Citation Nr: 1324348 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-11 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right hip disability, to include bursitis, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability. 3. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability. 4. Entitlement to service connection for diabetes mellitus, to include as secondary to a service-connected disability. 5. Entitlement to a total disability rating based in individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had many years of service in the Army National Guard and Army Reserves. He had active duty for training from October 1962 to April 1963, active duty in June 1963 and September 1963, and active duty from August 1970 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Huntington, West Virginia. Jurisdiction of this matter is currently with the RO located in Montgomery, Alabama. In September 2011, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the undersigned clarified the issues on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. This matter was previously before the Board in December 2011 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, with regard to the issue being decided herein, the Board finds that the agency of original jurisdiction substantially complied with the December 2011 remand orders and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of service connection for right hip, lumbar spine, and cervical spine disabilities, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Diabetes mellitus was not manifested during service, was not diagnosed within the first post service year, is not secondary to a service-connected disability, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for the establishment of service connection for diabetes mellitus, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110 , 1112, 1116, 1131, 1133, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in September 2006 and December 2011 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, Social Security Administration, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Board further observes that this case was remanded in December 2011 in order to afford the Veteran a VA examination so as to assess the nature and etiology of his asserted diabetes mellitus. Thereafter, the Veteran was afforded a VA examination in January 2012. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the December 2011 remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as diabetes mellitus, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). A Veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The regulation is clear that such service includes only those with service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era also will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Diabetes mellitus is among the diseases associated with herbicide exposure for purposes of this presumption. However, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). See, also, McCartt v. West, 12 Vet. App. 164, 167 (1999) (the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran contends that he currently has diabetes mellitus that is manifested secondary to his service connected left foot and left leg disabilities. In various correspondence, the Veteran has asserted that his service-connected disabilities prevented him from engaging in physical activity which compounded his diabetes mellitus. Initially, the Board finds that the record does not indicate, and the Veteran has not contended, that he had active service in the Republic of Vietnam during his period of active service. Accordingly, as herbicide exposure has not been shown, service connection on a presumptive basis under 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6) is not available. The evidence of record also does not show that the Veteran's diabetes mellitus is otherwise directly related to his active service. In this regard, an enlistment report of medical examination dated in August 1962 shows that clinical evaluation of the endocrine system was normal. Urinalysis was negative for sugar and albumin. In the associated report of medical history, also dated in August 1962, the Veteran indicated that he had never had sugar or albumin in urine. Similarly, reports of medical examination dated in February 1971, January 1979, and November 1982 all show that clinical evaluation of the endocrine system was normal, and urinalysis was negative for sugar and albumin. Reports of medical history dated in March 1963, February 1971, January 1979, and November 1982 all show that the Veteran indicated that he had never had sugar or albumin in urine. Service treatment records dated in April 1982 and November 1982 show that the Veteran was evaluated for possible obesity and being overweight, however, there is no indication that he had manifested diabetes mellitus. Following service, private medical records from Internal Medicine Associates dated from August 1995 to December 1995 show it was indicated that the Veteran had borderline diabetes type II. Glucose was said to be borderline. Private laboratory findings dated from June 1999 to November 2001 show that the Veteran was shown to have intermittent elevated glucose levels. A private medical record from the Helen Keller Hospital dated in April 2000 shows that the Veteran indicated that he had recently discovered that he had type II diabetes. He added that his great aunt also had diabetes. VA outpatient treatment records dated from February 2002 to March 2006 show that the Veteran was treated intermittently for symptoms associated with diabetes mellitus. In November 2002, it was noted that the Veteran reported that he had to abandon his walking program due to his foot pain, and that he was not getting any exercise. The assessment was diabetes mellitus. A private medical record from D. K. Bowling, D.O., dated in June 2006, shows that, in pertinent part, the Veteran was said to have insulin dependent diabetes mellitus . It was also noted that he had difficulty walking and standing, even with the use of a cane, and that he was not suitable for employment. During his September 2011 hearing, the Veteran indicated that he had been first diagnosed with diabetes somewhere between 1975 and 1980. He added that he had no family history of diabetes mellitus on either side of his family going back two generations. He described that his service-connected leg and foot disabilities, along with his back and hip disabilities, prevented him for engaging in physical activity which aggravated his diabetes mellitus. While he could control his food intake, he would be unable to exercise. A letter from Dr. Bowling dated in August 2011, in pertinent part, reiterates that the Veteran has insulin dependent diabetes mellitus. A VA examination report dated in January 2012 shows that the Veteran was said to have diabetes mellitus that was being managed by restricted diet and a prescribed oral hypoglycemic agent. Following examination of the Veteran, the VA examiner concluded that the diabetes mellitus was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner explained that the foot and leg conditions were well documented in the service treatment records, as are their residuals. The service treatment records and annual examinations after the accidents show that the conditions occurred but that there were no limitations with respect to ongoing duties in that he was returned to full status by 1977. The records are silent with regard to any residuals that would have limited any activities. The examiner concluded that the type II diabetes mellitus was due to genetic and dietary factors. The Veteran was well-documented as being obese by the early 1980s, and he had well-documented metabolic syndrome in that he also has hypertension and hyperlipidemia. His obesity and diet were said to be the most likely causes of his diabetes mellitus. As noted, the Veteran's service treatment records are completely silent as to any diagnosis of or treatment for symptoms associated with diabetes mellitus. Service treatment records are highly probative as to the events occurring in service, as the records are generated with the specific purpose of ascertaining the individual's physical condition and are akin to statements of diagnosis and treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Following service, there is no indication of the manifestation of diabetes mellitus within one year of service discharge, and not until the August 1995 private medical record from Internal Medicine Associates showing an assessment of borderline diabetes type II. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since active service, may be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board finds probative the January 2012 opinion of the VA examiner that stated that the Veteran's current diabetes mellitus was not related to service or to a service-connected disability, but rather most likely caused by obesity and diet. This opinion is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board recognizes the Veteran's contentions that he has diabetes mellitus as a result of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. The Veteran, however, has not asserted that he has had a continuity of symptomatology since service. Moreover, he has not suggested that the diabetes mellitus are related to a disease or injury in service beyond the assertion that it is secondary to his service-connected disabilities. The Veteran's lay assertions as to the manifestation of his current disabilities are of limited probative value. While he is competent to describe that which he experienced in service and thereafter, any contentions that his diabetes mellitus is related to active service or to a service-connected disability are outweighed by the remaining evidence of record. Given the absence of evidence in support of the Veteran's claim, for the Board to conclude that the Veteran has the asserted diabetes mellitus as a result of service or a service-connected disability would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (2012); Obert v. Brown, 5 Vet. App. 30, 33 (1993). As such, the evidence in this case weighs against the claim of service connection for diabetes mellitus, to include as secondary to a service-connected disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for diabetes mellitus, to include as secondary to a service-connected disability, is denied. REMAND With regard to the issues of service connection for right hip, lumbar spine, and cervical spine disabilities, the Board finds that this case must be remanded for further development of the record to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Veteran contends that he has developed a right hip disability, a cervical spine disability, and a lumbar spine disability as a result of parachute jumps in the Guard and Reserves during both active duty and during training on other occasions. Service connection for left foot and leg disabilities has been established on the basis of injuries sustained in these accidents. A review of the Veteran's personnel records confirms that he was involved in two accidents during parachute jumps. Line of Duty determinations note that the first occurred in August 1964. In a September 1964 description of this accident, the Veteran notes that he landed on his right foot and side. The second accident occurred in October 1976. Although neither of these records notes injuries to the lumbar or cervical portions of the spine, the Veteran has testified that his back sustained traumas during these falls. In its December 2011 remand, the Board found that the Veteran's statements regarding injuries to his right hip and back from the aforestated falls are credible, particularly in view of his contemporaneous description of landing on the right side of his body in the first accident. The Board also specifically referenced an October 1970 X-ray study taken of the cervical spine and skull. The reason for the X-ray request is difficult to read but appears to state that the Veteran was a jumper and landed on a portion of his head and back or neck. The Board pointed out that a December 2006 VA joints examination had provided opinions as to whether the Veteran's claimed disabilities were etiologically related to his service connected disabilities, but did not provide opinions as to whether the claimed disabilities were directly related to the Veteran's parachute jumps. As such, the claims were remanded so that such an opinion could be provided. The Veteran underwent a VA examination in January 2012. He described the onset of chronic low back pain in the late 1970s and neck pain in the late 1980s. There had been two specific occasions when he landed on his rear in high wind. He had a loss of consciousness on one of these occasions. He was not treated for neck or back pain in service. He stated that he noticed these symptoms on a chronic basis while performing physical activities like picking up sacks of grain or fertilizer after service. He was assessed to have degenerative disc disease based on imaging and initially opted for conservative measures, but needed to have surgery in the early 1990s. He had a disc repair with bone graft. He has not needed low back surgery, but has been treated with epidural injections. He has had progressive symptoms. X-rays of the cervical and lumbar spines revealed arthritis. The diagnoses were cervical and lumbar spine degenerative disc disease. With regard to the asserted right hip disability, the Veteran described that the right hip started to hurt specifically after he broke his left foot in a parachute jump in 1976. He was not treated for his right hip in service, but started to have issues with chronic right hip pain in the late 1970s. He opted for conservative measures and had not had surgery. His symptoms were said to have become progressively worse. The diagnosis was right hip arthritis, confirmed by X-ray. Following examination of the Veteran, the VA examiner concluded that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the service treatment records were quite clear about the nature of the injuries that he had during his training and parachute jumps. He was assessed numerous times and this included orthopedic assessment. The documentation detailed the injuries to his foot and also left leg contusions from parachute incidents. The service treatment records were said to be silent with respect to any neck, back, or hip injury. There was no medical evidence that he had symptoms or treatment for these conditions in the service or during active duty periods. Annual examinations dated from the late 1970s and early 1980s did not reveal any conditions of the neck, back, or right hip. The examiner concluded that the current neck, back, and right hip conditions were most likely due to aging and also morbid obesity. The Board finds that as to the issues of service connection for right hip, lumbar spine, and cervical spine disabilities, the January 2012 VA examination report is of limited probative value. In this regard, the VA examiner specifically indicated in his conclusion that the service treatment records were silent with respect to any neck, back, or hip injury. However, as noted in the December 2011 Board remand, an October 1970 X-ray study was taken of the cervical spine and skull because the Veteran, a jumper, had landed on a portion of his head and back or neck. Moreover, in a September 1964 statement by the Veteran formulated in conjunction with an official investigation of the August 1964 injury, the Veteran stated that he had landed on his right foot and right side. The VA examiner in his January 2012 opinion does not appear to consider the August 1964 statement or the October 1970 X-ray study. Additionally, the Veteran has repeatedly asserted that he hurt his neck, back, and hips while making numerous parachute jumps during his period of active service. Lay statements dated in June 2005 and August 2011 corroborate that the Veteran had been injured while parachute jumping during service. Furthermore, the August 2011 lay evidence suggests that the Veteran had lost consciousness during these incidents, and that his resulting back and hip problems had been witnessed. The January 2012 VA examination report relied, in part, on the absence of service treatment records supporting the claims, but did not consider the competent reports of the Veteran and the lay evidence as to the onset and continuity of symptoms. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), it was determined that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. As such, a new VA medical opinion is required to determine the nature and etiology of the asserted right hip, lumbar spine, and cervical spine disabilities. As to the issue of entitlement to a TDIU, the claims being remanded herein are inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The other issues must be addressed by the RO/AMC before the Board renders a decision on the TDIU claim. Finally, any additional VA treatment records of the Veteran for the asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall ask the Veteran to identify all locations of VA treatment or evaluation for his asserted disabilities and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall forward the claims file and a copy of this remand to an appropriate VA physician to assess the nature and etiology of his asserted right hip, lumbar spine, and cervical spine disabilities. The examiner should indicate whether it is at least as likely as not that any right hip, lumbar spine, and/or cervical spine disability found on examination had its onset in service, had its onset in the year immediately following any period of service, or is otherwise the result of a disease or injury in service, including injury during parachute exercises in service. The physician is advised that the absence of evidence of treatment for a right hip, lumbar spine, and cervical spine disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. The Veteran, as well as those providing lay statements, are competent to report symptoms and history as witnessed, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the lay reports of symptomatology, he or she must provide a reason for doing so. 3. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The Veteran 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs