Citation Nr: 1327341 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-08 310 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. 2. Entitlement to service connection for a sleep disorder, to include as secondary to sinusitis and a psychiatric disorder. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. These matters initially came before the Board of Veterans' Appeals (Board) from multiple rating decisions of the RO. In August 2009, the RO, in pertinent part, denied service connection for a sleep disorder and depression. In December 2011, the RO, in pertinent part, denied service connection for bipolar disorder, also continuing the denial for service connection for depression. The Board combined these issues to a single claim and characterized the issue more broadly as noted on the title page. The RO also denied the Veteran's claim for a TDIU. In December 2012, the Board, in pertinent part, remanded the claims on appeal for further development. The development requested for the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD has been completed and that issue has been returned to the Board for adjudication as discussed herein below. The issue of entitlement to service connection for PTSD was previously addressed and is not before the Board. Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal herein decided. The issue of whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a sleep disorder, to include as secondary to sinusitis 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 A psychiatric disorder was not manifest during service and is not attributable to service. CONCLUSION OF LAW A psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in October 2008, January 2009 and March 2009 letters issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection herein decided, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, private treatment records and VA treatment records and examination report. Further, the Board is aware that this appeal was, most recently, remanded by the Board in December 2012. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The remand requested that the RO obtain an addendum opinion regarding the nature and etiology of his claimed psychiatric disorder. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order). The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996), McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (clarifying that the requirement the Veteran have the claimed disability in a service-connection claim is satisfied when he has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis Initially, the Board notes that the record establishes that the appellant served during a period of war. However, there is no proof of combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable. The Veteran essentially asserts that his psychiatric disorder had an onset in service. In the January 1969 Report of Medical History associated with his entrance examination, the Veteran answered "yes" to having nervous trouble of any sort. In pertinent part, the physician summarized, "nervous at times - once had nerve tablets, and he took for a few day." The corresponding January 1969 entrance examination reflects that clinical psychiatric evaluation was normal. Thus, the appellant did report a positive psychological history at entrance. However, the psychiatric evaluation was normal. Therefore, the presumption of soundness at entry is potentially applicable. We also find that a chronic acquired psychiatric disorder did not pre-exist service, since there is no reliable/credible evidence that there was an identified acquired pre-existing pathology. Furthermore, since there were no in-service manifestations, the Court has established that the presumption of soundness is not sword for the Veteran to fulfill the second element of service connection without any evidence of the manifestation of an in-service disability. Otherwise stated, before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). A March 1996 counseling psychology screening report documents that the Veteran had been able to work sparingly for the last 2 years due to a severe hip condition. The screening report reflected that the Veteran was unemployed and homeless. It was documented that the Veteran was motivated to seek and gain employment. The listed positive factor was lack of a substance abuse problem. The negative factor was the Veteran's hip problems. An April 1996 VA record reflects that the Veteran had been admitted to the program since March 1996. The examiner's initial impressions of the Veteran were "good." The Veteran's treatment plan consisted of the following problems: homeless, unemployed, low income and depression/R/O (rule out) PTSD. The treatment goals were: to gain permanent housing, to gain employment, to establish sufficient income and to maintain mental stability. Various treatment records beginning in March 1998 document treatment for substance abuse addictions. The March 1998 substance abuse record reflects the Veteran's denial of drug or alcohol use in almost a year. He denied depressive symptoms and there was no evidence of psychosis. A December 1998 VA examination report reflects an Axis I diagnosis of PTSD. There were no other psychiatric diagnoses. An October 2001 VA treatment record indicates that the Veteran had a positive depression screen. The Veteran was to receive psychiatric treatment. In a follow-up October 2001 VA treatment record, the Veteran, in pertinent part, denied past psychiatric/mental illness or treatment. He had no reported current homicidal or suicidal ideations. He agreed to notify staff should that occur. Reported legal problems included mandatory treatment because of fines as a result of criminal attempt to purchase drugs. On objective evaluation, the assessment was ETOH dependence and ETOH withdrawals. A corresponding October 2001 substance abuse evaluation treatment record reflects that the Veteran had a history of polysubstance abuse. Reportedly, he had smoked crack/cocaine a rock a week for the past couple of years. He reported that he last smoked crack two night earlier. He was noted to be very evasive about his substance use. He reported that he drank whiskey every day. He reported that he first used alcohol at the age of 16 and recognized alcohol as a problem in his 20's. He first used drugs in his 20's and denied that drugs were a problem. The examiner indicated that past medical records stated that the Veteran had a history of opiate dependence but noted the Veteran denied that he had a problem with this. The assessment was ETOH dependence and ETOH withdrawals. Various subsequent records document treatment for addictions. A December 2002 VA psychiatric evaluation treatment record reflects that the Veteran has a history of cocaine and alcohol dependence. The Veteran reported that he had not used drugs in approximately 2 weeks and explained his test results were coming back positive because of poor liver functioning. Reportedly, he decided to come for evaluation because he had a class on depression and had endorsed depressive symptoms. He complained of trouble making decisions and poor motivation. He was irritable and did not like being around people. He denied suicidal or homicidal ideation. He did not exhibit any psychotic symptoms. Reportedly, he had a recent conviction related to his being involved in an altercation in which he stabbed a man. Since his conviction, he was paranoid and on guard about everything. He reported that he had made steps toward sobriety by disassociating himself from former friends. He did not bring up any past trauma, other than the altercation, which he described as being attacked by two men and stabbing one in self-defense. He did not complain of re-experiencing phenomena. He was unconcerned about his positive drug screen stating that he was not worried about that and that he had more important thing to focus on in getting his life back together. On mental status examination, the relevant Axis I diagnoses were depression, NOS (not otherwise specified), cocaine dependence and alcohol dependence. The Veteran was educated on the need for abstinence from all substances of abuse in order to adequately evaluate and treat any psychiatric problem. A July 2008 VA Mental Health Clinic Consult Note documented that the Veteran had a past history significant for addiction. The Veteran's chief complaint was of insomnia and refusal of any addiction treatment. The Veteran reported that he recently used alcohol, "yesterday," and cocaine, "about a month ago." However, urine testing in July showed he tested positive for cocaine use. Reportedly, he was drinking several caffeinated drinks per day. The Veteran was educated on REM suppression with alcohol and other substances and how that affects sleep for weeks, months, even years after stopping. The Veteran was encouraged to engage in addiction treatment and was provided psychoeducation about the substances he was ingesting as well as sleep hygiene. The Veteran expressed disinterest in addiction treatment as he had "been through it before." However, the examiner noted that there were elements that he was clearly lacking and the Veteran did not appear to believe in continuous recovery. On mental status examination, the relevant Axis I diagnoses were alcohol dependence, continuous; cocaine dependence, continuous; rule out substance induced insomnia and history of adjustment disorder; Axis II diagnosis was history of cluster B traits. The examiner explained that the insomnia was likely due to active substance use and the focus of the session was on confronting denial and encouraging engagement in addiction treatment, which the Veteran declined. The report of August 2009 VA examination reflects the Veteran's report that he was generally functioning fairly well. He did complain of problems with sleeping. He also reported having nightmares, about twice per month, that involved "snakes, running and jumping." Reportedly, women who had slept with him told him that he thrashed in his sleep. Otherwise, he denied any significant symptomatology. He reported that his appetite was generally good and stated that he ate three meals per day. He did not have any difficulty falling asleep but he did awaken during the night and averaged approximately six hours of sleep. He denied depression or anhedonia and denied any change in libido. He also denied suicidal or homicidal ideation. He reported that he lived alone and was never married. He last worked about 5-6 years ago. Prior to that, he worked for approximately four years for the postal service and reportedly was terminated due to attendance. He stated that he was not currently working because "I'm a disabled vet." He reported that he goes to the gym and regularly attended programs at the VA. He watched television and visits primarily with family members. He reported that his last drug and alcohol use was "in November 2009." His drug of choice was crack cocaine. On mental status examination, the relevant Axis I diagnoses were alcohol dependence in apparent remission and cocaine dependence in apparent remission. The examiner commented that based on the information the Veteran provided in today's examination, he did not meet criteria for diagnosis of either an anxiety or depressive disorder. The examiner explained that since there was essentially no symptomatology that the Veteran reported other than some interrupted sleep, frequency, severity and duration of symptoms was not meaningful. The examiner did not find evidence that any psychiatric disorder precluded employment. The examiner found that the Veteran did not report any significant impairment in social functioning and no impairment in thought processing or communication was noted. The examiner did not find evidence that any psychiatric disorder precluded activities of daily living. "The Veteran current alcohol or drug use." The examiner concluded, "I did not find evidence of another psychiatric disorder in today's examination." A November 2009 mental health medication note reflects the examiner's assessment that the Veteran's sleep, appetite and mood were all fine and that the Veteran did not feel as though he needed medication. The Veteran denied having bad dreams and had not been on medication since June 2009 (according to medication list and refills). The Veteran denied use of substances since November 24, 2008. He continued to live in the same place. Relevant Axis I diagnoses were mood disorder NOS, alcohol dependence in remission since November 24, 2008, and cocaine abuse in early remission since November 24, 2008. Past diagnoses of psychological stress, depressive disorder NOS and psychosocial circumstances was noted. Additionally, there was an indication to monitor for bipolar disorder or cyclothymia. Axis II diagnosis was deferred but a past history of cluster B traits was noted. In the report of April 2013 VA examination, the psychiatrist documented that the Veteran's claims file had been reviewed. The psychiatrist indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. In this regard, the psychiatrist explained that the Veteran had been diagnosed with numerous psychiatric disorders since 2008, including adjustment disorder unspecified, cocaine abuse in remission, alcohol abuse in remission, cluster B personality traits, unspecified episodic mood disorder and personal history TBI. However, the psychiatrist noted that each of the diagnoses had been provided surrounding episodes of significant substance abuse and many had been associated with anger episodes congruent with the cluster B personality traits. The psychiatrist found that the etiology of each of the diagnoses more likely than not related to chronic substance abuse and personality traits associated with cluster B personality disorder which manifests in a tendency to react in certain volatile ways during stress or confrontation. She noted that numerous episodes in the Veteran's record demonstrated this pattern including, but not limited to, frequent request to change providers when desires are perceived as not being fulfilled. The psychiatrist also found that the Veteran's substance abuse was documented to have begun in adolescence and was not related to military service. Thus, the psychiatrist opined that the Veteran's psychiatric diagnoses were less likely as not related to military service. In this case, the evidence does not link the onset of any current psychiatric disorder to the period of active service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Clinical psychiatric evaluation was normal at separation in February 1971. Here, we are not presented with silence alone. There is no credible evidence that suggests that there exists a relationship, or nexus, between any current psychiatric disorder and the Veteran's active service. In the April 2013 report of VA examination, the psychiatrist explicitly found that the etiology of the psychiatric diagnoses more likely than not related to chronic substance abuse and personality traits associated with cluster B personality disorder. The psychiatrist also found that the Veteran's substance abuse was not related to military service and thus opined that the Veteran's psychiatric diagnoses were less likely as not related to military service. Thus, the Board finds that in reading the opinion in whole, in the context of the evidence of record, the psychiatrist simply states that current psychiatric disorder is related to alcohol and drug abuse rather than service. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). The Board notes that the law provides that no compensation shall be paid if a disability is the result of a Veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301; see also VAOPGPREC 2-97 (January 16, 1997). The Veteran has not identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the medical records, and taking account of the Veteran's lay statements. The only evidence of record supporting the Veteran's claim is his various general lay assertions. The Veteran is competent to assert his psychiatric symptoms had an onset during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, to the extent he attempts to establish a lay nexus of ongoing symptoms since service (38 C.F.R. § 3.303(a)), we find such assertion to be not credible. The February 1971 examination disclosed that clinical psychological evaluation was normal. This finding is inconsistent with continuing symptoms. In the report of May 1971 VA examination, the examiner noted that there was no evidence of any emotional disturbance. Again, this determination is inconsistent with a report of on-going symptoms. Following service, there was no indication of symptoms referable to a psychiatric disorder until April 1996. Thus, his reports of on-going symptoms are inconsistent with the contemporaneous records and are not credible. We conclude that the contemporaneous medical opinions are far more reliable than an after-the-fact recounting in support of a claim for benefits. Regardless, in this case, the Board finds the opinion of the VA psychiatrist in the April 2013 report of VA examination to be more probative. The VA psychiatrist is a medical professional who has reviewed the claims file and considered the reported history. The psychiatrist used her expertise in reviewing the facts of this case and determined that the current psychiatric disorder was unrelated to the Veteran's service. It is clear that the psychiatrist fully understood the basis for the Veteran's claims yet still determined, after reviewing the facts of the case, that the current psychiatric disorder was related to causes other than the Veteran's service. The Veteran has not suggested that this examination was performed in an insufficient manner. Lastly, the Veteran's psychiatric disorder is not an enumerated chronic disease within the meaning of 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309. Therefore, the provisions of 38 C.F.R. § 3.303(b) are not applicable. For the foregoing reasons, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD is denied. REMAND With regard to the Veteran's claim for service connection for sleep apnea, to include as secondary to sinusitis (in pertinent part), he was afforded a VA examination in April 2013. The examiner explained that sleep apnea is an obstructive condition and found that it was not related to, in pertinent part, sinusitis. The examiner also stated that there was no evidence of sleep apnea in service. The Board finds this examination inadequate. To the extent that the examiner finds that sleep apnea is not directly related to service, her supporting rationale ("no evidence of sleep apnea in service") is deficient. The Board reiterates service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To the extent that the examiner found that sleep apnea "is not related to sinusitis," the Board notes that in a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, __ Vet. App. __, No. 10-3031, 2013 WL 151154, *4-5 (Jan. 15, 2013). In this case, the examiner did not expressly state whether the sleep apnea was aggravated by the sinusitis. Where an examiner finds that a service-connected disability did not cause a claimed disorder and that the claimed disorder was more likely related to other factors, it isn't clear that aggravation has been addressed. El-Amin, 2013 WL 151154, *4-5. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Given the inadequacy of the VA examination as noted above, remand is warranted to obtain a more thorough opinion. The claim of entitlement to a TDIU is inextricably intertwined with the claim for entitlement to service connection for sleep apnea. Two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Here, adjudication (and ultimate decision) of the issue of entitlement to service connection for sleep apnea could impact adjudication (and ultimate decision) of the issue of entitlement to a TDIU. Accordingly, action on the claim for entitlement to a TDIU must be delayed. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the sleep apnea from the VA examiner who conducted the April 2013 examination. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. If the examiner determines an examination is required, such an examination shall be provided. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that sleep apnea onset due to disease or injury sustained in service. The examiner must also provide an opinion, in light of prior examination findings and the service and post-service evidence of record whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was aggravated by his service-connected sinusitis. If the examiner finds that the sleep apnea was aggravated by the sinusitis, or any residuals or complications thereof, the examiner must provided an opinion regarding the baseline level of severity of the sleep apnea prior to onset of aggravation. 2. After completing all indicated development, the claims remaining on appeal should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs