Citation Nr: 1313468 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-49 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection bilateral eye disability. 2. Entitlement to service connection for bilateral hearing loss disability. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for hepatitis C (HCV). 5. Entitlement to service connection for posttraumatic stress disorder (PTSD). 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Kenneth LaVan, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967, with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2009 and May 2012 rating decisions by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's December 2010 substantive appeal, he requested a hearing before the Board. However, in a September 2012 letter, the Veteran indicated his desire to cancel his hearing and did not request the hearing be rescheduled. The Board therefore considers his request for a Board hearing withdrawn. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for PTSD, entitlement to service connection for bilateral hearing loss, and entitlement to a TDIU are being remanded and 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 competent evidence of record does not show that the Veteran's bilateral eye disability is etiologically related to his active service. 2. The Veteran's hypertension was not manifest during active service, was not manifest within one year of his discharge from service, and is not shown to have developed as a result of an unestablished event, injury, or disease during active service. 3. The Veteran does not have a diagnosis of HCV. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 , 3.307, 3.309 (2012). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 3. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify After reviewing the claims folders, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought in August 2008 and October 2009 letters. Moreover, in these letters, the Veteran was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that the letters were sent to the Veteran prior to the January 2009 and May 2010 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, the notice requirements apply to all five elements of a service connection claim: 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 the present appeal, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the August 2008 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The RO has obtained the Veteran's service treatment records and pertinent post service treatment records. The Board notes that in an April 2013 correspondence, the Veteran's representative argued that the Veteran was entitled to VA examinations for all of the issues on appeal However, the Board finds that the medical evidence of record does not support referral for such examinations. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, there is no evidence that the Veteran has been diagnosed with hepatitis C. Additionally, the only evidence that his bilateral eye disability or his hypertension are the result of his active service are the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for VA medical examination is not warranted as to these issues. As such, the Board will continue with a decision as to these issues. II. Legal Criteria and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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) (2012). In addition, certain chronic diseases, including arthritis and cardiovascular-renal disease, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307 , 3.309 (2012). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Bilateral Eye Disability and Hypertension The Veteran claims he is entitled to service connection for a bilateral eye disability, which has resulted in blindness in the right eye, and hypertension. He has asserted that these disabilities were caused by, or are related to, his active service. A review of the Veteran's service treatment records (STRs) is silent for any complaints, treatment, findings, or diagnoses related to any eye disability hypertension. A review of the Veteran's November 1967 separation examination, and the associated report of medical history, shows that he specifically denied any eye trouble. However, he did report a history of high or low blood pressure. On clinical evaluation the Veteran's eyes were found to be normal and his blood pressure was noted to be 132 systolic over 74 diastolic. Additionally, the Veteran's distal visual acuity was found to be 20/20. The Board notes that for VA rating purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Based on the blood pressure findings reported at the November 1967 separation examination, a finding of hypertension was not supported at that time. Private treatment records from the Ochsner Clinic show that the Veteran was diagnosed with malignant glaucoma and cataract in the right eye and advanced glaucoma in the left eye in October 1998. There was no suggestion in the treatment records that these diagnoses were related to the Veteran's active service. The treatment records show that in October 1998 the Veteran underwent a vitrectomy and a lensectomy of his right eye. Private treatment records from Dr. C.H. show that the Veteran receives intermittent follow up care for his glaucoma. These treatment records do not provide any suggestion that the Veteran's bilateral eye disability is related to his active service. VA treatment records indicate that the Veteran also receives sporadic treatment for his bilateral eye disability at the VA Medical Center, most recently in March 2012. There is no indication from the VA treatment records that the Veteran's bilateral eye disability is related to his active service. The remaining VA treatment records associated with the claims file show that the Veteran receives somewhat regular care for a variety of medical disorders, including his hypertension. In his November 2007 claim for service connection, the Veteran asserted that he was diagnosed with hypertension in 1985; the VA treatment records do not show any record of hypertension until October 2002. The treatment records show that the Veteran's hypertension is treated with medication and home blood pressure checks. There is no indication from the treatment records that his hypertension is related to his active service. Based on the evidence of record, the Board finds that the Veteran's bilateral eye disability and hypertension were not manifest during active service and were not and are not shown to have developed as a result of an established event, injury, or disease during active service. Additionally, as there is no documented medical evidence of hypertension until October 2002, the Board finds that such disability was not manifest within one year of separation from active service. Although the Veteran has been provided with a diagnosis of glaucoma in each eye and hypertension, the persuasive evidence demonstrates these disabilities were not incurred in or otherwise related to service. As noted, the Veteran's STRs do not contain any diagnoses or other findings related to a bilateral eye disability or hypertension, regardless of the Veteran's report of a history of "high or low blood pressure" on the report of medical history associated with his November 1967 separation examination. Furthermore, the VA treatment records do not provide any suggestion that the Veteran's current bilateral eye disability or hypertension is in any way related to his active service. The only evidence suggesting a possible nexus between the Veteran's bilateral eye disability and hypertension, and his active service, are the Veteran's own assertions of such, which the Board has considered. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Here, the Board does not find that the Veteran is competent to render diagnoses for any of his claimed disabilities, whether in-service or post-service. While the Veteran is competent to report observable symptoms, he has not been shown to be competent to identify specific disorders based solely on observation. Further, while the Veteran has asserted that his claimed disabilities were incurred in service, he has not demonstrated the medical knowledge required to establish any such etiological nexus. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements the Veteran offered in support of his claims have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a medical nexus between these claimed disabilities and service. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, supra. As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). As noted, competency of evidence differs from weight and credibility. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, supra; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). While the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, there are no documented complaints of eye problems or blood pressure diagnoses or treatment in service. Moreover, although the Veteran reported a history of high or low blood pressure at the time of his separation from active service, there are no findings of high or low blood pressure in his STRs to support this report. Finally, the Veteran was not diagnosed with an eye disability until 1998 (31 years after separation from service) and the first post service medical evidence of hypertension is from October 2002 (35 years after separation from active service). These facts weigh heavily against the claim he now makes that he has had problems ever since service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for the pertinent chronic disability for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In sum, as the Veteran's statements regarding an inservice onset of his bilateral eye disability and his hypertension, and continuity after service, are inconsistent with the other evidence of record, the Board finds these statements to be of no credible weight. The preponderance of the evidence is against a finding that the Veteran has a bilateral eye disability or hypertension that is etiologically related to his active service. The appeal as to these issues is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt. Hepatitis C The Veteran claims he is entitled to service connection for hepatitis C (HCV), as such was caused by immunizations received in service from an air inoculation gun. A review of the Veteran's STRs is silent for any complaints or diagnoses related to HCV. Of record are extensive VA treatment records which show that the Veteran receives treatment for a variety of medical disorders. A VA treatment record from February 2004 shows that the Veteran was contacted by the VA Medical Center and advised that he was at risk for HCV and that he should have a blood test to determine if there was evidence of the virus in his blood. A VA treatment record from October 2010 shows that the Veteran tested positive for hepatitis A antibody, indicating that he had been exposed to hepatitis in the past, but that he did not currently have active hepatitis. There is no indication from the Veteran's treatment records that he was ever diagnosed with HCV, or that he has a current diagnosis of hepatitis. Under 38 U.S.C.A. § 1110, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As the Veteran has not been diagnosed with HCV, and has not been shown to have a current diagnosis of hepatitis A, service connection for such disability is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a bilateral eye disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for hepatitis C is denied. REMAND The Board finds that additional development is needed before the Veteran's remaining claims on appeal can be decided. The Board notes that recent case law has held that 38 C.F.R. § 3.159(c)(4)(C) establishes a low threshold for satisfying the requirements to trigger the Secretary's duty to assist by providing a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006). McLendon states that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service that would support incurrence or aggravation, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). A review of the medical evidence of record shows that the Veteran has a current diagnosis of sensorineural hearing loss. The Veteran's STRs show that although the Veteran's hearing acuity was found to be normal on his November 1967 separation examination, a November 1965 audiogram showed evidence of hearing loss. As there was evidence of hearing loss in service, and the Veteran has a current diagnosis of hearing loss, the Board finds that the low threshold outlined in McLendon has been met, and a VA examination is required in order to determine the nature and etiology of the Veteran's current hearing loss disability. With regard to the Veteran's claim of service connection for PTSD, the Veteran has asserted that while serving in the Republic of Vietnam, he suffered from a constant fear of being killed. He has also submitted statements regarding events that occurred while he was in the Republic of Vietnam that caused him to fear from his life. Additionally, the Veteran has stated that while in the Republic of Vietnam he suffered from psychiatric symptoms, that he received treatment while on active service, and that he has continued to suffer from these symptoms since his separation from active service. The Veteran's STR's reflect this reported treatment. A review of the Veteran's VA treatment records show that he has been variously diagnosed with PTSD and depressive disorder; however, at his August 2008 VA examination, the examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner noted that the Veteran denied any combat experience while in the Republic of Vietnam and that the Veteran was able to function fairly well with no significant clinical PTSD symptoms. During the Veteran's appeal, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). In light of the Veteran's claimed stressor events, the PTSD regulation changes, the Veteran's documented psychiatric symptoms while on active service, his claims of symptoms since service, and his variously diagnosed psychiatric disabilities of record the Board finds that the Veteran should be afforded a new VA examination in order to determine the nature and etiology of any currently present PTSD. See McLendon, 20 Vet. App. at 83 (2006). With regard to the Veteran's claim of entitlement to a TDIU, the Board notes that the Veteran does not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a); however, because the Veteran's claim for TDIU is inextricably intertwined with his claims of entitlement to service connection bilateral hearing loss and PTSD, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA audiological evaluation by a medical professional with sufficient expertise to determine the nature and etiology of any currently present bilateral hearing loss disability. The claims file must be made available to and reviewed by the examiner. Appropriate testing, including a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test, should be conducted. The examiner should also specifically report the audiometry thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hertz for both ears. Based on the examination results, review of the claims file, and interview of the Veteran, the examiner should provide an opinion as to whether the Veteran has a diagnosis of hearing loss for VA purposes. If so, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hearing loss is etiologically related to his active service. The complete rationale for all opinions expressed must be provided. 2. The Veteran should be afforded a VA examination by a psychiatrist or a psychologist with sufficient expertise to determine the nature and etiology of any currently present PTSD. The claims file must be made available to and reviewed by the examiner. All indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether the Veteran has a diagnosis of PTSD that is consistent with the criteria outlined in the DSM-IV. If so, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's PTSD is etiologically related to one or more in-service stressors reported by the Veteran. The examiner must specifically state whether the claimed stressor(s), if not involving combat, is related to the Veteran's fear of hostile military activity or terrorist activity of the type contemplated by the recent revision to 38 C.F.R. § 3.304 (f)(3). The complete rationale for all opinions expressed must be provided. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the remaining claims on appeal. If the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), consideration should be given to whether referral for extraschedular consideration is warranted. If any benefit sought remains denied, furnish the Veteran and his attorney with a supplemental statement of the case and afford them an appropriate opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ M.W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs