Citation Nr: 1320606 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-05 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased disability rating for service-connected torn medial and lateral meniscus in the left knee from November 30, 2006, evaluated as 10 percent disabling from November 30, 2006 to February 5, 2010, and as 30 percent disabling from April 1, 2011. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active military service from January 1965 to October 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that, in pertinent part, denied a rating in excess of 10 percent for service-connected torn medial and lateral meniscus in the left knee from to November 30, 2006. In February 2011, the Board remanded the matter of the rating from November 30, 2006. The issue is recharacterized as listed on the title page of this decision to more accurately reflect the scope of the issue remaining on appeal. Following the February 2011 Remand, the RO granted a temporary total evaluation during the period from February 5, 2010, to April 1, 2011. The Veteran has not disagreed with any aspect of the temporary total rating. Therefore, no issue regarding that period is before the Board. The claim for an increased evaluation after April 1, 2011, remains on appeal, because the grant of a 30 percent evaluation is not the maximum rating allowed by law. The claim for an evaluation in excess of 30 percent for service-connected torn medial and lateral meniscus in the left knee from April 1, 2011, 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. FINDINGS OF FACT 1. The Veteran reported increased pain beginning in April 2007, but no effusion, no additional loss of range of motion, or other compensable objective finding or diagnosis was present, and the Veteran denied instability, locking, or giving way of the left knee. 2. The Veteran reported increased pain in July 2007, and magnetic resonance imaging (MRI) examination ordered on July 10, 2007, was interpreted as disclosing advanced cartilage loss, a meniscal tear in the medial compartment, and a complex lateral meniscus tear, among other findings. 3. The Veteran continued to retain actual range of motion from 1 degree of extension to 120 degrees of flexion prior to February 5, 2010, ambulated without an assistive device, and presented no subjective or objective evidence of instability, subluxation, or giving way of the left knee. CONCLUSION OF LAW From July 10, 2007 through February 10, 2010, the Veteran is entitled to a separate 20 percent evaluation for dislocated semilunar cartilage with pain, in addition to the 10 percent evaluation assigned for disability due to arthritis, left knee, with painful flexion. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.14, 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5258 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claims an increased evaluation in excess of 10 percent for left knee disability from November 30, 2011. Before addressing that appeal, the Board will consider whether VA has met its duties to notify and assist the Veteran. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2006 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication. After the Board's 2011 Remand, the claim for an increased rating was readjudicated. If there were any defect in the notice prior to the 2011 Board Remand, the notice provided by that Board decision and the following readjudication process cured any prior defect. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). No further action to provide notice is required. VA also has a duty to assist the Veteran in the development of a 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 Veteran has not identified any non-VA evidence relevant to the claim. Voluminous VA clinical records (totaling more than 1,000 printed, numbered pages) pertinent to the period at issue have been obtained. Those treatment records are sufficient to establish the manifestations of the left knee disability from November 6, 2006, through February 5, 2010, when the Veteran underwent surgical treatment of the left knee disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). These treatment records provide essential compliance with the Board's directive in the 2011 Remand that records of the Veteran's left knee treatment from December 2006 to the present be obtained. The Board notes that, to the extent that the most recent VA treatment records may not have been obtained, the evaluation of left knee disability after April 1, 2011, is addressed in the Remand appended to this decision. The Board also noted that, at the time the Board Remanded the appeal, the claims file did not reflect that the Veteran underwent total left knee replacement in February 2010. The Remand directed that VA examination of the left knee be conducted to determine the severity of service-connected left knee disability. Current VA examination would be unavailing to determine the severity of arthritis or the manifestations of torn meniscal cartilage, as that portion of the Veteran's left knee has been replaced with manufactured components. Therefore, it would be fruitless to require Remand for further development of medical evidence as to the manifestations of left knee disability prior to total knee replacement in February 2010. The lengthy treatment records are thorough and well-reasoned, took into account the Veteran's personal history/complaints, and addressed the relevant rating criteria. The Board therefore finds that the examinations provided during outpatient treatment were adequate for rating purposes. The 2011 Remand directed that the Veteran be afforded an opportunity to identify any additional evidence and that he be afforded VA examination. Those actions have been completed. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him 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). Claim for higher rating for knee disability Provisions governing claims for higher ratings for knee disability The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R., Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a Veteran has traumatic arthritis, that disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. The criteria used for evaluation under DC 5010 are those specified in DC 5003, the criteria for evaluating degenerative arthritis. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5003 further states that, where 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 affected by limitation of motion, to be combined, not added, under DC 5003. 38 C.F.R. § 4.71a. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97. The General Counsel subsequently clarified in VAOPGCPREC 9-98 that, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. If a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Additionally, separate ratings may be assigned, as well, for limitation of extension and flexion. VAOPGCPREC 9-2004. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension, the limitations must be rated separately to adequately compensate him for functional loss. The Board observes that the words such as "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Under DC 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees. For a 20 percent evaluation, limitation must be to 30 degrees. A 30 percent evaluation is warranted with limitation to 15 degrees of flexion. Under DC 5261, a noncompensable rating is assigned when knee extension is limited to 5 degree; when extension is limited to 10 degrees, a 10 percent rating may be assigned. With respect to disabilities specific to the knee, 38 C.F.R. § 4.71a, DCs 5256 through 5262, set forth relevant provisions. Specifically, DC 5256 permits a 30 percent rating for favorable ankylosis in full extension, or in slight flexion between 0 degrees and 10 degrees, while a Veteran will garner a 40 percent rating with ankylosis in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, DC 5256. DC 5258 provides for a maximum 20 percent evaluation for cartilage, semilunar, dislocated with frequent episodes of "locking," pain, and effusion into the joint, while DC 5259 allows a maximum of 10 percent for cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a, DCs 5258, 5259. Facts and analysis VA outpatient treatment records disclose that the Veteran complained of low back pain in December 2006; the December 2006 treatment note does not disclose any change in the Veteran's left knee impairment. In January 2007, the Veteran sought pain clinic evaluation for back pain. At that time, and again in February 2007 and in early April 2007, the Veteran's gait, station, and coordination were described as normal, and no change in the Veteran's left knee impairment was noted. On April 27, 2007, during pain clinic evaluation, the Veteran reported increased left knee pain and throbbing. A steroidal injection into the left knee was performed at that time. The Veteran's report of symptoms discloses no change in the Veteran's functional use of the left knee. The report does not provide a basis for a separate, compensable evaluation under any additional Diagnostic Code, as the Veteran denied instability, locking, or other symptoms. No diagnosis of dislocated cartilage or symptomatic residuals of removal of dislocated cartilage was assigned or suspected. Thus, the evidence reflects that the Veteran's left knee symptomatology, which consisted entirely of complaints of pain, was encompassed in the 10 percent evaluation assigned under DCs 5010 and 5260 for left knee arthritis and painful flexion without compensable limitation of flexion. During outpatient treatment conducted July 10, 2007, the Veteran manifested pain on extension beyond 60 degrees, a symptom not previously noted. There was no effusion, and the Veteran denied instability, locking, or giving way of the left knee. At this outpatient treatment visit, an MRI examination of the left knee was ordered. In September 2007, the Veteran sought evaluation for increased back pain, and an epidural corticosteroid injection to treat lumbar pain was administered, but no discussion of left knee disability appears in the September 2007 treatment notes. In October 2007, the Veteran was advised that the MRI of the left knee ordered in July 2007 confirmed advanced articular cartilage loss, medial compartment fragmentation, a tear of the medial meniscal, a complex tear, left lateral meniscus, and a possible loose body. The Veteran's case was reviewed in November 2007. The providers noted that he was stable to anterior and posterior drawer testing. His effusion was described as not "significant," and the providers confirmed that the Veteran did not have locking or loose body symptoms. Nevertheless, the evidence establishes that the providers assigned diagnoses of dislocated torn cartilage, and a 20 percent evaluation under DC 5258 is warranted from July 10, 2007, the earliest date on which the symptoms confirmed to be due to dislocated carriage were first factually ascertainable. The evidence since July 10, 2007, reflects that the Veteran continues to manifest noncompensable limitations of flexion and extension. In November 2007, the Veteran had "pretty good" range of motion from o degrees extension to 110 degrees of flexion. In November 2008, the Veteran had pain with flexion beyond 90 degrees. This limitation is noncompensable. The Veteran had pain on extension beyond 60 degrees, but the examiner did not indicate that the Veteran's extension was limited beyond that point by the pain. Because the Veteran did not manifest instability or locking, there was apparently some doubt as to whether dislocated cartilage was present; at least one provider opined that the Veteran's pain was due to an osteophyte rather than dislocated cartilage. Another MRI was conducted in December 2008. The provider who treated the Veteran in January 2009 reported that the December 2008 MRI confirmed increased signal, thought to represent cartilage tears, in the anterior lateral meniscus and in the medial meniscus. The Veteran retained range of motion from 1 degrees of extension to 120 degrees of flexion, although with pain on certain motions at the January 2009 outpatient evaluation. In November 2009, the Veteran complained of increased left knee pain following the most recent injection of Supartz into the joint. In November 2009, range of motion of the left knee was described as 0 degrees of extension to 1156 degrees of flexion; the examiner did not state where the Veteran's pain began or ended with motion. On evaluation in January 2010, the Veteran had range of motion to 110 or more degrees of flexion. The provider stated that the Veteran had a flexion contracture of 5 degrees. The Board interprets that statement as a finding that the Veteran lacked 5 degrees of complete extension. The Board notes that limitation of extension may be compensated separately from limitation of flexion. DCs 5260, 5261, DC 5261; VAOPGCPREC 9-2004. DC 5261 specifies that extension limited to 5 degrees is noncompensable and that extension limited to 10 degrees is compensable. Thus, limitation of 5 degrees of extension, as described in January 2010, is noncompensable. The Board must consider the Veteran's complaints of pain. However, a complaint of pain, or pain beginning at a certain point in the range of motion, does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As noted above, pain may result in functional loss if there is loss of ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance. The Veteran reported, during the period at issue, that he was unable to walk long distances due to left knee pain and that left knee pain limited his function "significantly." However, the Veteran's left leg strength was described as 5/5 at evaluation prior to surgery in January 2010. The Veteran remained able to walk independently, without an assistive device, although with a limp, and he continued to swim regularly every other day. The described limitations and pain are consistent with the 10 percent evaluation assigned for pain due to arthritis with noncompensable limitation of flexion and the 20 percent evaluation assigned for dislocated cartilage. There is no factual basis for assignment of a higher rating under the assigned Diagnostic Code, 5258, for dislocated cartilage, since the 20 percent rating assigned is the maximum available rating, and the 10 percent assigned for arthritis with noncompensable limitation of flexion is the maximum rating assignable under DC 5003 when only one joint is affected. During the relevant period, there is no factual basis for assignment of any additional rating code, as the Veteran had no compensable limitation of extension, there was no diagnosis or complaint of instability or subluxation, or other finding which may be separately evaluated under DCs 5256 to 5263. As noted above, the Board must consider the longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that there is no increase in disability during the period from November 30, 2006 to February 5, 2010, other than the onset of symptoms of, and MRI examination verifying, dislocated semilunar cartilage as of July 10, 2007. This determination is consistent with the provider's statements to the Veteran in October 2007, and thereafter, including throughout 2008 and 2009, advising the Veteran that, although additional corticosteroid or Supartz injections could be used to treat the symptoms of his left knee disability, the only long-term treatment was total knee replacement. The clinical records show essentially consistent symptoms throughout the period at issue, from July 10, 2007, to February 2010. The Veteran is entitled to a separate, 20 percent evaluation for dislocated semilunar cartilage, from July 10, 2007, in addition to the 10 percent evaluation assigned for arthritis with noncompensable limitation of flexion or extension, but is not entitled to an increased evaluation in excess of 10 percent under DC 5003 and DC 5260 prior to July 10, 2007, and the preponderance of the evidence is against an increased evaluation on a basis other than a separate, compensable additional 20 percent under DC 5258 from July 10, 2007. Extraschedular consideration The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture, during the period at issue in this appeal, so as to render impractical the application of the regular schedular standards during one or more periods. If there is an exceptional or unusual disability picture, during any of the periods on issue in this appeal, rendering impractical the application of the regular schedular standards, then referral to the appropriate officials for consideration of extra-schedular ratings during the exceptional period is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). As noted, first, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, in each of the rated periods. The rating schedule provides for additional or more severe symptoms than currently shown by the evidence. As discussed at length above, the Board has considered whether there is any symptom or factor of disability which is not considered in the assigned rating during the period from November 30, 2006 to February 2005. The Board finds no symptom that is not encompassed in the schedular rating for any portion of the considered period. The Veteran's left knee degenerative disease was considered "end-stage" for a lengthy period, with pain on motion and dislocated cartilage, considered within the assigned evaluations. The Veteran remained able to ambulate independently, without any assistance or any assistive device, up to the date of his surgery. There is no objective or subjective evidence of any disability symptom or factor of disability which is not encompassed within the assigned evaluations. Thus, the Veteran's disability picture for the period at issue is contemplated by the rating schedule under the rating assigned for that period. The assigned, staged, schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Even if the Board determined that the rating criteria were not adequate to address all of the effects of the Veteran's service-connected DJD, left knee, for some period, the Veteran's left knee disability does not present exceptional or unusual circumstances. As noted, the Veteran was retired from employment prior to the period addressed, and he remained able to perform activities of daily living independently, remained able to continue regular swimming for fitness, and able to appear for medical appointments unassisted. The Board does not find this to be an exception or unusual disability picture which might suggest that the Veteran cannot be adequately compensated by the regular rating schedule. The Board declines to refer the matter for extraschedular consideration. ORDER From July 10, 2007 through February 10, 2010, a separate 20 percent evaluation for dislocated semilunar cartilage with pain, in addition to the 10 percent evaluation assigned for disability due to arthritis, left knee, with painful flexion, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. REMAND By a rating decision prepared in January 2011 and issued in February 2011, the RO assigned a 30 percent evaluation for the Veteran's left knee disability, status post total knee replacement, effective April 1, 2011. VA outpatient treatment records disclose that the Veteran remained in knee rehabilitation at that time, and it was expected that his left knee would continue to improve. However, the Veteran has not been afforded VA examination of the left knee since the expiration of the temporary total evaluation for knee replacement during the post-surgical period. The Veteran contends that his left knee disability has increased in severity since the expiration of the period. The Veteran should be afforded contemporaneous VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA clinical records from April 1, 2011, to the present, and associate those records with the claims file or Virtual VA (electronic) file. 2. Afford the Veteran an opportunity to submit or identify any non-VA clinical records, or other evidence of any type, relevant to his left knee disability symptomatology from April 1, 2011, to the present. 3. Afford the Veteran VA examination as necessary to evaluate the severity of left knee disability from April 1, 2011, to the present. The claims file should be made available to and reviewed by the examiner, and the examiner should note such review in the report. All indicated tests and studies should be performed. The examiner should address the following: a. Describe the range of motion of the Veteran's left knee in degrees. State what range of motion is accomplished without pain, and state where in the range of motion the Veteran complains of pain. b. State whether left knee disability is manifested by weakened movement, excess fatigability, or incoordination, and describe the number of repetitions or type of motion which results in symptoms. Describe the Veteran's functional loss, such as additional range-of-motion loss due to any weakened movement, excess fatigability, pain, flare-ups or incoordination, expressed in degrees, if possible. c. Provide an opinion concerning the degree of severity (whether mild, moderate, or severe) of any instability or subluxation of the knee. Determine if the knee locks, and, if so, the frequency of the locking. d. Provide an opinion as to whether the Veteran's left knee disability has increased, decreased, or remained the same in severity during the period since April 1, 2011. If the severity has changed, describe the date of onset of the change and compare the current severity to the severity of disability before the apparent change. A full rationale must be provided for all stated medical opinions. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if appropriate. 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). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs