Citation Nr: 1318758 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 10-29 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to an increased disability rating in excess of 40 percent for diabetes mellitus, type II. 3. Entitlement to a finding of total disability based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from May 1968 to April 1969. This appeal comes before the Board of Veterans' Appeals (Board) from November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2012, the Veteran testified at a hearing before the undersigned at the RO. A transcript of this hearing was prepared and associated with the claims file. The Veteran is currently service-connected for diabetes mellitus, type II, at a 40 percent disability rating; and erectile dysfunction, claimed as sexual dysfunction associated with diabetes mellitus, type II, at a noncompensable rating. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to an increased disability rating in excess of 40 percent for diabetes mellitus, type II, and 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. FINDING OF FACT A chronic fatigue disability was not shown in service and has not been shown by competent probative evidence to be related to a disease or injury of service origin or proximately due to the Veteran's service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a chronic fatigue syndrome have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. 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); 38 C.F.R. §§ 3.102, 3.56(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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) that the claimant is expected to provide. The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In January 2009, the agency of original jurisdiction (AOJ) provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. This letter also provided the Veteran with the notice pursuant to Dingess. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The VA has obtained copies of the Veteran's service treatment and personnel records, and has reviewed the evidence in the Virtual VA system. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The Veteran's service treatment records and VA medical records are in the file. In addition, the Veteran testified at the Board hearing that he was not in receipt of Social Security Administration (SSA) Disability benefits that warranted obtaining additional records. Moreover, the Board finds that any underlying records in connection with the denial of benefits are irrelevant as the central question here is a nexus one which has been addressed by the medical evidence already of record. Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The record indicates that the Veteran was also afforded a VA examination in August 2011, and the results of which have been included in the claims file for review. This examination involved review of the claims file and thorough examinations of the Veteran. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. While the Veteran contends that the VA examination was inadequate because the examiner did not perform any diagnostic tests, the Board disagrees. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As stated, the Board finds that that August 2011 examination report on file contains sufficient findings with which to properly evaluate the Veteran's claim for entitlement to service connection for chronic fatigue syndrome and is thus deemed adequate. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, in March 2012, the Veteran had the opportunity to testify at a Board hearing at the Muskogee RO, over which the undersigned presided. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Board hearing, the undersigned clarified the issue on appeal, inquired as to the etiology of the Veteran's asserted symptoms, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Byrant. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Merits of the Claim The Veteran claims his current chronic fatigue is related to his service-connected diabetes mellitus, type II. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases 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; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, the Board notes that the Veteran has claimed entitlement to service connection for chronic fatigue syndrome, which is not subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). As such, the Veteran cannot establish service connection solely based on lay statements of continuity of symptomatology since service. Moreover, the Veteran's specific contention is that his chronic fatigue is secondary to his diabetes mellitus. Service connection may also be granted for a disability which is proximately due to or the result of a service-connection disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). As such the Board will address the Veteran's claim for service connection for chronic fatigue syndrome on both direct and secondary bases. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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, (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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not always accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis According to the Veteran's in-service treatment records, there are no complaints, treatment, or diagnosis for chronic fatigue syndrome. The April 1969 Separation examination was also silent for any abnormalities. In addition, the Veteran's Report of Medical History at separation did not indicate any chronic fatigue and the Veteran stated he was in good health. In March 2012, the Veteran testified before the Board that he believed his chronic fatigue was secondary to his service-connected diabetes mellitus, not from service. He stated that he did not experience symptoms of chronic fatigue during service but that it started around the same time he was diagnosed with diabetes mellitus, type II. The Veteran further testified that his VA examination, which took place at that Muskogee Medical Center, was inadequate as the necessary tests were not conducted. According to the Veteran's post-service treatment records, the Veteran has at various times complained of fatigue, weakness, general malaise, unrefreshing sleep, and depression. In January 1990, the Veteran complained of weakness at the Wewoka Indian Health Center and stated that it started one or two months prior. In August 2008, the Veteran complained of chronic fatigue and that his energy level was steadily worsening and has trouble getting out of bed on some days. In a February 2010 VA treatment record, Dr. R.F. stated " I have reviewed the diagnosis of chronic fatigue syndrome with the [Veteran]. Specifically he is not having any memory loss but he does have problems with concentration. He does not have a sore throat nor does he have swollen glands. He does complain of multiple joint pains that he attributes to rheumatoid arthritis he does admit to unrefreshing sleep and malaise. He denied any headaches." In an April 2010 letter, the Veteran's doctor at the Wewoka Indian Health Center, Dr. R. F., stated that he treated the Veteran for his diabetes and that for the past six years he complained of problems with concentration, malaise, unrefreshing sleep, and multiple joint pains. Dr. R. F., further stated he "believes his symptoms and findings satisfy the diagnosis of Chronic Fatigue Syndrome." There is also a March 2009 letter from G.T., P.A. in which he reported that the Veteran was being treated for diabetes mellitus, hypertension, rheumatoid arthritis, chronic degenerative joint disease, and most recently depression. G.T. maintained that when the Veteran was seen in August of last year, he told the medical provider that his energy level had been steadily worsening and some days he had trouble even getting out of bed. G.T. noted that it was felt the Veteran's fatigue was more general malaise than exertional fatigue. In August 2011, the Veteran was afforded a VA examination specifically to assess the chronic fatigue syndrome. Again, the Veteran reported that it started six or seven years ago when he was diagnosed with diabetes. He stated he feels weakness all the time and gets tired quickly. He denied having a fever, sore throat, headaches, enlarged lymph nodes. He stated he has joint pain. He stated his sleep pattern varies as he can sleep all day, or sleep during the day and stay awake at night. The Veteran reported symptoms of constant generalized weakness, sleep disturbances, forgetfulness, and other symptoms. A physical examination revealed no evidence of pharyngitis, cervical lymphadenopathy, axillary lymphadenopathy. The Veteran was alert, oriented, and not in any distress. Upon review of the claims file, physical examination, and the Veteran's lay history, the examiner determined he did not meet the criteria for chronic fatigue syndrome. The VA examiner acknowledged that "weakness and tiresomeness is one of the symptoms of diabetes mellitus." The VA examiner further stated that the Veteran's subjective symptoms of generalized joint pains, back pain of degenerative disc disease, and arthritis of the knee could also cause fatigue and weakness. The VA examiner indicated that at least six of the ten chronic fatigue syndrome diagnostic criteria had not been met. The Board recognizes that there is conflicting evidence regarding whether the Veteran has a current diagnosis of chronic fatigue syndrome. However, regardless of whether the Veteran has a current diagnosis of chronic fatigue syndrome, and regardless of whether it is on a direct and secondary bases, the Veteran's claim must be denied for the reasons that follow. The Board acknowledges Dr. R. F.'s April 2010 letter, and the VA treatment records in 2010, which indicate the Veteran has a diagnosis of chronic fatigue syndrome. However, the evidence of the record does not establish an etiological relationship between the Veteran's service-connected diabetes mellitus and the chronic fatigue syndrome. While Dr. R. F.'s letter supports the diagnosis, there is no clear indication it is related to his military service or secondary to his service-connected diabetes mellitus. Similarly, while the VA treatment records also suggest a current diagnosis, there is no evidence it is related to the Veteran's military service or his service-connected diabetes mellitus. The only evidence of record in support of the Veteran's claim consists of his own lay statements. The Board acknowledges the Veteran contentions that his chronic fatigue syndrome is related to his diabetes. The Veteran is considered competent to report the observable manifestations of his claimed disabilities. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). His assertions that he experiences symptoms of fatigue are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's complained of symptoms are comprised of a separate and distinct disease entity that is related to his service connected diabetes mellitus, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). The Board also acknowledges that the Veteran does not allege his chronic fatigue is related to service. Indeed, there is no objective medical evidence that relates his chronic fatigue syndrome to his military service. As previously stated, the Veteran's service treatment records are absent of any complaint, treatment, or diagnosis of chronic fatigue. The Veteran also stated at separation he was in good health. In addition, the United States Court of Appeals for the Federal Circuit has determined that a lapse of time is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). In this case, the reported symptoms of weakness occurred over twenty years after the Veteran separated from service. Furthermore, the Board cannot ignore the August 2011 VA examination (conducted expressly for the purpose of assessing the Veteran's claimed chronic fatigue) determination that there was no evidence of chronic fatigue syndrome. Here, the VA examiner reached this conclusion upon review of the claims file, including the post-service treatment records from the Wewoka Indian Health Center and the VA medical center, a physical examination, and a collection of the Veteran's lay statements. The VA examiner stated that the Veteran's subjective symptoms of joint and back pain could cause his fatigue and weakness. The VA examiner also noted that "weakness and tiresomeness" are symptoms of diabetes mellitus. The foregoing statement is not an indication that the Veteran has a separate and distinct disease entity that has been related to diabetes mellitus. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The underlying malady or condition for the symptoms of "weakness and tiresomeness" was identified as diabetes mellitus which is already service connected. As such, after reviewing all the evidence, the Board is unable to grant the Veteran's claim for service connection for a chronic fatigue syndrome on a direct and secondary basis. The Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for chronic fatigue syndrome. This being the case, the doctrine of reasonable doubt is not for application concerning this claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal of this claim must be denied. ORDER Entitlement to service connection for chronic fatigue syndrome, to include as secondary to service-connected diabetes mellitus, type II, is denied. REMAND Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is currently rated at 40 percent disability for service-connected diabetes mellitus, type II. In an April 2013 statement, he contends his current rating does not accurately reflect his current symptomatology as his condition has worsened to include diabetic ulcers. The Board notes that the Veteran was last afforded a VA examination for his disability in August 2011. Therefore, the Veteran should be afforded a VA examination to determine the current severity of his service-connected diabetes mellitus, type II. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). Moreover, as the claim for TDIU is dependent upon the degree of impairment from service-connected disabilities, the appeal cannot be resolved until there is a determination of exactly what disabilities are service-connected, and ratings assigned. Remand of the inextricably intertwined TDIU claim is therefore required as well. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected diabetes mellitus, type II. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected diabetes mellitus, type II. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. Specifically, he or she should indicate whether the Veteran requires insulin, restricted diet, an oral hypoglycemic agent, and regulation of activities. The examiner should note the frequency of insulin injections required. In discussing the regulation of activities due to diabetes, he or she should state whether the Veteran's occupational and recreational activities must be restricted due to his diabetes mellitus. The examiner should also indicate whether the Veteran experiences episodes of ketoacidosis or hypoglycemic reactions, and if so, how frequently such episodes necessitate hospitalization or visits to a diabetic care provider. Additionally, the examiner should state whether there has been a progressive loss of weight or strength. The examiner should identify and describe all complications of the Veteran's diabetes as reported by the Veteran including any "diabetic ulcers." The examiner should also opine as to whether the diabetes mellitus renders the Veteran unable to secure or follow a substantially gainful occupation for which he would otherwise be qualified. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The claims file should be provided to the examiner for review and such should be acknowledged. All appropriate testing should be accomplished. 2. Thereafter, readjudicate the Veteran's claims for a rating in excess of 40 percent for diabetes mellitus, type II, and for a TDIU. If the benefits sought on appeal remains denied, the Veteran will be furnished a supplemental statement of the case with reasons and bases for the decision. The Veteran will be then given an appropriate opportunity to respond thereto. 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs