Citation Nr: 1327546	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  11-04 776	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an initial rating greater than 20 percent for adenocarcinoma of the prostate, status post radical retropubic prostatectomy, with residuals of urinary incontinence and erectile dysfunction. 

2.  Entitlement to service connection for depression secondary to adenocarcinoma of the prostate, status post radical retropubic prostatectomy, with residuals of urinary incontinence and erectile dysfunction.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Appellant represented by:	Calvin Hansen, Attorney


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from October 1966 to August 1969. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2010 and December 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

The October 2010 rating decision granted service connection for adenocarcinoma of the prostate, status post radical retropubic prostatectomy, with residuals of urinary incontinence and erectile dysfunction.  A temporary evaluation of 100 percent was granted effective July 19, 2010, with assignment of a 20 percent evaluation effective September 1, 2010.  The same rating decision, inter alia, deferred a decision on entitlement to compensation for depression secondary to the prostate disability; denied service connection for hypertension; and denied service connection for hearing loss disability of both the right and left ears. 

The Veteran perfected an appeal with respect to the initial 20 percent rating assigned for the prostate disability, as well as the denial of service connection for hypertension and bilateral hearing loss disability. With regard to the prostate disability, the Veteran has limited his appeal to the propriety of the 20 percent evaluation, and not the period for which he was granted the temporary 100 percent evaluation.

The December 2010 rating decision affirmed the 20 percent evaluation for the prostate disability.  The RO conducted a review of the file because of a typing error regarding the date of the Veteran's adenocarcinoma of the prostate in the October 2010 rating decision.  The December 2010 rating decision also denied service connection for depression secondary to the prostate disability.  The Veteran has perfected an appeal with respect to both of these issues: the initial evaluation assigned for the prostate disability and the denial of service connection for depression.

The Board has reviewed the Veteran's physical claims file and the electronic claims folder to ensure review of the totality of the evidence.

The issues of service connection for depression secondary to the Veteran's prostate disability, and service connection for bilateral hearing loss disability 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.


FINDINGS OF FACT

1.  The Veteran's service connected prostate disability does not result in renal dysfunction; does not require the changing of absorbent materials more than two times a day; does not result in a daytime voiding interval of less than one hour or awakening to void five or more times per night; does not result in obstructed voiding; and has not resulted in a urinary tract infection requiring drainage, frequent hospitalization, or continuous intensive management.

2.  The weight of the evidence does not support a finding that the Veteran's current hypertension had its onset during active duty, initially manifested within one year of his separation from active service, or is otherwise etiologically related to the Veteran's active military service.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 20 percent for the Veteran's service connected prostate disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.115a, Code 7528 (2012).

2.  The Veteran's hypertension was not incurred in or aggravated by military service and did not arise within one year of the Veteran's separation from active service.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). 

The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  Notice must be provided before the initial RO decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The present appeal involves claims for service connection and disagreement with the initial rating assigned for a service-connected disability.  With respect to the Veteran's service connection claims, the VA has satisfied its duty to notify the claimant with August 2010 and October 2010 notice letters sent to the Veteran.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

With respect to the claim for a higher evaluation for his prostate condition, once service connection is granted the claim is substantiated.  Additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  As a result, the Veteran's initial rating claim requires no further notice.

The Veteran's service treatment records and VA medical treatment records have been obtained.  The Veteran has identified and provided private treatment records that are now in the record.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  

This duty requires VA to assist in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  With respect to the prostate claim, a VA examination was conducted in August 2010.  The Veteran has not argued, and the record does not reflect, that this examination is inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examiner considered the Veteran's relevant medical history and did not provide an opinion as one was not requested.  This examination, along with the remainder of the evidence of record, contains sufficient findings to rate the Veteran's prostate condition under the appropriate diagnostic criteria.

VA has not provided the Veteran with an examination with respect to his service connection claim for hypertension.  VA examinations are necessary when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  Regarding the service connection claim for hypertension, the Veteran has provided nothing beyond the bare assertion that it is linked to service.  There is no further assertion or explanation as to how his current diagnosis of hypertension is related to service.  In addition, there is no record of hypertension or complaints of high blood pressure while in service.  As a result, the Board finds that VA was not required to provide the Veteran with an examination regarding his hypertension claim.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  


II.  Initial Rating for the Veteran's Prostate Disability

      A.  Disability Ratings in General

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The Schedule is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran.  38 C.F.R. § 4.1.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). 

	B.  Diagnostic Code 7528 

The Veteran's prostate disability is evaluated under Diagnostic Code (Code) 7528, Malignant neoplasms of the genitourinary system.  Code 7528 provides for a temporary rating of 100 percent following the cessation of surgical, X-ray, antineo-plastic chemotherapy or another therapeutic procedure.  This 100 percent rating is to continue until a mandatory VA examination six months after the procedure.  If there has been no local reoccurrence or metastasis, the residual disability is to be rated as a renal dysfunction or a voiding dysfunction, whichever is predominant.  

The renal dysfunction criteria include service connected hypertension for 60, 30, and 0 percent ratings.  As later discussed, the Veteran's hypertension is not service connected, so these ratings are unavailable.  Other symptoms outlined in the renal dysfunction ratings include: regular dialysis; markedly decreased function of kidney or other organ systems, especially cardiovascular; BUN levels of greater than 40mg%; creatine levels greater than 4mg%; persistent edema and albuminuria; generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion; definite decrease in kidney function; or constant or recurring albumin with hyaline and granular casts or red blood cells.  The evidence of record does not demonstrate that the Veteran has had any of these symptoms.  Likewise, there is no evidence that the Veteran's prostate cancer or residuals thereof result in renal disability.  Accordingly, the Board concludes that voiding dysfunction is the Veteran's predominant manifestation of his disability, and the renal dysfunction criteria are, therefore, the Board need not apply the renal dysfunction criteria.

The voiding dysfunction criteria allow for rating a condition as urine leakage, urinary frequency, obstructed voiding, and urinary tract infection.  The evidence of record demonstrates that the Veteran has not experience symptoms relating to the obstructed voiding or urinary tract infection criteria.  As a result, the Board will not further discuss the rating criteria pertaining to obstructed voiding, or urinary tract infection.

Urine leakage allows for a 60, 40, and 20 percent evaluation.  A 60 percent evaluation is appropriate when the disability requires the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day.  A 40 percent evaluation is appropriate when the disability requires the wearing of absorbent materials which must be changed two to four times per day.  A 20 percent evaluation is appropriate when the disability requires the wearing of absorbent materials which must be changed less than two times per day.

Urinary frequency allows for a 40, 20, and 10 percent evaluation.  A 40 percent evaluation is appropriate when the daytime voiding interval is less than one hour, or awakening 5 or more times per night to void is required.  A 20 percent evaluation is appropriate when the daytime voiding interval is between one and two hours, or awakening three to four times per night is required.  A 10 percent evaluation is appropriate when the daytime voiding interval is between two and three hours, or awakening two times per night to void is required.

	C.  Analysis

The evidence of record supports a continued rating of 20 percent, but no greater, for the Veteran's prostate disability from September 1, 2010.  A rating under urine leakage provides the highest evaluation for the Veteran.  The Veteran has not submitted any lay evidence pertaining to the severity of his present prostate disability.  In making his claim for an increased rating, the Veteran has simply requested a higher rating without statements supporting such a rating or an explanation of why the current rating does not reflect his current level of disability.  The evidence of record pertaining to his prostate disability consists of the private medical records submitted by the Veteran, the August 2010 VA examination, and the November 2010 VA examination.  

The private medical records submitted by the Veteran are from his treatment at the Methodist Pathology Center.  These records regard the Veteran's prostatectomy. They include a description of the surgical procedure, a pre-surgery CT scan, a radiology report, notes from a pre-surgery examination, and a post-surgery radiology report.  The post-surgery radiology report notes no leakage from the urinary bladder.  It also notes that a Foley catheter was in place at the time of the exam, but the record indicates that the Veteran no longer uses a catheter. Evidence from the private treatment records is less probative than the more current findings as they are not as recent and deal primarily with the Veteran's status pre-surgery, the actual surgery, and immediately after the surgery. These records are dated during the period that the Veteran was in receipt of his temporary total evaluation. 

The August 2010 VA examination notes that the Veteran has dribbling and must wear absorbent material that must be changed less than two times per day. The Veteran is noted to have a daytime voiding interval of greater than three hours and one voiding per night. The examination notes that there is no history of obstructed voiding. 

While the November 2010 VA examination focuses mainly on the Veteran's service connection claim for depression secondary to the prostate disability, the examination reports that the Veteran " wear[s] underwear with a 'built-in' pad for the mild urinary loss with exertion, but overall, uses this daily and it does not interfere with what he does on a routine basis." 

As previously noted, the present level of disability is of primary concern when considering a rating evaluation.  The totality of the evidence supports a continued 20 percent rating from September 1, 2010.  The August 2010 VA examination notes the Veteran's use of an absorbent material that must be changed less than two times per day.  This falls under the criteria of 20 percent for urine leakage.  A rating in excess of 20 percent is not warranted as the record does not reflect that the Veteran requires two or more changes of absorbent materials a day, has a daytime voiding interval of less than two hours, or must awaken three or more times a night.  

A staged rating is not appropriate from September 1, 2010, as the record does not reflect that the criteria for a rating in excess of 20 percent were met at any time following the expiration of the Veteran's temporary total evaluation.

When evaluating any increased ratings claim, the Board determines whether an extraschedular rating is appropriate.  In evaluating whether one is appropriate, the Board must consider a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008).  The first step is whether the rating adequately contemplates the Veteran's disability picture.  Id. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is therefore adequate.  If the schedular evaluation does not contemplate the Veteran's level of disability, then the second inquiry is whether there is an exceptional gap between the Veteran's disability picture and the criteria.  If the Veteran's disability picture meets this second inquiry, then the third step is to refer the case to the Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.

Here, the evidence shows that the symptoms of the Veteran's prostate disability are fully considered by the applicable rating criteria.  The rating criteria account for urine leakage, urinary frequency, and nighttime voiding.  These are the symptoms that the record has indicated are a result of the Veteran's prostate disability.  As a result, further consideration of the three step Thun analysis is unnecessary.  38 C.F.R. § 3.321(b)(1).


III. Service Connection for Hypertension

	A. Service Connection Requirements 

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).

Finally, a disability which is proximately due to or the result of a service connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997).  See also Bostain v. West, 11 Vet. App. 124, 127 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.



	B. Analysis

The Veteran contends that his current hypertension is related to his active duty service.  VA examinations and private medical records show that he has been diagnosed with hypertension.  As a result, the evidence establishes that the Veteran has a current diagnosis of hypertension, thus fulfilling the first requirement establishing service connection.

However, with regard to element (2), in-service incurrence or aggravation, there is no evidence in the record of in-service complaints, treatment, or diagnosis.  Without such, there can be no required direct "nexus" between the present disability and an in-service incurrence or aggravation of a disease or injury, thus element (3) is also not met.  The Veteran has provided nothing beyond the bare allegation that his current diagnosis of hypertension is related to his service.  The service treatment records are negative for any diagnosis of hypertension or any symptoms consistent with hypertension.  As a result, the record contains no explanation, through either medical evidence or lay evidence as to how the current diagnosis of hypertension is directly connected to his service or that his postservice diagnosis of hypertension is due to his military service.  Accordingly, service connection on a direct basis is not warranted.  

Furthermore, the Veteran has not asserted, nor does the evidence suggest, that the Veteran's hypertension is etiologically related to, or aggravated by, a service connected disability.  Accordingly, a grant of service connection on a secondary basis is not warranted.  , and there is no evidence of a disability for which secondary service connection for hypertension would be available.

With respect to possible presumptive service connection, hypertension is a chronic disease as listed by VA regulation.  See 38 C.F.R. § 3.309(a).  However, there is no evidence of hypertension in-service treatment records or evidence of hypertension within the first year after service, or the decades prior to this claim.  There was also no continuity of symptomatology.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In fact, the Veteran's blood pressure improved from his entrance examination (136/86) to his separation exam (130/78).  The Board finds that the Veteran's hypertension did not manifest to a degree of 10 percent within the applicable presumptive period of one year.  A 10 percent evaluation for hypertension under Code 7101 is available when the Veteran has: diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  Service treatment records indicate a systolic/diastolic blood pressure of 136/86 upon enlistment, and a blood pressure of 130/78 upon separation.  The record does not contain medical records for the next few decades.  Consequently, the evidence of record does not support a finding that presumptive service connection is available.

Accordingly, based on the evidence and analysis above, the Board finds weight of the evidence is against the Veteran's for service connection for hypertension.  Accordingly, the claim must therefore be denied.  Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54.


ORDER

Entitlement to an initial evaluation in excess of 20 percent for the Veteran's prostate disability is denied.

Entitlement to service connection for hypertension is denied.


REMAND

After having carefully considered the matter, the Board believes the remaining issues currently on appeal must be remanded for further procedural development.  The reasons for remanding are outlined below.


I.  Entitlement to service connection for depression secondary to the Veteran's prostate disability

In the December 2010 rating decision, the RO denied service connection for depression secondary to the Veteran's prostate disability because "the medical evidence of record fails to shows that this disability has been clinically diagnosed."  However, there is conflicting evidence as to whether the Veteran currently has a diagnosed depressive disorder.  

In the August 2010 VA examination report the examining physician diagnosed the Veteran with depression.  However, in the November 2010 VA examination report, the examining psychologist found no symptoms of depression.  The VA psychologist was instructed to discuss the August 2010 findings, however the examiner did not directly address the findings of the August 2010 examination regarding depression.  Before the Board can make a final finding on this issue, the RO must request a clarifying opinion from the November 2010 examiner.  The examiner should directly address the August 2010 examination and diagnosis of depression and reconcile his opinion with the August 2010 examination report.  

In light of the apparent discrepancies in the evidence noted above, the Board is of the opinion that clarification is needed to determine whether the Veteran is currently suffering from depression or has had such disability at anytime during the course of the appeal.  McClain v. Nicholson, 21 Vet. App. 319 (holding that the Board wrongly denied a claim because the veteran "no longer manifest[ed]" a disability at the time that the Board made its decision). 

II. Entitlement to service connection for bilateral hearing loss

In January 2012, the Veteran submitted new evidence in support of his bilateral hearing loss service connection claim.  This evidence was received subsequent to the January 2011 Statement of the Case.  At the time of submission, the Veteran did not indicate whether he wished to waive his right to have the agency of original jurisdiction (AOJ) initially consider the additional medical evidence.  See 38 C.F.R. § 20.1304(c) (2009).  Because the Board must remand the issue of bilateral hearing loss for additional reasons, it is impractical to request a waiver from the Veteran at this time. 

In addition, the September 2010 VA audiology examination states that private medical records were not reviewed.  The examiner notes that the C-file and VA medical records were reviewed, but that private medical records were not reviewed. 

As a result of the newly submitted private medical records, and the failure of the September 2010 VA examiner to review previous private medical records, including the August 2010 private medical records pertaining to hearing loss, the RO should schedule a new audiology examination and opinion for the Veteran.

This new examination and opinion should consider all of the Veteran's private medical records, submitted both before and after the January 2011 SOC. 

In addition, the RO should perform further development regarding possible secondary service connection for the Veteran's hearing loss to see if it is related to or aggravated by the Veteran's service connected tinnitus.  The new examination and opinion should address whether the Veteran's current hearing loss could be secondary to the Veteran's service connected tinnitus.

In addition, it appears that the Veteran may be receiving ongoing VA treatment.  The records on file are only through December 2010.  The RO should obtain updated VA treatment records if they exist.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any updated VA treatment records from the Nebraska-Western Iowa Health Care System dated from December 2010. 

2.  Contact the examiner from the November 2010 VA examination and request a clarifying opinion as to whether the Veteran currently suffers from depression or has had depression at any time since July 2010.  The examiner should directly address the diagnosis of depression from the August 2010 examination.  It is important that the August 2010 diagnosis is directly addressed in this clarifying opinion, and that the examiner answers whether the August 2010 diagnosis represents a chronic condition.  In addition, the examiner must resolve the conflict between the August 2010 and November 2010 exams. 

3.  Schedule a new examination and accompanying opinion for the Veteran regarding his bilateral hearing loss disability.  The examiner must consider all private medical records currently on file.  In addition, perform further development regarding the potential for secondary service connection for the Veteran's bilateral hearing loss to see if it is (1) related to or (2) aggravated by the Veteran's service connected tinnitus.  The new examination and opinion should address whether the service connected tinnitus has contributed to the Veteran's hearing loss and explain why the service connected incidents could cause tinnitus and not hearing loss.

4.  After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand.  If the report is deficient in any manner, it should be returned to the reviewing personnel.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal.  If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded and opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs