Citation Nr: 1313060 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-20 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability, status post left tibia fracture with malunion and osteotomy. 2. Entitlement to service connection a left knee disability, status post left tibia fracture with malunion and osteotomy. 3. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and as secondary to a service-connected right knee disability. 4. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability. 5. Entitlement to service connection for right radiculopathy, to include as secondary to a low back disability. 6. Entitlement to service connection for left radiculopathy, to include as secondary to a low back disability. 7. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to July 1981, June 1982 to August 1982, and in June 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In September 2012, the Board remanded the case for further action by the originating agency. The case has returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim for entitlement to service connection for a left knee condition, status post fracture of the left tibia, was initially denied in an unappealed August 1995 rating decision. 2. The evidence received since the August 1995 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. The Veteran's left knee disability, status post left tibia fracture with malunion and osteotomy, was not present in service and is not etiologically related to any incident of active military service. 4. A chronic low back disability, diagnosed as lumbar myositis, was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. 5. Radiculopathy of the right lower extremity was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. 6. Radiculopathy of the left lower extremity was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability, status post left tibia fracture with malunion and osteotomy. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. A left knee disability, status post left tibia fracture with malunion and osteotomy, was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.6, 3.303, 3.307, 3.309. 3. Lumbar myositis was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. Radiculopathy of the right lower extremity was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. 5. Radiculopathy of the left lower extremity was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The claim for entitlement to service connection for a left knee disability was initially denied in an unappealed August 1995 rating decision. The evidence established that the Veteran's current left knee condition was incurred due to a motorcycle accident in November 1984, but did not show that the injury took place during a period of active duty service to allow for a grant of service connection. See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. The Veteran did not appeal the denial of the claim and the August 1995 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The evidence received since the August 1995 decision includes a January 2009 medical opinion from the Veteran's private physician, linking the current left knee disability to a motorcycle accident during the Veteran's active duty service. The Board finds that this opinion is material as it characterizes the Veteran's November 1984 injury as occurring during a period of active military service. Although the opinion appears to have been based solely on the Veteran's self-characterization of his service, the Veteran's statements are presumed credible for the purposes of determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). The January 2009 medical opinion therefore relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. The claim for entitlement to service connection for a left knee disability is reopened. Reopened Claim and Service Connection Claims Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). 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. 38 C.F.R. § 3.303(d). Under 38 U.S.C.A. § 101(24) "active military, naval, or air service includes active duty, any period of active duty service for training [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training [INACDUTRA] from an injury incurred or aggravated in line of duty during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Annual two-week training is an example of ACDUTRA. Inactive duty training (INACDUTRA) is training duty, other than full time, performed by the Reserve components. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or for injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. In other words, service connection is available for injuries, but not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). Left Knee Disability The Veteran contends that a chronic left knee disability was incurred as a result of a November 1984 motorcycle accident that occurred during a period of active military service. In a February 1995 statement, the Veteran reported that he was in receipt of active duty pay in November 1984 (due to a previous right knee condition), and was therefore on active military service. As noted above, service connection is possible for injuries incurred or aggravated while performing ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. The record clearly establishes the presence of a current disability. VA and private clinical records document treatment for chronic left knee pain throughout the claims period and a March 2009 MRI from the San Juan VA Medical Center (VAMC) was suggestive of a meniscal tear and degenerative changes. The record also links the current left knee condition to a November 1984 motorcycle accident. In a January 2009 statement, the Veteran's private physician opined that the Veteran's current left knee pathology was related to the 1984 left tibia fracture and anterior cruciate ligament tear. Other records of private treatment from April 2009 provide a similar nexus between the motorcycle accident and current left knee symptoms. Thus, the determinative issue in this case is whether the left knee injury was incurred during a period of active service to allow for a grant of service connection. Service treatment records show that the Veteran injured his right knee in June 1983 while playing basketball. Multiple surgical procedures were performed and the Veteran received incapacitation pay through December 1984. In November 1984, the Veteran was involved in a motorcycle accident resulting in a fracture of the left tibia. He underwent an external fixation and osteotomy. Four years later, in November 1988, a Medical Evaluation Board (MEB) was convened and diagnosed status post left tibia fracture with malunion, status post osteotomy. The Veteran was then referred to a Physical Evaluation Board (PEB) in February 1989 to determine whether he qualified for continued reserve service. The PEB report noted that the left knee disability was present prior to service and was not aggravated as a result of service. The Veteran was discharged from the Army Reserves in February 1989. Service personnel records and information from the service department clearly verify the Veteran's periods of ACDUTRA from May 1981 to July 1981, June 1982 to August 1982, and for several weeks in June 1983. The record also contains copies of orders from the Department of the Army activating the Veteran for 30 days of ACDUTRA in April 1987 for surgical treatment of a ligament tear, presumably in the right knee. This period of service is not verified by the service department; a March 2009 response from the National Personnel Records Center (NPRC) indicates that the Veteran did not perform any active service after June 1983. Additionally, while the Veteran was in receipt of incapacitation pay in November 1984 due to the earlier right knee injury, the records associated with the change in pay status do not establish that the Veteran was on ACDUTRA at the time of his motorcycle accident. In short, the Veteran's service personnel and treatment records and multiple responses from the service department are entirely negative for evidence of active service at the time of the Veteran's November 1984 motorcycle accident. The Board has also considered the statements of the Veteran contending that he was on active military service at the time of the November 1984 accident and left knee injury. The Veteran has stated generally that he was on active service in November 1984 and contended specifically that receipt of incapacitation pay was sufficient to establish ACDUTRA. He also submitted a January 2009 statement from his private physician in support of the claim. The private doctor characterized the Veteran's motorcycle accident as occurring during a period of active service, but no basis for this conclusion was provided. There is also no indication that the Veteran's claims file or any of his service or personnel records were reviewed prior to the issuance of the medical opinion in January 2009, and it is clear that the physician relied solely on the Veteran's statements regarding his duty status at the time of the November 2004 accident. The Board cannot conclude that an unsubstantiated opinion from a private doctor, rendered without review of the Veteran's service records and based entirely on statements from the Veteran, represents objective verification of the Veteran's duty status in November 1984. The Veteran is competent to report the circumstances of his injury, but the Board finds that his statements regarding his duty status in November 1984 are outweighed by the contents of the service records and information provided by the service department. There is simply no objective evidence indicating that the Veteran was on active military service at the time of the November 1984 left knee injury. Without such evidence, service connection is not possible and the claim must be denied. Low Back Disability The Veteran contends that service connection is warranted for a low back disability as it was incurred due to a service-connected right knee disability. In the alternative, the Veteran contends that his low back disability had its onset during active duty service. Turning first to whether service connection is warranted on a secondary basis, the record clearly establishes the presence of a current disability. In a January 2009 statement, the Veteran's private physician diagnosed low back discogenic disease. Treatment records from the San Juan VAMC also document ongoing treatment for chronic low back pain. The Veteran was most recently diagnosed with lumbar myositis upon VA examination in November 2012 and a MRI also demonstrated multilevel degenerative changes. Although the record establishes that the Veteran has a current low back disability, the weight of the evidence does not demonstrate that the disability was caused or aggravated by a service-connected right knee condition. The evidence in support of the claim for secondary service connection consists of the Veteran's lay statements and a medical opinion of a private physician. In a January 2009 statement, the private doctor concluded that the Veteran's back problems were due to spinal column misalignment and degeneration originating from bilateral knee disabilities. Although this opinion attributes some of the Veteran's back condition to the service-connected right knee disability, it also associated the current back disability with a nonservice-connected left knee condition. The January 2009 medical opinion does not clarify what amount of impairment or aggravation of the back is the result of the service-connected disability. The Board therefore finds that the probative value of the January 2009 private opinion is lessened due to its general and inconclusive nature. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). The Board has also considered the statements of the Veteran attributing his low back disability to the service-connected right knee disability, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as back pain, but finds that his opinion as to the cause of the disability simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). The Board finds that the most probative evidence regarding the etiology of the Veteran's current low back disorder is the medical opinion of a November 2012 VA examiner. After physically examining the Veteran and reviewing the claims file, the VA examiner found that the Veteran's low back disability was not caused or aggravated by the service-connected right knee disability. Review of the relevant medical literature did not demonstrate any etiologic relationship between the Veteran's disabilities, and the back condition was due to the nonservice-connected left knee disability and nonservice-connected leg length discrepancy. With respect to aggravation, the VA examiner noted that the Veteran's abnormal gait and pain could result in worsening back pain, but again found that these symptoms were the result of the nonservice-connected left knee and leg length conditions. The November 2012 medical opinion was fully explained, based on an accurate presentation of the facts, and was rendered following review of the claims file. The Board has therefore afforded it significant probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The November 2012 VA medical opinion clearly outweighs the Veteran's lay statements and the inconclusive January 2009 private medical opinion, and the evidence is against a finding of secondary service connection. Turning to whether service connection is warranted on a direct basis, the Board notes that the Veteran has reported a confusing history regarding the onset of his back disability. During the November 2012 VA examination, he stated that he first experienced the onset of low back pain in 1992, almost 10 years after his last period of active duty service and three years after his separation from the Army Reserves. However, the Veteran then reported that he experienced low back pain during military service. In any event, service treatment records are negative for complaints or treatment of low back pain except for a February 1989 PEB proceedings report. At that time, an unspecified back condition (characterized as "unfitting") was noted, although the accompanying PEB examination was negative for any back abnormalities or complaints. The February 1988 PEB report was prepared five years after the Veteran's last period of active service in June 1983, and there is no documentation of back arthritis within a year after separation to allow for service connection on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). In addition, the record does not demonstrate the presence of a nexus between the Veteran's low back disability and any incident of active duty service, to include a report of continuity of symptoms since service. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The only medical opinion of record addressing direct service connection, that of the November 2012 VA examiner, also weighs against the claim. In sum, the post-service evidence of record shows that the first evidence of the Veteran's claimed disability was years after his last period of active duty service. Furthermore, the competent medical evidence does not establish that the Veteran's low back disability was incurred secondary to the service-connected right knee disability or active service. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disability and a service-connected disability or active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Bilateral Radiculopathy The Veteran contends that service connection is warranted for bilateral radiculopathy of the lower extremities as secondary to a low back disability. The competent medical evidence, including a medical opinion provided by the November 2012 VA examiner, establishes that the Veteran's neurological impairment of the legs is due to nerve impingement associated with lumbar myositis. However, as discussed above, service connection is not warranted for the low back disability and service connection for radiculopathy on a secondary basis is not possible. 38 C.F.R. § 3.310 (2012). Turning to whether service connection is warranted on a direct basis as due to active duty service, the Veteran has not contended that he experienced any symptoms of radiculopathy during military service. His service records are negative for evidence of the disability and there is no documentation of lower extremity nerve impairment until January 2009, more than 25 years after the Veteran's last period of active service, when the Veteran's private doctor diagnosed bilateral radiculopathy. In addition, the record does not demonstrate the presence of a nexus between the Veteran's radiculopathy and any incident of active duty service, to include a report of continuous symptoms since service. Service connection for bilateral radiculopathy must therefore be denied. 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, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b), to include notice regarding claims for secondary service connection, was furnished to the Veteran in February 2009 and October 2012 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the February 2009 and October 2012 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim to reopen service connection for a left knee disability, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the October 2012 VCAA letter, the Veteran was provided notice of the criteria necessary for reopening a previously denied claim. In addition, he was informed of the reason for the prior denial of service connection in the RO's August 1995 rating decision. VA has therefore substantially fulfilled its specific duties to notify with regard to the Veteran's claim to reopen. VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claims. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claims were readjudicated in the March 2013 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, private medical records, and records from the Social Security Administration (SSA). Additionally, the Veteran was provided proper VA examinations and medical opinions in response to his claims. The Board also finds that VA has complied with the September 2012 remand orders of the Board. In response to the Board's remand, the Veteran was provided additional VCAA notice in October 2012 and provided a VA lumbar spine examination in November 2012. The case was then readjudicated in March 2013. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER New and material evidence having been received, reopening of the claim for entitlement to service connection for a left knee disability, status post left tibia fracture with malunion and osteotomy, is granted. Entitlement to service connection for a left knee disability, status post left tibia fracture with malunion and osteotomy, is denied. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability, is denied. Entitlement to service connection for right radiculopathy, to include as secondary to a low back disability, is denied. Entitlement to service connection for left radiculopathy, to include as secondary to a low back disability, is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the claim for entitlement to service connection for an acquired psychiatric disorder. In its September 2012 remand, the Board ordered that the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed acquired psychiatric disorder. The Board also ordered that the VA examiner should provide a medical opinion addressing whether any current psychiatric disorder was caused or aggravated by the service-connected right knee disability. The Veteran was examined by VA in November 2012 and while a medical opinion was provided, the VA examiner did not address whether the Veteran's psychiatric disorder was aggravated by the right knee condition. As an opinion regarding aggravation was specifically requested by the Board in its September 2012 remand, the claims file must be returned to the November 2012 VA examiner to allow for the issuance of an addendum medical opinion. See Stegall v. West, 11 Vet. App 268 (1998) (Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the VA examiner who conducted the November 2012 VA psychiatric examination. The examiner should review the claims file and provide an addendum report that includes a medical opinion addressing the etiology of the diagnosed depressive disorder. The examiner must determine whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's depressive disorder has been aggravated by his service-connected right knee disability. The claims file notes several occasions when the Veteran reported increased depression due to symptoms associated with his knee disability; in April 2010 he told his VA psychiatrist that he experienced low self esteem and feelings of uselessness due to chronic knee pain and radiculopathy. Furthermore, in December 2009, a private psychiatrist found that the Veteran's depressive symptoms were aggravated by his multiple health concerns. A private physician also related the Veteran's depression to symptoms associated with his bilateral knee disabilities in January 2009. A statement accompanying the medical opinion should include the basis for the stated opinion as well as the medical principles and evidence in the claims file that substantiates the opinion. If the November 2012 examiner is not available, the claims file should be provided to a VA examiner with appropriate expertise to render a medical opinion in this case. 2. Readjudicate the claims for entitlement to service connection for an acquired psychiatric disorder and entitlement to TDIU and issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs