 degrees, left lateral rotation was to 20 degrees, and right lateral rotation was limited to 20 degrees. The examiner indicated that the additional functional loss and limitation of motion was due to painful movement and less movement than normal. The Veteran was also noted to have intervertebral disc syndrome but he had not had any incapacitating episodes over the past 12 months. The Veteran reported that he had missed almost 12 weeks of work in prior year due to neck and lower back pain. The examiner indicated that the Veteran's cervical spine disorder impacted his ability to work. The diagnosis was chronic cervical musculotendinous strain and multilevel disk bulge or protrusion (progression of neck condition). Analysis The evidence clearly demonstrates the Veteran has favorable ankylosis of the cervical spine. Under the General Rating Formula, the criterion for the next higher rating, 40 percent, is unfavorable ankylosis of the cervical spine. The Veteran argues his disability picture more nearly approximates the criteria for a 40 percent rating, that is, unfavorable ankylosis. However, there is no medical evidence of unfavorable ankylosis of the entire cervical spine. On VA examination in April 2008, the Veteran had ankylosis, but it was favorable. On VA examination in October 2006, the cervical spine ankylosis was in a neutral position. Pursuant to 38 C.F.R. § 4.71a, General Rating Formula, Note (5), fixation of a spinal segment in neutral position always represents favorable ankylosis. In September 2012, the VA examiner specifically described the Veteran's cervical spine ankylosis as favorable. There is no other competent evidence of unfavorable ankylosis of the cervical spine at any time during the course of the appeal. Further, there is no evidence that any of the following are present: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Although Veteran complains of some difficulty opening his mouth or feeding himself, there is no evidence this has resulted from the cervical strain disability as opposed to being a residual of the multiple fractures to the mandible. Diagnostic Code 5237 is for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. This implies that the factors for consideration under the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) are contemplated in the rating assigned under the general rating formula. Even if DeLuca factors were not contemplated in the current evaluation criteria, there is no credible objective evidence to demonstrate that pain on use or during flare-ups results in additional functional limitation to the extent that under Diagnostic Code 5237 unfavorable ankylosis of the cervical spine is shown. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, painful motion was taken into account on the range of motion studies, as reflected on the VA examination reports in October 2006, April 2008, and September 2012. In the absence of evidence of unfavorable ankylosis of the cervical spine, on VA examinations or in any other medical evidence of record, the criterion for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine based on orthopedic manifestations have not been met. The criteria for the next higher rating of 40 percent, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, have not been met. A 40 percent rating requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board has considered the Veteran's testimony that he missed several weeks of work due to neck pain. His statements in that regard are considered credible. However, the evidence does not establish that he has experienced at least 4 weeks of incapacitating episodes as defined by VA regulations, wherein he has required bed rest prescribed by a physician. Although the Veteran has shown that he was prescribed physical therapy for his neck from July to September 2008, there is no indication that bed rest was also prescribed as treatment. The purported work release form dated in December 2008 does not reflect that the Veteran was on physician-prescribed bed rest; rather, it merely notes that he was undergoing physical therapy. Finally, despite the evidence reflecting the Veteran's use of his sick leave, the employment record does not contain any indication that the absences were due to incapacitating episodes from intervertebral disc syndrome caused by his service-connected cervical spine disability. As for any associated objective neurologic abnormalities, the Veteran has associated nerve damage to the left upper extremity with his cervical spine disability, which has been referred to the RO for appropriate action. As any such associated objective neurologic abnormalities are rated separately, the claim for increase for cervical strain need not be deferred. The Veteran's overall disability picture does not more nearly approximate or equate to the criteria for the next higher rating of 40 percent, and the lower rating must be assigned. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim for a higher initial rating; there is no doubt to be resolved; and a higher initial rating is not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's service-connected cervical spine disability is primarily manifested by pain, limitation of motion, and favorable ankylosis. Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the rating criteria encompass the manifestations of the cervical spine disability. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. The assigned schedule rating is, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability The Veteran does not expressly raise, and the record does not reasonably raise, a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). At last report the Veteran was employed full time. ORDER An initial rating higher than 30 percent for cervical musculotendinous strain is denied. REMAND In April 2011, the Board remanded the claim for increase for residuals of fractures of the mandible for a VA examination. On VA dental examination in May 2011. The examiner did not provide the specific measurements that were requested in the remand. Further action to ensure compliance with the Board's remand directive in April 2011 is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA dental examination to determine the level of severity of the residuals of fractures of the mandible. The VA examiner is asked: a. Whether there is malunion of the mandible with displacement of the mandible, and, if so, whether the displacement is slight, moderate, or severe; and, b. To discuss the clinical significance of the finding in May 2006 that the Veteran had a discrepancy in interdentation in the centric position resulting in a right lateral side shift approximately 5.0 mm for maximal tooth contact; and, c. To provide the measurements for the inter-incisal range of motion and range of lateral excursion. The Veteran's file must be made available to the VA examiner for review. 2. After the above development has been completed, adjudicate the claim for increase for residuals of fractures of the mandible. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs