Citation Nr: 1317546 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-17 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of C2 and C3 spinous process fracture. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to December 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The issue of an increased rating was previously remanded by the Board in November 2011 for further evidentiary development of requesting outstanding post-service private treatment records, Social Security Administration (SSA) records, and to obtain an examination. This was accomplished, and the claim was readjudicated in a June 2012 supplemental statement of the case. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In November 2012, the Board again remanded the case in order to afford the Veteran a hearing; however, he failed to appear at the scheduled March 2013 hearing and neither furnished an explanation for his failure to appear, nor requested a postponement for another hearing. Pursuant to 38 C.F.R. § 20.702(d) (2012), when an appellant fails to appear for a scheduled hearing and has not requested a postponement, the case will then be processed as though the request for a hearing had been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Veterans Claims Court found that a claim for a TDIU due to service-connected disability was part and parcel of an increased rating claim when such claim was raised by the record. Here, in an undated statement received by the RO in November 2011, the Veteran raised the issue of unemployability due to his cervical spine disability. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The issue of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT For the entire period on appeal, the residuals of a C2 and C3 spinous process fracture have been manifested by subjective complaints of pain; objective findings do not show forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. CONCLUSION OF LAW For the entire period on appeal, the criteria for a rating in excess of 20 percent for residuals of C2 and C3 spinous process fracture have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Further, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The disabilities of the spine that are rated under the General Rating Formula include vertebral fracture (DC 5235) and cervical strain (DC 5237). The Veteran is currently assigned a 20 percent rating under the General Rating Formula, which provides a 20 percent rating for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the cervical spine is not greater than 170 degrees, or, muscle spasm or guarding severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next higher 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (see also Plate V) provides that, for VA compensation purposes, normal cervical motion is forward flexion, extension, and lateral flexion from zero to 45 degrees. Normal left and right rotation is from zero to 80 degrees. The normal combined range of motion for the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The Veteran asserts that his cervical spine disability is productive of significant disability and merit assignment of at least a 30 percent rating. After a review of all the evidence, lay and medical, the Board finds that a preponderance of the evidence is against the s claim for an higher rating. Specifically, in a March 2007 VA spine examination, the Veteran reported neck pain 24 hours a day which limited his ability to lift or carry. He also stated that he was unable to work due to his neck pain and had been unemployed since 1985. He further reported that he had suffered a right-sided stroke in 1997. He denied numbness, tingling tremors, weakness, or radiating pain down the legs or arms. Upon examination, the examiner noted tenderness palpation in the cervical spine. Range of motion of the cervical spine was 45 degrees of flexion, 5 degrees of extension, rotation of 50 degrees to the left, 20 degrees to the right, lateral flexion of 25 degrees to the left, and 10 degrees to the right. This evidence does not support a higher rating as flexion was at 45 degrees (well above the 15 degree limitation required for the next higher rating). Further, while limited ranges of motion were identified, favorable ankylosis (a fixation of the joint) is not shown. Therefore, a higher rating is not warranted. The Veteran was afforded a second VA spine examination in January 2009. He reported intermittent pain in the cervical spine region and morning stiffness. He related that his pain level was consistent and persistent from day to day in quality. Upon examination, the VA examiner noted mild pain on movement, but no sign of increased pain on repetitive movement that resulted in additional motion loss. Range of motion testing was flexion to 20 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left rotation to 40 degrees. The combined range of motion of the cervical spine was 160 degrees (normal is 340 degrees). The VA examiner further noted that x-rays showed mild degenerative disc disease and minimal kyphosis of the mid-cervical spine with minimal grade I subluxations. The examiner also noted diminished sensation throughout the entire right arm. As above, this evidence does not support a higher rating. Specifically, flexion, while further reduced from the March 2007 examination, was reported as 20 degrees and not within the range to warrant a higher rating. Similarly, while limited ranges of motion were identified (extension, right rotation, right lateral flexion were better; left rotation and left lateral flexion were worse), favorable ankylosis was not shown. Therefore, a higher rating is not warranted. Given the absence of any specific determination by the January 2009 VA examiner as to whether the Veteran's right upper extremity neurological impairment was wholly or partially attributable to his service-connected cervical spine fracture residuals, the Board remanded the matter in November 2011 for another VA examination. Pursuant to the Board's November 2011 remand, the Veteran underwent a spine examination in January 2012. He reported tenderness in the mid-cervical spine muscles and the upper-thoracic region. He stated that rotating and bending his neck to the left side caused significant pain. He denied radiation to his upper extremities and indicated that he was not on any medication for pain. Neurological symptoms which he experienced on the right side (weakness and numbness) were not reported as relating to his cervical spine injury. In this regard, the examiner noted that the Veteran had had a total of six strokes, the last one occurring in May 2010. The Veteran reported sustaining a mild stroke in January 1983 resulting in partial paralysis particularly in the upper right extremity. Upon physical examination, range of motion showed flexion to 45 degrees; extension to 45 degrees, left lateral rotation to 70 degrees, right lateral rotation to 80 degrees, left lateral flexion to 50 degrees, and right lateral flexion to 45 degrees. The examiner noted that he was not able to conduct repetitive testing as the Veteran voiced concern for spasm or discomfort. The examiner further noted that there was objective evidence of pain and functional limitation resulting in less movement than normal and pain on movement. Evidence of tenderness on palpation of the cervical spine and guarding of movement was noted. The examiner stated that there was no evidence of radiculopathy of the upper extremities. In fact, the examiner noted that the evaluation showed improvement in the C2 and C3 spinous process fracture residuals. This evidence does not support a higher rating as ankylosis was not shown. In fact, this evidence reflects the most range of motion of the cervical spine of all the examinations. As flexion was reported as 45 degrees and ankylosis was not shown, a higher rating is not warranted. The Board has reviewed and considered records from SSA relating to the Veteran's claim for disability benefits. These records provide evidence of the his cervical spine disability (complaints of pain and stiffness), but no objective evidence of his current level of disability. Therefore, they do not support a higher rating. The Board has also reviewed and considered VA treatment records from VA Medical Centers in West Los Angeles, California; Portland, Oregon; and Long Beach, California, and private medical records. While many of these records identify neck pain on the problem list, they offer very little in the way of clinical evaluation. Some of the assessments note that his neck is supple and that his neck pain is stable. This evidence does not support a higher rating. The Board further notes that a negative response for treatment records was received by the RO from the VA Medical Center in Martinez, California, and from Kaiser Permanente. In addition, the Board acknowledges the Veteran's statements that his disability is worse than the currently-assigned 20 percent rating. 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of the cervical spine according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the cervical spine disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examination reports) directly address the criteria under which this disability is evaluated. Based upon review of all the evidence record, lay and medical, the Board finds that the assignment of a rating in excess of 20 percent for residuals of C2 and C3 spinous process fracture under DC 5237 is not warranted, as the requirements of forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine have not been met at any time during the appeal period. The Board has also considered the Veteran's reported impairment of function, such as limited ability to turn his head, and has considered additional limitations of motion due to pain. Even considering additional limitation of motion or function of the cervical spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the cervical spine disability more nearly approximates the criteria for a higher rating of 30 percent. Such factors that may additionally limit motion and function were considered and assessed by the January 2012 VA examiner (VA examiner noted less movement than normal and pain on movement). The Veteran described flare-ups of pain and sensitivity approximately three times per week, which causes reduced range of motion for a day or two. Range of motion testing of the cervical spine revealed, at worst, 20 degrees of flexion at the time of the January 2009 examination. The Board finds that pain and reduced range of motion is fully contemplated in the current 20 percent rating. As such, a higher rating based on pain and functional loss is not warranted. Next, the Board notes that a diagnosis of degenerative disc disease was diagnosed at the January 2009 VA examination but specifically found not to be present at the January 2012 examination. Nonetheless, the Board has considered whether a higher rating is warranted pursuant to DC 5243 (for IVDS). Under the IVDS Formula, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. For purposes of the regulation, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. In this case, the evidence does not show that the Veteran has ever been ordered to bed rest due to disc disease of the cervical spine. Therefore, a higher rating would not be warranted for degenerative disc disease. Next, the Board has considered whether a higher rating is warranted under DC 5003 for degenerative joint disease. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a maximum rating of 20 percent is available for degenerative arthritis under DC 5003. In the present case, however, the Veteran is in receipt of a 20 percent rating for limitation of forward flexion motion. Thus, a rating under DC 5003 is not warranted. Moreover, the Board has considered whether a separate evaluation for neurological disability is warranted. As instructed by Note (1) to the General Rating Formula, associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. In this regard, the record is in conflict on whether cervical radiculopathy is shown. In the March 2007 VA examination, the Veteran denied numbness, tingling tremors, or radiating pain down the legs or arms. In the January 2009 VA examination, however, the VA examiner noted diminished sensation throughout the Veteran's entire right arm. In the January 2012 VA examination, the Veteran denied radiation to his upper extremities. The January 2012 VA examiner noted that neurological symptoms which the Veteran experienced on the right side (weakness and numbness) were not reported as relating to the cervical spine injury; rather, the Veteran reported having had a total of six strokes. The January 2012 VA examiner concluded that there was no evidence of radiculopathy of the upper extremities and opined that the Veteran's hemiplegia (paralysis of one side of the body) was not related to his cervical spine disability. Accordingly, the Board finds that the criteria for a separate rating for neurological abnormality have not been met. For these reasons, the Board finds that the service-connected cervical spine disability does not more nearly approximates the criteria for a rating in excess of 20 percent. As such, the preponderance of the evidence is against this claim, and the benefit-of-the-doubt doctrine does not apply. With respect to the claim, the Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's relevant symptoms to his service-connected disability. With that in mind, the Board has considered whether referral for extraschedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1) (2012). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Thun, 22 Vet. App. 111; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran described, limitation of motion and pain on motion, are the symptoms included in the criteria found in the rating schedule for his disability. Because the schedular rating criteria is adequate to rate the spine disability, the other two steps in the analysis of extra-schedular ratings need not be reached. In the absence of exceptional factors associated with the Veteran's cervical spine disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in March 2007, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim. It is therefore inherent that the he had actual knowledge of the rating element of the claim. The March 2007 letter, as well as a June 2012 supplemental statement of the case, also provided him with notice of the type of evidence necessary to establish an effective date for the disability on appeal. Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA, private treatment records, and SSA disability records. Next, VA spine examinations were undertaken in March 2007, January 2009, and January 2012. During the most recent VA examination in January 2012, afforded pursuant to the Board's November 2011 remand, the VA examiner reviewed treatment records, interviewed the Veteran, reported on the Veteran's medical history, and performed range of motion testing with clinical measures. As explained in detail above, the Board finds that the conclusions reached and rationale given in the January 2012 VA examination are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A rating in excess of 20 percent for residuals of C2 and C3 spinous process fracture is denied. REMAND As stated above, during the pendency of this appeal, the Court held in Rice that a request for a TDIU is not a separate claim for benefits, but rather, can be part of any claim for increased compensation. If the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Pursuant to the Board's remand, the Veteran underwent a VA examination of his cervical spine disability in January 2012. At that time, he reported that he stopped working at the post office in 1985 because of neck and low back pain. The VA examiner later described the impact of the Veteran's back disability on his ability to work, finding that active physical work would be difficult in regard to the Veteran's cervical spine disability alone. The January 2012 VA examiner further noted that it would be conceivable that he could do sedentary work if it were not for all his other problems. Upon consideration of the foregoing, the Board finds that this evidence raises a claim for entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Obtain clinical records from the VAMC White City for the period from March 2012 to the present. 2. Send the Veteran a notice letter pertaining to a claim for entitlement to TDIU, to include a description of the evidence necessary to substantiate a claim for TDIU, the Veteran's duties to substantiate the record, and VA's duties. Allow for a reasonable period for response. 3. After any additional notification and/or development deemed necessary is undertaken, the TDIU claim should be adjudicated. If any benefit sought on appeal remains denied, the Veteran and should be provided with a supplemental statement of the case with appropriate time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs