Citation Nr: 1308449	
Decision Date: 03/13/13    Archive Date: 03/20/13

DOCKET NO.  08-35 273	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for residuals of the Veteran's prostate cancer, from August 1, 2007.  


WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

L. J. N. Driever



INTRODUCTION

The Veteran had active service from June 1968 to June 1970.    

This claim comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama.

During the course of this appeal, the RO and the Board characterized the claim on appeal variously, including as entitlement to an increased rating for prostate cancer with erectile dysfunction and whether the RO properly reduced the 100 percent evaluation assigned the Veteran's prostate cancer with erectile dysfunction to 20 percent, effective August 1, 2007.  

Because Diagnostic Code (DC) 7528, the DC under which the Veteran's prostate cancer is rated, contains a temporal element - its criteria mandate the assignment of a 100 percent evaluation for a certain period of time followed by a VA examination to determine the degree to which any residuals are disabling - this claim is most appropriately characterized as entitlement to an evaluation in excess of 20 percent for residuals of prostate cancer, from August 1, 2007, the effective date of the RO's reduction.  See Rossiello v. Principi, 3 Vet. App. 430 (1992) (holding that a 100 percent evaluation for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code contained a temporal element for that 100 percent rating). 

When the applicable DC contains a temporal element, an RO's action in reducing a 100 percent evaluation is not a "rating reduction," per se, as that term is commonly understood.  Rather it is procedural in nature, mandated by law and, as such, subject to the procedural requirements of 38 C.F.R. § 3.105(e), but not the rating reduction provisions of 38 C.F.R. §§ 3.343 and 3.344.  Id.   

The Veteran and his spouse testified in support of this claim during a hearing held before the undersigned Acting Veterans Law Judge in April 2011.  Thereafter, but during the same month, the Board requested a medical opinion in support of this claim.  A VA urologist provided this opinion in June 2012 and, based thereon, it is clear that this claim must now be divided into two questions, including whether an evaluation in excess of 20 percent is assignable for genitourinary residuals of the Veteran's prostate cancer and whether separate evaluations are assignable for non-genitourinary residuals of the prostate cancer, such as a depressed mood, irritability, fatigue and a lack of stamina/energy.  

The Board addresses whether separate evaluations are assignable for non-genitourinary residuals of the Veteran's prostate cancer, including a depressed mood, irritability, fatigue and a lack of stamina/energy, in the REMAND portion of this decision, below, and REMANDS this matter to the RO via the Appeals Management Center in Washington, D.C.

A review of the Virtual VA paperless claims processing system (the system) reveals no additional, pertinent documents for consideration in support of the claims being decided.  This system reflects that the Veteran has also initiated, but not yet perfected, an appeal of the RO's continued denial of his claim for service connection for posttraumatic stress disorder.  The Board need not refer this matter to the RO, however, because, according to the system, at this point, the RO is waiting for a response from the Veteran regarding how he wants to proceed.  


FINDING OF FACT

Genitourinary residuals of the Veteran's prostate cancer include erectile dysfunction, urine leakage requiring the wearing of absorbent materials that must be changed several times daily, and voiding dysfunction resulting in three to four episodes of nocturia.  



CONCLUSION OF LAW

The criteria for entitlement to a 40 percent evaluation for genitourinary residuals of the Veteran's prostate cancer, from August 1, 2007, are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.115a, Diagnostic Code 7528 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

A.  Duty to Notify

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim.  As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf.  38 U.S.C.A. 
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (requiring generic notice in claims for an increased evaluation, that is, notice of 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, as well as general notice regarding how disability ratings and effective dates are assigned).

These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  

Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004).  

As noted above, in a case such as this, the procedural requirements of 38 C.F.R. § 3.105(e) govern.  Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons.  In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105(e) (2012).

In this case, in considering a possible reduction in the evaluation assigned the Veteran's low back disability, the RO satisfied these procedural requirements.  Specifically, in June 2006, the RO issued a rating decision and notice to the Veteran proposing that the 100 percent evaluation assigned his prostate cancer be reduced to 20 percent for residuals of the cancer.  This rating decision and notice set forth the material facts and reasons for the proposed reduction.  The RO informed the Veteran that he had 60 days to submit evidence to show that the change should not be made.  See 38 C.F.R. § 3.105(i)(2) (2012). 

Where a reduction of benefits is found warranted following consideration of any additional evidence submitted and the reduction was proposed under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.  38 C.F.R. § 3.105(i)(2)(i)(2012).  The RO also satisfied this requirement by providing the Veteran 60 days from June 2006 to submit additional evidence, notifying the Veteran of the actual reduction in May 2007, and allowing a 60-day period to expire before assigning the reduction an effective date of August 1, 2007.

Following the reduction, the Veteran contended that he was more than 20 percent disabled as a result of his prostate cancer.  The RO did not provide him notice pertaining to this claim, timely or otherwise.  Instead, the RO issued a statement of the case and supplemental statement of the case citing the criteria governing ratings of prostate cancer residuals.  These documents and a notice letter the RO sent the Veteran in March 2006, explaining how disability evaluations and effective dates are assigned, represent the only pertinent notice of record on the claim for an increased evaluation.  

The RO's failure to provide the Veteran adequate and timely VCAA notice on this part of the appeal is harmless and non-prejudicial, not affecting the essential fairness of the adjudication.  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993).  According to April 2011 hearing testimony, it is clear the Veteran understood the types and content of evidence needed to substantiate his claim.  He and his spouse specifically discussed residuals of his prostate cancer in the context of pertinent rating criteria and identified providers who had treated such residuals.  The Veteran has not since argued that any defect in notice, either as to timing or content, prejudiced his effort to substantiate his claim for an increased evaluation. 

B.  Duty to Assist

VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).

The RO made reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  38 U.S.C.A. § 5103A(a), (b), (c) (West 2002).  Specifically, the RO secured and associated with the claims file all evidence the Veteran identified as being pertinent to his claim, including post-service private treatment records.  

During his hearing, the Veteran indicated that he had last seen his private physician three or four months prior to the hearing.  The Board is unclear whether records of this treatment are in the claims file (they are dated as recently as 2010).  Given the favorable disposition of this portion of the Veteran's claim and the fact that, in its decision, the Board contemplates all symptomatology the Veteran reports, remanding this claim to obtain such records would prejudice the Veteran.  Doing so would delay a decision in this case when, clearly, there is sufficient evidence to grant it, albeit on a partial basis.   

The RO also afforded the Veteran a hearing before the Board, during which the Veteran testified as to the degree to which residuals of his prostate cancer are disabling, and VA examinations, during which examiners addressed the severity the residuals.  Thereafter, during his hearing, the Veteran claimed that the residuals had worsened since the last examination.  The Board then obtained a medical opinion in support of the Veteran's claim, which confirms the worsening, alleviating the need for another VA examination.  

II.  Analysis

The Veteran claims entitlement to an increased evaluation for residuals of his prostate cancer.  He alleges that the 100 percent evaluation initially assigned this disability should not have been reduced to 20 percent.  He asserts that he is still 100 percent disabled and unable to work and less compensation would result in hardship to his family.  

According to the Veteran's and his spouse's hearing testimony, residuals of his prostate cancer have worsened since the April 2010 VA examination and include erectile dysfunction, urine leakage, including before and after using the bathroom, which necessitates the use and changing of absorbent pads three to four times daily including during the night, excessive voiding, including thrice nightly, and soreness in the penis area, which occasionally interferes with his ability to walk. 

A.  Schedular

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  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 evaluation will be assigned.  38 C.F.R. § 4.7 (2012).

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 
 
The RO has evaluated residuals of the Veteran's prostate cancer as 20 percent disabling from August 1, 2007 under Diagnostic Code (DC) 7528.  The time period preceding August 1, 2007, during which the Veteran's prostate cancer was rated 100 percent disabling, is not at issue in this decision.  

DC 7528, which governs ratings of malignant neoplasms of the genitourinary system, provides that a 100 percent evaluation is assignable following the cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure with a mandatory VA examination at the expiration of 6 months.  Following that examination, if there has been no local reoccurrence or metastasis, residuals are to be evaluated as voiding dysfunction or renal dysfunction, whichever predominates. 38 C.F.R. § 4.115b, DC 7528 (2012).

Voiding dysfunction is rated based on the particular condition involved, to include urine leakage, frequency, or obstructed voiding.  38 C.F.R. § 4.115a (2012).  A 20 percent evaluation is assignable for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the wearing of absorbent materials, which must be changed less than two times per day.  A 40 percent evaluation is assignable for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the wearing of absorbent materials, which must be changed two to four times per day.  A 60 percent evaluation is assignable for continual urine leakage, post surgical urinary diversion, urinary incontinence, or stress incontinence if requiring the use of an appliance or the wearing of absorbent materials, which must be changed more than four times per day.  Id.  

Urinary frequency is rated based on voiding intervals and time of voiding.  A 20 percent evaluation is assignable for a daytime voiding interval between one and two hours, or; awakening to void three to four times nightly.  A 40 percent evaluation is assignable for a daytime voiding interval less than one hour, or; awakening to void five or more times per night.  Id.

Urinary tract infections, representative of obstructed voiding, are rated based on the treatment the infection requires.  A 30 percent evaluation is assignable for a recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management.  Id.

With regard to renal dysfunction, a 30 percent evaluation is assignable when there is albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101 provides.  A 60 percent evaluation is assignable for constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under DC 7101.  Id.  

A 20 percent evaluation is assignable for deformity of the penis with loss of erectile power.  This evaluation is the maximum assignable under DC 7522.  38 C.F.R. § 4.115b, DC 7522 (2012).  Special monthly compensation is also payable for erectile dysfunction, but the Veteran is already in receipt of such compensation, effective from May 2006.

The Veteran's assertions, considered in conjunction with pertinent medical documents of record, discussed below, establish that residuals of the Veteran's prostate cancer more nearly approximate the criteria for a 40 percent evaluation, from August 1, 2007.  Since then, genitourinary residuals of the Veteran's prostate cancer have included erectile dysfunction, urine leakage requiring the wearing of absorbent materials that must be changed several times daily, and voiding dysfunction resulting in three to four episodes of voiding nightly.  

In June 2005, a prostate biopsy revealed that the Veteran had adenocarcinoma of the left prostate.  This finding necessitated cryosurgery of the prostate in November 2005, after which the Veteran reported residual complaints.  During a VA examination conducted in May 2006, he reported that, since the cryosurgery, he had followed up with a local urologist and was experiencing both non-genitourinary symptoms (discussed below in the REMAND section of this decision) and genitourinary symptoms.  The latter symptoms included a daytime voiding interval of one to two hours, nocturia twice nightly, constant urgency, occasional dribbling and hematuria, erectile dysfunction, and an absence of ejaculation.  The Veteran denied urinary leakage and testing revealed no renal dysfunction.  

Following the VA examination, the Veteran's tumor marker for prostate cancer or prostate-specific antigen (PSA) increased.  During the May 2006 examination, his PSA was 3.55.  In September 2007, his PSA was 3.8, but a follow-up October 2007 prostate biopsy did not reveal residual cancer in the prostate.  In November 2009, his PSA was 9.2, but again, a follow-up February 2010 prostate biopsy did not reveal residual cancer in the prostate.

The Veteran underwent another VA examination in April 2010, during which he reported the same symptoms, but more severe nocturia, occurring thrice rather than twice nightly.  As well, he reported continual urine leakage, requiring the wearing of absorbent materials that had to be changed less than twice daily and a urinary tract infection, which required medication for one to three months.  His PSA was 9.01.

Thereafter, during his hearing, he reported that the genitourinary residuals of his prostate cancer had worsened, requiring more frequent changing of the absorbent materials (three times daily) and resulting in more frequent nocturia (three to four times nightly).  In a June 2012 written opinion, a VA urologist confirmed the worsening, including the severity of the urine leakage and voiding dysfunction and frequency of the nocturia.         

Genitourinary symptoms this severe warrant the assignment of a 40 percent schedular evaluation under DC 7528 based on voiding dysfunction, the predominant condition.  An evaluation in excess of 40 percent is not assignable under this DC as there is no evidence of record establishing that the Veteran changes his absorbent materials more than four times daily or has renal dysfunction or more frequent and severe urinary tract infections. 

B.  Extraschedular 

In certain circumstances, a claimant may be assigned an increased evaluation on an extraschedular basis.  The question of whether such a rating may be assigned on such a basis is a component of a claim for a higher initial rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).

Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter.  Barringer v. Peake, 22 Vet. App. 242 (2008).  He is authorized to approve the assignment of an extraschedular evaluation if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2012).

If the claimant or the evidence raises the question of entitlement to an increased evaluation on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability.  Thun v. Peake, 22 Vet. App. 111, 118 (2008).  If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular rating is adequate and no referral is necessary.  Id.  If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular rating is inadequate.  The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization".  Id.

In this case, the Veteran has raised the question of whether he is entitled to an increased evaluation for residuals of his prostate cancer on an extraschedular basis by asserting general interference with employment.  He alleges that he has not worked since 2007.  However, the symptoms he has identified as being responsible for his inability to work are not those discussed in this portion of the decision, but rather those discussed below, in the REMAND portion of the decision.  Even assuming otherwise, a referral for extraschedular consideration is not necessary as the schedular criteria reasonably describe the level of severity and symptomatology of the Veteran's genitourinary symptoms.  The criteria contemplate not only the nature of such residuals, but the frequency at which they manifest, the type of care and treatment they necessitate, and the effect they have on the Veteran's ability to function.  Given this fact, the Board need not proceed further by determining whether the Veteran's prostate cancer disability picture involves the other related factors noted in 38 C.F.R. 3.321(b)(1).


C.  Conclusion

The rating schedule is designed to accommodate changes in condition; therefore, the Veteran may be awarded a different evaluation in the future should his prostate cancer disability picture change.  See 38 C.F.R. § 4.1.  At present, however, the previously noted evaluation is the most appropriate given the evidence of record. 

Based on the previous finding, the Board concludes that the criteria for a 40 percent evaluation for genitourinary residuals of prostate cancer, from August 1, 2007, are met.  In reaching this conclusion, the Board considered the complete history of the disability at issue as well as the current clinical manifestations and the effect the disability has on the Veteran's earning capacity.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  


ORDER

A 40 percent evaluation for genitourinary residuals of the Veteran's prostate cancer is granted. 


REMAND

Prior to adjudicating whether the Veteran is entitled to a separate evaluation for other residuals of the Veteran's prostate cancer, including a depressed mood, irritability, fatigue and a lack of stamina/energy, additional development is necessary.  See 38 C.F.R. § 19.9 (2012).

It is possible for a claimant to have separate and distinct manifestations of the same disability, which permit rating them under several DCs.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of separate evaluations is that none of the manifestations of the disability is duplicative of or overlapping with another manifestation of the disability.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  Pyramiding, which is the rating of the same disability or the same manifestation of a disability under different DCs, is to be avoided.  38 C.F.R. § 4.14. 

In this case, it appears that the Veteran has both genitourinary and non-genitourinary residuals of prostate cancer, the latter of which are not ratable under the DCs governing genitourinary disabilities.  In June 2012, upon the Board's request, a VA urologist reviewed the claims file and offered an opinion regarding the nature and severity of all residuals of the Veteran's prostate cancer.  He identified urinary frequency and incontinence and erectile dysfunction as the genitourinary residuals of the cancer, but also noted that a lack of stamina, fatigue and weakness can result from or become exacerbated by poor sleep secondary to the nocturnal incontinence and frequent urination.  As well, he noted that if the Veteran had been started on androgen deprivation therapy since 2010, which was a possibility given the Veteran's health status, it is reasonable to conclude that symptoms related to fatigue and a lack of stamina could be residuals of the prostate cancer treatment.  He explained that the side effects of such treatment include a depressed mood, irritability and a lack of energy.  

The urologist's opinion does not definitively establish that the Veteran has non-genitourinary residuals of his prostate cancer (utilizes words such as "can" and "could"), but suggests that such might be the case.  To determine whether a separate evaluation is assignable for such residuals, a less speculative opinion is needed.  

Also needed are any records of recent treatment for residuals of the prostate cancer.  As the urologist noted, the Veteran's tumor marker continued to rise from 2005 to 2010, but October 2007 and February 2010 prostate biopsies showed no residual cancer.  The Veteran's PSA level increased to 9.2 in November 2009, which is high, from 3.8 in September 2007.  The urologist indicated that these findings, which showed quite a rise over a two-year period, necessitate long-term monitoring and establish a moderate to high probability of cancer recurrence, likely metastatic.  The urologist further indicated that the mainstay of treatment in such a case is androgen deprivation therapy.  He explained that, in the absence of more recently dated medical records, he did not know whether the Veteran was undergoing such therapy, the side effects of which might entitle the Veteran to a separate disability evaluation. 

During his hearing, the Veteran testified that he indeed sees a private physician, Assis Soares, M.D., for residuals of his prostate cancer, including for the purpose of monitoring his health status by collecting specimens and conducting biopsies.  He indicated that his last visit was three or four months prior to the hearing, possibly in late 2010.

The Board REMANDS this claim for the following action:

1.  After securing any necessary authorization, obtain and associate with the claims file records of all treatment of the Veteran's prostate cancer residuals, including androgen deprivation therapy, dated since 2010.

2.  Once all new records are associated with the claims file, afford the Veteran a VA examination in support of the matter being remanded.  Provide the claims file to the examiner for review of all pertinent documents therein, including the June 2012 opinion of the VA urologist, and ask him to confirm in his written report that he conducted such a review.  

Inform the examiner that certain symptoms, including sadness, weakness and tiredness, are capable of lay observation and that any opinion offered should contemplate such symptoms.  

Ask the examiner to conduct a thorough evaluation, including all indicated tests, and then proceed as follows:  

a) record the Veteran's history of depression, irritability, fatigue and lack of stamina/energy, including when these conditions first manifested;  

b) confirm or refute the VA urologist's June 2012 written opinion;

c) considering the effect of the Veteran's genitourinary residuals of prostate cancer on his sleep and the effect of any androgen deprivation therapy he is undergoing, identify and describe the severity of all non-genitourinary residuals of the Veteran's prostate cancer, including, if appropriate, a depressed mood, irritability, fatigue and a lack of stamina/energy; 

d) specifically indicate the extent to which these symptoms interfere with the Veteran's occupational functioning;

e) provide detailed rationale, with specific references to the record, for the opinions provided; and 

f) if an opinion cannot be provided without resort to speculation, discuss why such is the case and whether there is additional evidence that would aid in providing such opinion.

3.  Review the examination report to ensure that it includes all requested information and, if not, return it to the examiner for correction.  

4.  Readjudicate the claim based on all of the evidence of record.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case.  

5.  Thereafter, subject to current appellate procedure, return this case to the Board for further consideration.  

The Board intimates no opinion as to the ultimate disposition in this case, but advises the Veteran that he has the right to submit additional evidence and argument on the remanded claim.  Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).  

This claim must be afforded expeditious treatment.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).


____________________________________________
KRISTI L. GUNN
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs