Citation Nr: 1327648 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 05-33 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a chronic orthopedic disorder of the lumbar spine, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a chronic orthopedic disorder of the left knee, to include as secondary to a service-connected right knee disability. ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to March 1973, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) thereafter in the Army National Guard until his retirement in April 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an January 2004 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran service connection and a noncompensable evaluation for residuals of a right knee collateral ligament tear, effective May 7, 2002 (the date VA received his original claim for VA compensation) and denied his claims of entitlement to service connection for chronic orthopedic disabilities of his left knee and his lumbar spine. The Veteran now contends that his left knee and lumbar spine disabilities are secondary to his service-connected right knee disability. In February 2008, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, D.C., for additional evidentiary and procedural development. The case was most recently before the Board in July 2012, when an increased rating claim for his postoperative residuals of a lateral collateral ligament tear of the right knee with degenerative joint disease and a service connection claim for a chronic cervical spine disorder were denied. His claims for service connection for the lumbar spine and left knee were remanded for further development. A July 2013 supplemental statement of the case was issued and the case is once again before the Board. The issue of entitlement to service connection for a chronic orthopedic disorder of the lumbar spine, to include as secondary to a service-connected right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's left knee disorder was not shown during active duty, was not diagnosed until many years post-service, and the competent and credible evidence fails to establish an etiological relationship between the Veteran's left knee disorder and his active service or to his service-connected right knee disability. CONCLUSION OF LAW A left knee disorder was not incurred in or aggravated by service, may not be presumed related to service, nor is it proximately due to or the result of his service-connected right knee disability. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, the Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. In December 2002 the Veteran was notified via letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. In March 2006 the Veteran was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after the Veteran was provided the March 2006 notice, the matter was readjudicated in a December 2009 supplemental statement of the case. Therefore, adequate notice was provided to the Veteran prior to the transfer and recertification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's available service treatment records and VA outpatient treatment records. Additionally, the Veteran's has submitted private treatment records. The Board notes an October 2007 Formal Finding regarding the Unavailability of Service Treatment Records. It noted that additional National Guard service treatment records for the period of November 1972 to March 2007 were unavailable for review. The letter reflects that further attempts to obtain these records would be futile and that, based on these facts, the record is not available. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Next, VA opinions with respect to the issue on appeal were obtained in January 2004 and August 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board remanded the claim in July 2012 as the January 2004 VA examination failed to provide rationale for the negative etiological opinion. Additionally a secondary aggravation opinion was not issued. The Board finds that the VA opinion obtained in August 2012 adequately addresses all secondary service connection issues and is adequate, as it is predicated on a full reading of the Veteran's claims file. It considers all of the pertinent evidence of record, the statements of the Appellant, and provides a sufficient rationale for the opinions stated, relying on and citing to the records reviewed. The Board notes that the Veteran has not been provided a VA medical opinion regarding any etiological relationship between his left knee disorder directly to service. However, service treatment records are silent as to any complaints or treatments for left knee problems for many years following separation from service. Other than his own unsupported assertions, the evidence does not indicate that his left knee disorder is related to service, or was aggravated by service. Therefore, the evidence does not require an additional medical opinion, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the reasons that are discussed in more detail below in the analysis section denying direct service connection for this claim, there is no competent and credible lay and medical evidence indicating that the Veteran has a left knee disorder related to service, or that was aggravated by service. As such a Remand to obtain an additional VA medical opinion is not warranted under the circumstances of this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Finally, as noted above, this appeal was remanded by the Board in July 2012 for further development. Specifically, the Board instructed the RO to afford the Veteran the opportunity to submit any evidence he deemed relevant and supportive of his claim and to provide the Veteran with a VA examination and opinion. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Additional VA treatment records and an August 2012 VA opinion were obtained. Accordingly, the Board finds that the July 2012 Remand directives were substantially complied with, with respect to this issue. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as arthritis (to include degenerative joint disease), manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is seeking entitlement to service connection for a left knee disorder. He specifically asserts that this disorder is secondary to his service-connected right knee disability. As an initial matter, the Board determines that the Veteran's left knee disorder is not related to his service-connected right knee disability. The Board has initially considered a January 2004 VA opinion where a VA examiner determined that the Veteran's right knee disability is not at least as likely as not causing the Veteran's left knee condition. Significantly no rationale for this negative opinion was provided. Moreover, the VA examiner did not address secondary aggravation. As part of the July 2012 Remand, the Veteran was afforded a new opinion in August 2012. The VA examiner opined that it was less likely than not that the Veteran's left knee disorder is proximately due to of the result of his service-connected disability. He noted a complete review of the Veteran's records reflect that he had bilateral knee pain and arthritis during the 1990's. The Veteran indicated to the VA examiner that essentially both of his knees had similar symptoms through the 1990's and 2000's, with one side at times being worse than the other but not consistently so. After considering the Veteran's history, the VA examiner stated that the Veteran's left knee condition of severe degenerative joint disease, now status post total arthroplasty is less likely as not either caused by or permanently aggravated by his service-connected right knee disability. He noted that at most, the right knee condition may have caused him temporary symptoms in the left knee due to temporary alteration of gait and asymmetric forces in 1992. However, based on the Veteran's description and the medical records, he noted that there was no persistent gait disturbance and the progression of his bilateral knee degenerative joint disease and severity of symptoms over the 20 years since then was essentially the same between the right and left knees. The VA examiner further stated that the Veteran was found to have severe degenerative joint disease of the bilateral knees with essentially symmetrical imaging findings and symptoms in 2007. He noted that a significant risk factor of morbid obesity has been present for many years and in a man in his 50's with this condition who has led a very active life as this Veteran has, the finding is not unusual. The VA examiner stated that aggravation of the left knee disorder by the service-connected right knee disability would lead to a difference between the two knees back in the early to mid-1990's at the time of the right knee injury and surgery during service, after this in the mid to later 1990's, or in the following decade of the 2000's depending on the nature of what may be causing the aggravation. The VA examiner stated that none of these are shown by the medical records or the Veteran's own history as given to him at the VA examination. The Board finds that the examination is adequate for evaluation purposes. Specifically, the examiner reviewed the claims file. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In support of his claim, the Veteran submitted a March 2002 letter, written by his private treating physician, which notes that the Veteran has had a lot of knee pain in both knees secondary to an injury when he was running while stationed in the National Guard. Rationale was not provided. When the record contains differing opinions as to whether the Veteran's left knee disorder is related to his service-connected right knee disability, the Board must assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). The Board may favor the opinion of one competent medical authority over another, but may not reject medical opinions based on its own medical judgment. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). In this case, the Board finds that the statements provided by the private treating physician are outweighed by the conclusions of the August 2012 VA examiner. Significantly, the private treating physician did not provide an opinion that is sufficient to establish service connection. Specifically, rationale for his opinion was not provided. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). As such, little probative value is given to the March 2002 private opinion. The Board determines that the private treating physician's conclusions are outweighed by the observations of the August 2012 VA examiner who considered all of the pertinent evidence of record, the statements of the Appellant, and provided a sufficient rationale for the opinions stated, relying on and citing to the records reviewed . The Board has also considered the statements made by the Veteran relating his left knee disorder to his service-connected right knee disability. In doing so, it must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ('although interest may affect the credibility of testimony, it does not affect competency to testify'). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his degenerative joint disease of the left knee. Jandreau, 492 F.3d at 1377, n.4 ('Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.'). It is true that he is competent to identify symptoms such as pain in his left knee. However, because degenerative joint disease of the left knee is not the type of disorder that is diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. The unsubstantiated statements regarding the claimed etiology of the Veteran's left knee disorder are found to lack competency and therefore credibility and probative value. Therefore, after weighing the pertinent evidence of record, the Board concludes that the preponderance of the evidence is against the entitlement to service connection for a left knee disorder as due to his service-connected right knee disability. Next, although it is the Veteran's primary argument that his left knee disorder is due to his service-connected right knee disability, the Board also considers the theory of entitlement to service for a left knee disorder on a direct basis. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). As an initial matter, the service treatment records reflect no complaints of, treatment for, or a diagnosis related to a left knee disorder or any symptoms reasonably attributed thereto. Next, post-service evidence does not reflect a left knee disorder for many years after active duty service discharge. Additionally, the Veteran was diagnosed with degenerative problems of the left knee prior to some of his periods of confirmed ACDUTRA service. Nevertheless, treatment records do not reflect treatment for his knee during his ACDUTRA service. Moreover, as the objective medical evidence does not indicate the presence of degenerative joint disease within one year of active duty, service connection on a presumptive basis is not for application. 38 C.F.R. §§ 3.307, 3.309. The Board notes that the presumptions of service connection found under 38 C.F.R. §§ 3.307 and 3.309, to include those related to the presumption of soundness and aggravation, do not apply to periods of ACDUTRA and INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Although the Veteran has primarily asserted that his left knee disorder is due to his service-connected right knee disability, he has implied that this disorder may be related to service. As noted above, the Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose a disorder such as degenerative joint disease of the left knee, as it is not a disorder that may be diagnosed by its unique and readily identifiable features, and thus requires a determination that is 'medical in nature.' See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran's reported history of continued symptomatology since active service is not found to be credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Notably, records do not reflect a diagnosis of degenerative joint disease of the left knee for many years following separation from active duty service. The value of the Veteran's assertions are additionally diminished, given that one of the early treatment records for his left knee noted a self-reported history of experiencing knee pain for only 4-5 years. See September 1995 private treatment record. Continuity has not here been established, either through the competent evidence or through the Veteran's statements. Having determined that the Veteran's alleged clinical history regarding onset and continuity of his left knee disorder is not credible, the Board next considers that service connection may be granted when the evidence establishes a medical nexus between active duty service and his current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's left knee disorder to active duty, despite his contentions to the contrary. No medical professional has established a relationship between this disorder and active duty. Moreover, as noted above, the Veteran is not competent to provide testimony regarding the etiology of his left knee degenerative joint disease, as it is not diagnosed by unique and readily identifiable features, and does not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's left knee disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a chronic orthopedic disorder of the left knee, to include as secondary to a service-connected right knee disability, is denied. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Board remanded the Veteran's service connection claim for a lumbar spine disorder in July 2012, in order to afford the Veteran a VA examination and opinion. The Veteran underwent a VA examination in August 2012. A negative secondary service connection opinion was rendered. Due to what appears to be an administrative error, the Veteran was once again scheduled for, and underwent, another VA examination to evaluate his back. This VA examiner determined that the Veteran's "spinal condition may be more likely due to the knee condition." However, the Board finds that the medical examination does not contain sufficient detail to decide the claim on appeal. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). Significantly, rationale for the positive August 2012 VA opinion is lacking. The Court has held that to have probative value, a medical examination submitted to the Board must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-1 (2008); see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusions with an analysis that can be considered and weighed against contrary opinions). A new opinion is therefore warranted. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted his VA examination in June 2013, or to a qualified medical professional if the June 2013 VA examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The claims file and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's chronic orthopedic disorder of the lumbar spine is caused by, or aggravated by, his service-connected right knee disability to include altered gait and asymmetric stress; or is at least as likely as not (a 50 percent probability or greater) casually related to service. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder (i.e., a baseline) before the onset of the aggravation. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs