Citation Nr: 1320170 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-24 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to restoration of a 20 percent disability rating for residuals of a right knee injury with degenerative joint disease, to include the propriety of the reduction for the period from May 1, 2008. 2. Entitlement to a disability rating in excess of 10 percent for residuals of a right knee injury with degenerative joint disease. 3. Entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease. 4. Entitlement to service connection for a right hip disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease. 5. Entitlement to service connection for a left hip disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease. 6. Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from October 1976 to May 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2007 and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Veteran testified at a Board hearing at the RO. A copy of this transcript is of record. In a September 2012 letter, the Board advised the Veteran that he was entitled to an additional Board hearing as the Veterans Law Judge (VLJ) who had conducted the March 2011 hearing was no longer employed by the Board. See 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012) (providing that the VLJ who conducts a hearing shall participate in making the final determination on the claim). The Veteran requested a new hearing, and in November 2012, the claim was remanded to schedule the Veteran for this hearing. In March 2013, the Veteran testified before the undersigned at a Board hearing at the RO. A transcript of this hearing is also of record. At the hearing, the Veteran submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The undersigned also granted a 60-day abeyance period for submission of additional evidence in support of the claims. To date, no additional evidence has been received. The issues of entitlement to a disability rating in excess of 10 percent for residuals of a right knee injury with degenerative joint disease; entitlement to service connection for a left knee disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease; entitlement to service connection for a right hip disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease; entitlement to service connection for a left hip disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease; and entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The RO complied with the procedural requirements for reducing the Veteran's disability rating for residuals of a right knee injury with degenerative joint disease on May 1, 2008, to include providing proper notification of the proposal to reduce the disability rating, and giving the Veteran the opportunity to submit evidence. 2. At the time of the reduction in May 2008, the 20 percent schedular evaluation for the Veteran's service-connected residuals of a right knee injury with degenerative joint disease had been in effect since June 2005, less than five years. 3. A November 2007 VA reexamination disclosed improvement in the service-connected residuals of a right knee injury with degenerative joint disease warranting the reduction of the 20 percent rating. CONCLUSION OF LAW The rating reduction from 20 percent to 10 percent for residuals of a right knee injury with degenerative joint disease, effective May 1, 2008, was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. On a reduction of a rating, the reduction stems from an action initiated by the RO, not the Veteran, and the reduction is not a claim or application for benefits under the VCAA. For this reason, the notice and assist provisions of the VCAA do not apply to a rating reduction. With a rating reduction, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). See Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997) (defining evidence which may be used in such determinations); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993); see also Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc) (standards for review of evidence). For the reasons set forth in detail below, the Board finds that there has been full compliance with the procedures of 38 C.F.R. § 3.105(e). II. Procedural Due Process The provisions of 38 C.F.R. § 3.105(e) allow for a rating reduction when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing within 30 days of notification. Thereafter, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105. The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In this case, the requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 20 to 10 percent for residuals of right knee injury with degenerative joint disease were followed by the RO. In December 2007, the RO notified the Veteran of the proposed rating reduction and sent him a copy of the proposed rating reduction. The RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced. This letter notified the Veteran that he had 30 days to request a predetermination hearing before the RO. The Veteran did not request a predetermination hearing. He also submitted no evidence in response to this correspondence. The RO took final action to reduce the disability rating in a rating decision in February 2008, in which the rating was reduced from 20 percent to 10 percent, effective May 1, 2008 (a date over 60 days from the date of the notice to the Veteran). The RO properly adhered to the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 20 to 10 percent for residuals of a right knee injury with degenerative joint disease. The Veteran does not contend otherwise. III. Legal Criteria In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In a rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the Veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. at 355. The examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201, 203-04 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Specific requirements for reducing a rating are set forth in 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. The requirements of § 3.344(a) and (b), however, only apply to ratings in effect for five years or more. 38 C.F.R. § 3.344(c). The relevant period for this purpose is calculated from the effective date of the establishment of the former rating, to the effective date of the reduction. See Brown v. Brown, 5 Vet. App. 413 (1993). Here, since the 20 percent rating was in effective from June 30, 2005, and reduced to 10 percent, effective May 1, 2008, the 20 percent rating had been in effect for less than the requisite five-year period of time as set forth in 38 C.F.R. § 3.344(c). Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable in this case. In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120, 123-24 (2002). The burden of proof is on VA. Brown, 5 Vet. App. at 421 (1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. IV. Analysis Service connection for residuals of a right knee injury with degenerative joint disease was awarded by a January 1990 rating decision. In November 2005, the Veteran was awarded an increased rating, to 20 percent for his residuals of a right knee injury with degenerative joint disease (effective June 30, 2005). The 20 percent rating was reduced to 10 percent by a February 2008 rating decision. The 20 percent rating was assigned primarily based upon a September 2005 VA orthopedic examination report. At that examination, the examiner did not review the claims file. The Veteran complained of increased pain and swelling that had become more intense over the last several years. The Veteran had no increased limitations with flare-ups or repetitive motions. He worked unloading and loading trucks for the post office, which was heavy work. He used no cane, but used an over-the-counter brace on his knee. He was able to drive and take care of activities of daily living. He had no instability, incoordination, excess fatigability, or weakened movements. He complained of painful motion of the knee. On physical examination, the Veteran walked with a normal gait and had obvious suprapatellar effusion. He had joint line tenderness. He could only flex to 30 degrees with pain. He had zero degrees of extension. On repetitive testing, the Veteran reported pain. Crepitation was not found. The Veteran also had pain in his cruciate ligaments, but these ligaments, as well as the collateral ligaments, appeared to be intact. An X-ray revealed minor posterior patellar osteophytes and minor marginal osteophytes from medial and lateral joint compartments. There was no evidence of narrowing of the joint space. The Veteran was found to have internal derangement, recurrent effusion, and chronic and recurrent pain of the right knee. The reduction appears to be based primarily on findings reported on a November 2007 VA orthopedic examination. The examiner reviewed the Veteran's claims file in conjunction with the examination. During that examination, the Veteran complained of a stabbing and burning pain in his knee approximately two to three times per week. It was not constant. The right knee swelled frequently. The Veteran used no assistive device. He continued to work at the post office, and his knee did not bother his occupation. It also did not interfere with his daily activities. There were no additional limitations with flare-ups. Examination of the right knee showed no deformity, no swelling, and no palpable tenderness. Right knee flexion was to 130 degrees without pain with full extension (to zero degrees) without pain. The Veteran had no laxity or instability. Active range of motion did not produce any weakness, fatigue, or incoordination, and there was no additional loss of motion with repetitive movements. The Veteran was diagnosed with minimal posterior patella osteophytes of the right knee with chronic right knee pain, status post arthroscopic surgery in 1995. X-rays of the right knee revealed mild degenerative changes as evidenced by lateral patella osteophytic bony changes, tibial spine spurring, and mild lateral compartment joint space narrowing. Private records from this period were also considered. On an examination in September 2006, the Veteran reported playing basketball and having a flare of his knees and left leg radiculopathy for the last two to three weeks. He was found to have a click/crepitus with pain, an abnormal gait, and limited range of motion due to pain of the knees (the record is unclear as to which knee or which symptoms affected the Veteran bilaterally). The severity of all of the symptomatology was found to be moderate/severe and affected activities of daily living. The Veteran's residuals of a right knee injury with degenerative joint disease disability are currently rated under Diagnostic Code 5010-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2012). Here, the hyphenated diagnostic code indicates arthritis due to trauma (Diagnostic Code 5010) is rated under the criteria for limitation of flexion of the leg (Diagnostic Code 5260). 38 C.F.R. § 4.20 (2012). Under Diagnostic Code 5010, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. For rating purposes, normal range of motion in a knee joint is from 0 degrees (extension) to 140 degrees (flexion). 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 10, 20, or 30 percent where there is limitation of flexion of the leg to 45, 30, or 15 degrees, respectively, and for ratings of 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). VA's General Counsel has also held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5010 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). For the Veteran to warrant a 20 percent rating for the right knee, his disability would need to result in 30 degrees of limitation of flexion, or limitation of extension to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. He could also be assigned a separate rating for recurrent subluxation or lateral instability. See id., Diagnostic Code 5257. Here, the pertinent evidence has reflected a significant improvement of the Veteran's right knee. On examination, the Veteran's flexion increased by 100 degrees, and he had no swelling, pain, or tenderness on examination or during range of motion testing. The Board notes that the November 2007 report of VA examination upon which the reduction was based is adequate for rating purposes as it reflects the examiner interviewed and examined the Veteran, reviewed the claims file, and reported the clinical findings in detail. See Tucker, 2 Vet. App. at 203-04; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). At his November 2007 VA examination, the Veteran reported no problems at work or interference with daily activities due to his right knee. While this was similar to his statements in his September 2005 VA examination, his flexion was significantly decreased on examination in September 2005. Further the Veteran reported a great deal of pain during the September 2005 examination, and tenderness and swelling was found by the physician performing this examination. In September 2005, the Veteran also reported recurrent and chronic pain. In November 2007, the Veteran had no evidence of tenderness or pain on examination, and he denied being in constant pain; rather, he reported pain occurring two to three times per week on flare-ups. The Board has also considered the Veteran's private records documenting a flare-up of knee pain after a sports injury in September 2006, but this does not change the Board's finding, as there is only an indication that the Veteran had an unspecified loss of motion and pain of the bilateral knees. Overall, the relevant evidence of record reflects that when range of motion testing was performed, the Veteran's right knee flexion was greatly improved. Further, on physical examination in November 2007, there was no objective or subjective complaints of pain. The Board notes that flexion of the right knee was the key factor in assigning the 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. In sum, the overall evidence reflects that the Veteran's service-connected residuals of a right knee injury with degenerative joint disease improved. As such, the Board finds that the reduction was proper and restoration of the 20 percent rating for this disability is not warranted. ORDER The reduction for residuals of a right knee injury with degenerative joint disease for the period from May 1, 2008 was proper; entitlement to restoration of a 20 percent disability rating is denied. REMAND The Veteran seeks service connection for entitlement to a disability rating in excess of 10 percent for residuals of a right knee injury with degenerative joint disease; and entitlement to service connection for a left knee disability, a right hip disability, a left hip disability, and a low back disability, all to include as secondary to service-connected residuals of a right knee injury with degenerative joint disease. Before the Board can adjudicate these claims on the merits, additional development is required. 38 C.F.R. § 19.9(a) (2012). I. VA Examination The Veteran was afforded a VA examination in November 2007 in connection with his claim for an increased initial rating for residuals of a right knee injury with degenerative joint disease. The Veteran later testified at his March 2011 hearing before the Board that his right knee has worsened since his last VA examination. See Board Hearing Tr. at 6. Further, the Veteran's last examination was almost six years ago. The evidence reflects that within that time frame, the Veteran underwent right knee surgery in July 2009 after the RO reduced the service-connected right knee injury from 20 percent to 10 percent. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a more contemporaneous VA examination is necessary for the purpose of ascertaining the current severity of the Veteran's service-connected residuals of a right knee injury with degenerative joint disease. II. VA Opinions Here, the Veteran has argued that his claimed disabilities started in service or are due to his service-connected residuals of a right knee injury with degenerative joint disease. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). In November 2007, the Veteran was afforded a VA examination in response to his claims for service connection for a left knee disability, a right hip disability, a left hip disability, and a low back disability. After a full examination, the Veteran was diagnosed with minimal posterior patella osteophytes of the right knee, degenerative joint disease changes of the left knee with lateral patella osteophytic bony formation, mild bilateral degenerative arthritis of the hips, and lumbar spine degenerative disc disease at L5-S1 and bilateral L5-S1 degenerative facet disease. The examiner provided an opinion, noting that the Veteran's current right hip, left hip, left knee, and low back disorders were less likely than not related to his right knee condition. The examiner noted that the Veteran had degenerative changes in his lumbar spine, both hips, and left knee, which were due to the aging process unrelated to his right knee condition. Section 3.310 permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, however, the examiner did not provide an opinion as to whether the Veteran's current service-connected residuals of a right knee injury with degenerative joint disease was aggravating any of his claimed disabilities. There also was no opinion regarding service connection on a direct basis. In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. See Barr, 21 Vet. App. at 311. The Board finds the VA opinion to be inadequate for the reasons discussed above. Therefore, the Board has determined that the Veteran should be afforded a VA evaluation and opinion to determine the nature and etiology of each claimed disorder. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the current nature and severity of his service-connected residuals of a right knee injury with degenerative joint disease. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the examination. Any indicated studies (specifically including ranges of motion) should be completed, and the examiner should also determine whether there is subluxation or instability of the right knee (and if so, the severity of such findings). Objective evidence of the extent of any pain, incoordination, weakened movement, and excess fatigability on use should be described. To the extent possible, the functional impairment due to pain, incoordination, weakened movement, and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. If this is not possible, the examiner should provide an explanation as to why he or she cannot provide this information. 2. Schedule the Veteran for an evaluation to determine the nature and etiology of his right hip, left hip, left knee, and low back disabilities. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by the examiner in conjunction with the evaluation. As to each diagnosed disability, the examiner should provide opinions on the following questions: (a.) Is it at least as likely as not (50 percent or greater) that the disability is related to an event or injury during the Veteran's active service, to include being hit with a duffle bag and lifting ammunition. (b.) Is it at least as likely as not (50 percent or greater) that the disability is (a) proximately due to or the result of, or (b) aggravated by any of his service-connected residuals of a right knee injury with degenerative joint disease, to include by chronic pain caused by this disability? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. A comprehensive rationale must be provided for all opinions rendered, and the examiner should discuss any relevant evidence of record used in formulating the opinion. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide thorough reasons as to why an opinion cannot be made without resorting to speculation. 3. The Veteran is hereby notified that it is his responsibility to report for a VA examination, and to cooperate in the development of these issues. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full. Review the opinions and reports to ensure that they are in complete compliance with the directives of this REMAND (to include ensuring that the question has been adequately answered). Any deficiencies should be corrected. 5. Thereafter, readjudicate the issues on appeal, considering all evidence of record, to include new evidence submitted since the last adjudication. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford him a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Paul Sorisio Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs