Citation Nr: 1327118 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 08-38 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a cardiac disability other than ischemic heart disease, claimed as congestive heart failure, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for hypertension, to include as due to exposure to Agent Orange. 3. Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2008 and November 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Cheyenne, Wyoming (RO). In November 2012, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In March 2013, the Board remanded the Veteran's cardiac disability and hypertension claims for further evidentiary and procedural development. The Board's prior remand directives and the subsequent actions by the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claims have been returned to the Board. In November 2012, the RO terminated a total disability rating based upon individual unemployability (TDIU), terminated eligibility to Dependents' Educational Assistance (DEA), and proposed a finding that the Veteran was incompetent for VA purposes. The Veteran was notified of this rating decision by a letter issued on November 23, 2012. By a February 2013 rating decision, the RO determined that the Veteran was not competent to handle the disbursement of VA funds. He was notified of this decision by a letter issued on February 5, 2013. As the Veteran has not initiated an appeal of the November 2012 or February 2013 rating decisions, the issues decided therein have not been developed for appellate review by the Board. The Veteran does have the remainder of the one-year period from November 23, 2012, and February 5, 2013, to file a notice of disagreement with the issues decided in the November 2012 and February 2013 rating decisions, respectively. In light of above, these issues are not properly before the Board at this time. Archbold v. Brown, 9 Vet. App. 124 (1996). Clarification of an issue on appeal As noted by the Board in March 2013, the Veteran initially filed a claim to establish service connection for congestive heart failure. However, because the record reflects diagnoses of various heart disabilities, to include paroxysmal atrial fibrillation, atrial flutter, and nonsustained ventricular tachycardia, the Board expanded the Veteran's claim to include all cardiac disabilities pursuant to the United States Court of Appeals for Veteran's Claims (the Court's) holding in Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Also, during the pendency of the present appeal, by a September 2011 rating decision, the VARO in Phoenix, Arizona, denied service connection for a "heart condition," specifically, ischemic heart disease, due to exposure to herbicides for the purpose of entitlement to retroactive benefits. Nehmer v. United States Veterans Administration, 284 F.3d 1161 (9th Cir. 2002) (Nehmer III); see also Nehmer v. United States Veterans Administration, 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); and the class action Order in Nehmer v. United States Veterans Admin., No. CV-86-6160 TEH (N.D. Cal. Dec. 12, 2000). No appeal was taken from that determination, and it is not before the Board for appellate review. In light of the above, as well as the most probative evidence of record which reflects that the Veteran does not have ischemic heart disease, (see e.g., an October 2011 statement from Dr. Thometz, and the September 2010 and May 2013 VA examination reports), the issue on appeal has, again, been recharacterized. Because the outcome of this claim is fully favorable to the Veteran, he is not prejudiced by the Board's actions in this respect. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Additional Note In July 2007, the Veteran filed a claim to establish service connection for hypertension, noting that he had been exposed to herbicides in the Republic of Vietnam. Despite the Veteran's assertions, the RO denied the Veteran's hypertension claim in the February 2008 rating decision without addressing presumptive service connection due to in-service exposure to herbicides under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e) (2012). The Veteran expressed disagreement with this determination in a timely fashion and subsequently perfected an appeal to the Board in March 2008. In a September 2008 statement, the Veteran specifically asserted that his hypertension was due to in-service exposure to herbicides. Although the Veteran had already perfected an appeal to the Board with respect to this claim, albeit previously adjudicated under a different theory of entitlement, in an April 2009 rating decision, the RO denied the Veteran's claim to establish service connection for hypertension due to herbicide exposure. See Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). While the Board notes that the Veteran did not separately perfect an appeal to the Board concerning his claim for hypertension claimed as due to herbicides exposure, the Court has held that a claim brought under a new etiological theory does not constitute a new claim. Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). As such, the Veteran's September 2008 statement is not a separate claim for benefits, but rather, a statement in support of his initial hypertension claim which had already been perfected to the Board. Also, this claim stems from the February 2008 rating decision. The Veteran is not prejudiced by the Board's determination in this matter because it is advantageous to the Veteran. Specifically, if service connection for hypertension is eventually established, the effective date of the award of service connection could be assigned back to July 13, 2007 - the date that VA received the Veteran's initial claim to establish service connection for hypertension. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of (1) entitlement to service connection for hypertension, to include as due to exposure to herbicides and (2) entitlement to an evaluation in excess of 50 percent for service-connected PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDING OF FACT The most probative competent evidence demonstrates that it is at least as likely as not that the Veteran's cardiac disability, diagnosed as supraventricular arrhythmia, is the result of the Veteran's service, to include his presumed exposure to herbicides. CONCLUSION OF LAW The criteria for service connection for supraventricular arrhythmia have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). REASONS AND BASES FOR FINDING AND CONCLUSION Because the Veteran's claim to establish service connection for a cardiac disability, diagnosed as supraventricular arrhythmia, is being granted, there is no need to review whether VA's statutory duties to notify and assist, to include substantial compliance with the Board's prior remand instructions, are fully satisfied as any error would be non-prejudicial. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011); see also Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), D'Aries v. Peake, 22 Vet. App. 97 (2008). See also Bryant v. Shinseki, 23 Vet. App. 488 (2010). As will be discussed below, there is an indication of record that there is evidence in VA's possession which may be pertinent to the claim decided herein, and yet, it is not associated with the record before the Board. However, as stated above, since the Board is granting this claim in full, any deficiency in VA's duty to assist the Veteran is not prejudicial. Moreover, a remand to obtain this outstanding evidence would merely cause avoidable delay and would not result in any additional benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). In light of above, the Veteran is not prejudiced by the Board's adjudication of his claim at this time. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Service Connection and Herbicide Exposure Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the Court held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Court set forth a two-step analysis to evaluate the competency of lay evidence. First, Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury - to determine whether to grant service connection. The Board observes that this Federal Circuit decision is nonprecedential. However, see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"). The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of a decision of a superior tribunal, the Federal Circuit. 557 F.3d 1355 (Fed. Cir. 2009). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2012). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Amyloidosis, chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; all chronic B cell leukemia (including, but not limited to hairy cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis The Veteran asserts that he has a cardiac disability which is the result of his service, to include exposure to herbicides while serving in the Republic of Vietnam. Concerning element (1), evidence of a current disability, as noted in the Introduction, the record is replete with diagnoses of various heart disabilities, to include paroxysmal atrial fibrillation and atrial flutter, status post pacemaker placement and successful radiofrequency ablation of recurrent atrial flutter, and nonsustained ventricular tachycardia. See e.g., June 2007 VA physician's note, a December 2003 private emergency department report and an August 2007 record from Dr. McCue, and an April 2011 statement from Dr. Thometz. More specifically, after a review of the Veteran's claims file and an examination of the Veteran, the May 2013 VA examiner provided a diagnosis of supraventricular arrhythmia. Thus, element (1) is demonstrated. In this regard, it is significant to note that no congestive heart failure was noted on private chest x-ray examinations in 2004, or VA examination in May 2013. With respect to element (2), evidence of an in-service disease or injury, the Board notes that the Veteran's service treatment records are devoid of any instance of complaints of or treatment for an injury or disease of the heart during the Veteran's service. However, the Veteran has consistently contended that his cardiac disability is the result of in-service exposure to herbicides while serving in the Republic of Vietnam. See the September 2008 statement from the Veteran and the November 2012 hearing transcript at pages 6 and 7. As noted in the Introduction as well as the RO in the April 2009 rating decision, the Veteran's service records verify that the Veteran served in the Republic of Vietnam during the Vietnam era. Accordingly, exposure to herbicides is presumed, and element (2) is demonstrated. The Board observes that supraventricular arrhythmia is not among the list of diseases presumed by VA to be related to herbicide exposure. 38 C.F.R. § 3.309(e); see also Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Concerning element (3), evidence of a nexus between the diagnosed disorder and the in-service disease or injury, the only nexus opinion of record is favorable to the Veteran's claim. Initially, the Board observes that the examiner who conducted the September 2010 VA examination did not address the etiology of the Veteran's cardiac disability. However, after a review of the complete VA claims file and a physical examination of the Veteran, the May 2013 VA examiner opined that the Veteran's supraventricular arrhythmia is at least as likely as not caused by or a result of his exposure to herbicides while in stationed in the Republic of Vietnam. In providing this opinion, the examiner noted that the Veteran's service records confirmed service in the Republic of Vietnam and that exposure to herbicides, such as Agent Orange, has been linked to "cardiac conditions." See the May 2013 VA examination report. In the present case, the May 2013 VA examiner was fully aware of the Veteran's service and medical history, and the opinion is congruent with the medical and lay evidence of record. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 297, 284 (1997). In light of above, the Board finds that the favorable May 2013 opinion is adequate for the purpose of adjudicating the Veteran's claim, and there is no medical nexus evidence to the contrary. As such, element (3) is demonstrated, and the evidence reflects that the Veteran's cardiac disability, diagnosed as supraventricular arrhythmia, is due to his presumed in-service exposure to herbicides, and thus, service connection is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012) see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). ORDER Entitlement to service connection for chronic supraventricular arrhythmia, to include as due to exposure to herbicides, is granted subject to the laws and regulations governing payment of monetary benefits. REMAND After review of the record, the Board concludes that the Veteran's claims enumerated below must be remanded so that VA may fulfill its duty to assist the Veteran, to include substantial compliance with the Board's prior remand directives, and to ensure that the Veteran receives due process. By a November 2012 rating decision, the RO denied the Veteran's claim for an evaluation in excess of 50 percent for service-connected PTSD. The VA computer locator system (VACOLS) reflects that the RO received a notice of disagreement on January 11, 2013, with respect to this denial; however, this document is not associated with the paper claims file or electronic Virtual VA file, and thus, it is not available for review by the Board. It is assumed that this January 2013 statement is associated with a temporary file maintained at the RO. Nonetheless, the RO has accepted the Veteran's October 2012 statement as a notice of disagreement with the September 2012 rating decision, and yet, the Veteran was not provided a statement of the case with respect to this issue. The filing of a notice of disagreement places a claim in appellate status. The failure to issue a statement of the case in such circumstances renders the claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2012); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). The purpose of remanding such issue is to give the RO/AMC an opportunity to cure this defect. Thereafter, the claim should be returned to the Board only if the Veteran perfects an appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim). As noted immediately above, it appears that a temporary file has been created at the RO in an effort to expeditiously process additional claims filed by the Veteran since his claims file was initially certified to the Board in connection with his claims for service connection for cardiac disability and service connection for hypertension, in April 2009. The existence of the a temporary file at the RO means that the record before the Board at the present is incomplete, and thus, it is reasonable to deduce that there are documents in VA's possession which may be pertinent to the Veteran's hypertension claim. The duty to assist obligates VA to obtain these records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"); Dunn v. West, 11 Vet. App. 462 (1998). In May 2009, the Veteran submitted a VA Form 28-1900, Application for Vocational Rehabilitation. It is unclear whether the Veteran's claim for Vocational Rehabilitation was granted or whether a file was created as a result of his application. Nonetheless, the Board notes that records from Vocational Rehabilitation, if any, may be useful to the Board in adjudicating the Veteran's hypertension claim. On remand, the AMC should attempt to obtain these records, if extant, and associate them with the claims file. In the March 2013 remand, the Board, inter alia, directed that the Veteran should be provided a VA examination in connection with his hypertension claim, to include obtaining a nexus opinion addressing the etiology of this disease. The report of the May 2013 VA examination reflects that the examiner stated that, because it was "unclear" when and how the Veteran's hypertension was initially diagnosed, a nexus opinion addressing the etiology of this disease could not be offered without resort to mere speculation. See the May 2013 VA examination report. The Court has held that before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, unfortunately, the May 2013 examiner did not specifically state why a medical nexus opinion could not be rendered because of the uncertainty of the initial onset of the Veteran's hypertension. Accordingly, the Board's prior remand directives have not been substantially completed, and thus, a remand for clarification is necessary. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate any temporary file, maintained at the RO, with the Veteran's VA claims file. 2. Contact the appropriate repository and attempt to obtain all Vocational Rehabilitation records, if any, for the Veteran, pursuant to his May 2009 claim for Vocational Rehabilitation. Associate all received records, if any, with the claims file. 3. Issue a statement of the case pursuant to the notice of disagreement received in January 2013 as to the rating decision in November 2012 which denied the Veteran's claim for an evaluation in excess of 50 percent for service-connected PTSD. Only if the Veteran completes an appeal with respect to this issue by the timely filing of a substantive appeal should such be certified to the Board for appellate consideration. 4. Thereafter, the Veteran's claims file and Virtual VA file should be made accessible to the clinician who performed the May 2013 VA examination and offered the speculative medical opinion concerning the Veteran's hypertension. After a review of all of the evidence of record, which must be noted on the examination report, the clinician is requested to provide a basis and/or explanation as to why a medical nexus opinion could not be rendered because of the uncertainty of the initial onset of the Veteran's hypertension. The examiner must note that hypertension initially demonstrated AT ANY TIME after service may be service connected if shown to be etiologically related to service. In this regard, the examiner may also offer an addendum opinion, if deemed warranted, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is etiologically related to service, to include his presumed in-service exposure to herbicides. The VA examiner is reminded of the need to provide a complete and thorough rationale for all conclusions reached. Provided that this clinician is unavailable, or is no longer employed by VA, schedule the Veteran for an appropriate examination by an examiner who has not seen him previously, and that addresses the inquiry set forth above regarding the disability claimed. 5. Thereafter, subsequent to taking any other further development deemed necessary in light of the evidence of record, adjudicate the issue of entitlement to service connection for hypertension. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs