Citation Nr: 1323452 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 08-36 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating greater than 10 percent for residuals of right hip trauma. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania granting service connection and awarding a noncompensable rating. In August 2012 the RO increased the Veteran's rating for his hip disability from noncompensable to 10 percent under Diagnostic Code 5253-5252. In November 2012, the Board remanded the Veteran's claim for additional development, specifically a new VA examination. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran submitted an additional statement to the Board in March 2013 that is addressed in the remand portion of the decision below. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's right hip flexion has not been limited to 45 degrees or less at any time. He is able to toe-out more than 15 degrees, cross his legs, and does not have limitation of abduction with motion lost beyond 10 degrees. 2. The Veteran's right hip extension was limited to 5 degrees extension or less at his January 8, 2013 VA examination. 3. The Veteran has some muscle loss in his right hip due to surgery to remove shrapnel with some reduction in muscle strength and functional loss after repetitive use and a primary complaint of pain that affects ambulation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for limitation of right hip flexion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252 (2012). 2. The criteria for a 10 percent rating, but no higher, have been met for limitation of right hip extension. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251 (2012). 3. The criteria for a 10 percent rating, but no higher, have been met for right hip muscle weakness. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.56, Diagnostic Code 5316 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Limitation of motion of the hip is rated under diagnostic codes 5251, 5252, and 5253. See 38 C.F.R. § 4.71a, DCs 5251, 5252, and 5253 (2012). Hip flexion is measured from 0 degrees to 125 degrees and abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II (2012). For limitation of extension of the thigh, where extension is limited to 5 degrees, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a, DC 5251 (2012). For limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, DC 5252 (2012). DC 5253 addresses impairment of the thigh. A 10 percent evaluation is assigned for limitation of rotation where the affected leg cannot toe-out more than 15 degrees. 38 C.F.R. § 4.71a, DC 5253. A 10 percent evaluation is assigned for limitation of adduction where the legs cannot be crossed. Id. A 20 percent evaluation is assigned for limitation of abduction with motion lost beyond 10 degrees. Id. In general, the rating criteria take into account pain and other symptoms. However, the Board must consider functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 when deciding whether a higher disability evaluation is warranted. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran underwent a VA examination in November 2007. His range of motion was measured to 65-70 degrees flexion, 15-20 degrees abduction, adduction to 15 degrees, extension to less than 10 degrees, external rotation to 40 degrees, and internal rotation to 30 degrees. Painful motion was noted on flexion. Range of motion was not limited on repetitive use. The Veteran was afforded a VA joints examination in March 2010. The Veteran reported that with prolonged walking or stair climbing his right hip weakens. He also reported deformity, giving way, instability, pain, stiffness, and weakness. He did not report flare-ups. He did report being limited to standing for 15 to 30 minutes and walking a few yards. The examiner described his gait as waddling and found tenderness to palpation in his right hip. The examiner noted the Veteran had pain with motion and measured his range of motion as flexion to 90 degrees, extension to 0 degrees, and abduction to 25 degrees. The examiner noted pain on motion but that range of motion was not limited with repetitive use. He noted the Veteran was unable to cross his right leg over his left or toe-out 15 degrees. The Veteran underwent another VA examination in October 2010. The Veteran reported pain, stiffness, limited motion, instability, and deformity of his right hip. The examiner found he had an abnormal gait favoring his right hip. His range of motion in his right hip was measured to 90 degrees flexion, 30 degrees extension, and 45 degrees abduction. He was able to cross his right leg over his left and toe-out more than 15 degrees. The examiner found the Veteran had pain on motion. He did not find additional limitations on range of motion with repetition. The examiner noted his hip disability prevented the Veteran from prolonged ambulation, bending, and lifting. The Veteran was afforded another VA examination in January 2013. The Veteran reported he experiences flare-ups in the form of muscle spasms in his right lower leg and tenderness to palpitation over the upper, lateral right hip with prolonged sitting, standing, walking, or weather changes. On range of motion testing, the Veteran's right hip flexion was measured to 100 degrees with painful motion beginning at that point and right hip extension was measured to five degrees with painful motion beginning at that point. Abduction was not lost beyond 10 degrees or limited such that the Veteran could not cross his legs. Rotation was not limited such that the Veteran could not toe-out more than 15 degrees. There was no additional loss of range of motion on repetitive use. The examiner did find functional loss on repetitive use in the form of less movement than normal; weakened movement; pain on movement; deformity; disturbance of locomotion; and interference with sitting, standing, or weight-bearing. The examiner also noted localized tenderness or pain to palpation of the joints/soft tissue on the right hip. Muscle strength on right hip flexion was rated as 3/5, active movement against gravity, and as 4/5, active movement against some resistance, on right hip abduction and extension. No ankylosis was found. As a result of his 1969 surgery to remove shrapnel from the right side of his hip, the examiner found the Veteran had scarring, underlying muscle loss, and tenderness to palpation. The Veteran reported using crutches or a cane for ambulation in the morning due to pain. The Board has reviewed all of the evidence and finds that an initial rating in excess of 10 percent for limitation of flexion of the hip under DC 5252 is not warranted. See 38 C.F.R. § 4.71a. In an August 2012 rating decision, the RO granted the minimum 10 percent rating under 38 C.F.R. § 4.59, which allows for the assignment of the minimum compensable rating for painful motion of a joint. The evidence, including the Veteran's most recent January 2013 VA examination, shows that the Veteran's flexion is far greater than allowed for a compensable rating based on limitation of flexion, even with consideration of his complaints of pain, the DeLuca criteria, and other reported symptomatology. The Veteran's right hip flexion was measured at 90 degrees in March and October 2010 and 100 degrees in January 2013. The January 2013 examiner further clarified that the Veteran's painful motion did not begin until 100 degrees. Thus, an increased rating is not warranted. It is important for the Veteran to understand that without taking into consideration his problems with pain, the current evaluations could not be justified, let alone a higher evaluation. Regarding limitation of extension of the hip, the Board finds a compensable rating is warranted from January 8, 2013 under DC 5251. At his January 2013 VA examination, the examiner found the Veteran's right hip extension was limited to 5 degrees. 38 C.F.R. § 4.71a. A ten percent rating is the maximum schedular rating available under DC 5251. The Board further finds the Veteran is not entitled to a rating under DC 5253. The evidence shows the Veteran has had greater than 10 degrees abduction in all VA examinations. At his VA examinations in October 2010 and January 2013 the Veteran was found to be able to toe-out more than 15 degrees and cross his legs, although at his March 2010 VA examination he was found unable to do either. The Board finds the more recent examinations more accurately represent his abilities. Thus, the Board finds a preponderance of the evidence is against finding the Veteran is entitled to a rating under DC 5253. However, ratings are also available for muscle disability. Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d) (2012). A slight disability is characterized by a single wound of muscle without debridement or infection; a service department record of superficial wound with brief treatment and return to duty; healing with good functional results; no cardinal signs or symptoms of muscle disability; minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe disability contemplates a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; service department record or other evidence showing hospitalization for a prolonged period for treatment of wound; and record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side; and tests of strength and endurance compared with sound side demonstrating positive evidence of impairment. Severe muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side. 38 C.F.R. § 4.56(d)(4). If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement. 38 C.F.R. § 4.56(c). Diagnostic Codes 5313-5318 cover the muscle groups of the pelvic girdle and thigh. 38 C.F.R. § 4.73. Diagnostic Code 5316 governs the Group XVI, including flexion of the hip. The criteria set forth under Diagnostic Code 5316 provide that a noncompensable rating is warranted for a slight disability; a 10 percent rating is warranted for moderate disability; a 30 percent rating is warranted for moderately severe disability; and a 40 percent rating is warranted for severe disability. Id. The Veteran was hit by shrapnel in his right lower abdomen, right lateral hip, right lower leg, and ankle in service in 1969. At a January 2013 examination, the VA examiner noted that the Veteran has underlying muscle loss as a result of his 1969 shrapnel removal surgery and his muscle strength on right hip flexion was rated as 3/5, active movement against gravity, and as as 4/5, active movement against some resistance, on abduction and extension. The examiner also noted scarring. The Veteran has consistently reported pain affecting his ability to ambulate. Based on the forgoing, the Board finds the Veteran is entitled to a 10 percent rating for moderate muscle disability of his right hip under DC 5316. His disability picture does not more closely approximate the criteria for the next higher rating. The Veteran has told VA examiners that his shrapnel wounds did not become infected, and service treatment records describe them as superficial. The January 2013 examiner did find some functional loss on repetitive use and some loss of strength in the Veteran's right hip not noted in the Veteran's left hip, but even considering that impairment, the Board finds the Veteran's muscle disability as a whole is more properly rated as moderate. The Veteran primarily has complained of pain with prolonged sitting, standing, walking, climbing, and cold/damp weather. In March 2010 he reported prolonged walking or stair climbing would weaken his hip and make him feel like he might fall, but he did not report that problem at subsequent examinations. He has not reported any impairment of coordination or uncertainty of movement. Overall, the Board finds the Veteran's right hip muscle disability does not more closely approximate the criteria for a rating of moderately severe. The Board has also considered the applicability of other potentially applicable diagnostic codes, beyond the ones above. Other diagnostic codes related to the hip include DC 5250 for ankylosis of the hip, DC 5254 for flail joint, and DC 5255 for impairment of the femur. The medical evidence does not indicate the Veteran's right hip disorder has resulted in a flail joint or impairment of the femur, so DCs 5254 and 5255 are inapplicable. DC 5250 is also inapplicable as ankylosis has not been found on examination. Thus, the preponderance of the evidence is against finding the Veteran is entitled to a rating under DC 5250, 5254, and 5255. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue; however the Board finds its decisions in this case are based on a preponderance of the evidence. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In this regard, beyond the grants above, the Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, there is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for this disability. The issue of TDIU will be address below. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In this regard, it is important for the Veteran to understand that without taking into consideration his concerns there would be little basis for the current evaluations, let alone a higher evaluation. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2007. In the letter, the RO informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. The Veteran's claim for a higher initial rating arises from the Veteran's disagreement with the initial rating assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records identified by the Veteran. The Veteran has also submitted statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in January 2013. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with sufficient information to rate the Veteran's disability, including, as required by the November 2012 Board remand, findings of at what degree pain on movement of the right hip begins. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER Entitlement to an initial rating in excess of 10 percent for limitation of flexion from residuals of right hip trauma is denied. Entitlement to an initial 10 percent rating for limitation of extension from residuals of right hip trauma is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. Entitlement to an initial 10 percent rating for right hip muscle disability is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMAND In a March 2013 statement to the Board the Veteran's representative requested that the Veteran be reconsidered for individual unemployability as "he has been unable to work since 2007 due to the continuing problems with mobility of his legs, and hip problems, and other medical issues." The Veteran's representative further stated that the Veteran was scheduled for bilateral knee replacement surgery in April 2013 at the Montrose Medical Center in Montrose, Pennsylvania with possible follow-up care at Memorial Hospital in Towanda, Pennsylvania. He has also continued to seek care at the VA medical centers in Sayre and Wilkes Barre, Pennsylvania. The RO denied individual unemployability in April 2010; however, in December 2012 the Veteran's post-traumatic stress disorder rating was increased so that he now meets the schedular criteria for TDIU. The law provides that TDIU may be granted upon a showing that a Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Total disability ratings for compensation based on individual unemployability may be assigned on a schedular basis when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. After giving the Veteran an opportunity to file a formal claim for a TDIU, the RO should perform all additional evidentiary development necessary and adjudicate this matter in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Accordingly, the case is REMANDED for the following action: 1. Provide appropriate Veterans Claims Assistance Act notice with respect to the claim for a TDIU. Ask the Veteran to complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based upon Unemployability. Also ask the Veteran to furnish any additional information and/or evidence pertinent to the claims for a TDIU. 2. Assist the Veteran in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. 3. Once the above development is completed, schedule the Veteran for a VA examination. The examiner should be provided with the Veteran's claim file and asked to fully review it. The examiner should specifically indicate the Veteran's functional impairment solely due to his service-connected disabilities (PTSD, scars, residuals of right hip trauma, hypertension, loss of function of right lower right extremity associated with scar, residuals of fractured right toe, hearing loss, and perforation of the right tympanic membrane. The examiner should provide this opinion considering the Veteran's education and occupational experience, but irrespective of age and any nonservice-connected disabilities. Any opinion should be supported by a rationale. 4. When the development requested has been completed, the claim should be adjudicated. If the claim is denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs