Citation Nr: 1328276 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-03 516A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for congestive heart failure, to include as a result of exposure to ionizing radiation (plutonium) and/or a service-connected disability. 2. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a disorder of the cervical spine. 3. Entitlement to service connection for a disorder of the right wrist, to include as secondary to service-connected bilateral knee disabilities. 4. Entitlement to service connection for a disorder of the left shoulder, to include as secondary to service-connected bilateral knee disabilities. 5. Entitlement to service connection for a disorder of the right hip, to include as a result of exposure to ionizing radiation (plutonium) and/or a service-connected disability. 6. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for convalescence following right hip surgery in March 2008. 7. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound. 8. Entitlement to basic eligibility for assistance in acquiring specially-adaptive housing. 9. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to February 1975, and from July 1991 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2007, September 2008, and December 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified during a Board hearing, held by the undersigned, in June 2012. A copy of the hearing transcript (Transcript) has been associated with the record. The Board notes that, with regard to the issue of entitlement to an automobile allowance, or specially-adapted equipment, the Veteran included this issue on his formal appeal (VA Form 9) dated February 11, 2009. However, that appeal was not timely, as the RO confirmed the denial of the issue via a statement of the case dated November 13, 2006. The RO did not certify this issue on appeal. To be considered timely, a substantive appeal must be filed within 60 days from the date that the RO mails the statement of the case to the appellant, within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, or within any extended time limits prescribed pursuant to a timely-filed request for extension of time. 38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 20.302(b), 20.303 (2012). If the claimant fails to file a substantive appeal in a timely manner, "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). As such, because the Veteran included this issue within his formal appeal, the Board will refer the issue of whether new and material evidence has been received to reopen the issue of entitlement to an automobile allowance, or specially-adapted equipment, to the RO for further development. The issues of whether new and material evidence has been received to reopen the issues of entitlement to an automobile allowance, or specially-adapted equipment; entitlement to service connection for left arm and right leg disorders, secondary to a cervical spine disorder (October 2008), as well as posttraumatic trigger fingers of the bilateral hands and an increased rating for his lumbar disability (January 2012) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The issues of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for congestive heart failure, to include as a result of exposure to ionizing radiation (plutonium) and/or a service-connected disability; entitlement to service connection for disorders of the right wrist, left shoulder, and right hip, all to include as secondary to service-connected bilateral knee disabilities; entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for convalescence following right hip surgery in March 2008; entitlement to SMC based upon the need for regular aid and attendance of another person or by reason of being housebound; entitlement to basic eligibility for assistance in acquiring specially-adaptive housing; and entitlement to a special home adaptation grant 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. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. In an unappealed March 2005 rating decision, the RO denied service connection for a disorder of the cervical spine, on the basis that there was no evidence that the Veteran had a disorder of the cervical spine that had its onset in service or was otherwise etiologically-related to his active service, nor was an opinion of record linking any current disorder of the cervical spine to the Veteran's service. 2. Evidence submitted since the RO's March 2005 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a disorder of the cervical spine, and therefore does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's March 2005 rating decision denying service connection for a cervical spine disorder is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has not been received since the RO's March 2005 rating decision; thus, the claim for service connection for a cervical spine disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002), 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue addressed below, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the 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. Neither the Veteran nor his representative has 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. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in October 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in December 2008. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) addressed directives consistent with the VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. The October 2008 letter provided adequate, specific notice of what constitutes material evidence in the case at hand, which met the directives of Kent. Specifically, the Veteran's claim was denied on the basis that there was no evidence that the Veteran had a disorder of the cervical spine that had its onset in service or was otherwise etiologically-related to his active service, nor was an opinion of record linking any current disorder of the cervical spine to the Veteran's service. VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Although reference is made to an April 1986 document which indicated that VA treatment records from the Veteran's first period of active service were unavailable for review, such records were associated with the claims file in 1986. Further, some service treatment records from the Veteran's second period of service have been added to the record, though the documents appear to be incomplete. In a situation such as this, there is a heightened obligation to assist the Veteran in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the Board finds that no additional evidence, which may aid the appellant's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. See Quartuccio, supra. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). However, VA need not conduct an examination with respect to the claim of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection, because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). Moreover, the question of the adequacy of VA medical examination is mooted upon Board's determination that the veteran not entitled to a reopening of his claims and thereby not entitled to a VA examination. Woehlaert v. Nicholson, 21 Vet.App. 456 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence In a March 2005 decision, the RO denied the Veteran's claim for entitlement to service connection for a disorder of the cervical spine. His claim was denied because there was no evidence that the Veteran had a disorder of the cervical spine that had its onset in service or was otherwise etiologically-related to his active service, nor was an opinion of record linking any current disorder of the cervical spine to the Veteran's service. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights. He did not appeal the RO's decision nor did he submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b). That decision is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a) , 3.160(d), 20.200, 20.302, 20.1103. The Board notes that a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. The Court noted the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran's claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). To prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Since the prior final decision, new evidence has been added to the claims file. The new evidence consists of VA outpatient treatment reports, private treatment reports, and additional statements authored by the Veteran, to include a June 2012 Board hearing transcript. Having reviewed VA treatment records associated with the Veteran's claims file, the record continues to remain silent for any finding that relates a current cervical spine disorder to the Veteran's active service. Indeed, the records indicate treatment for a cervical spine disorder, to include surgical intervention (laminectomy and fusions, C3- 6), one of which was performed in August 2008. At that time, the Veteran reported that he sustained neck trauma while in the Navy, which was the cause of his discomfort. Attention is also directed to progress notes dated in June 2007 with MRI reports indicating disc space narrowing between C3-6 with severe foramenal stenosis and bulging discs. However, there is simply no medical evidence of record to show that any current cervical disorder, of which the Veteran suffers from several, was in any way related to either period of active service. While private medical documents have been added to the file, these reports have addressed his claims for aid and attendance, as well as his application for specially-adaptive housing. Consideration has been given to the Veteran's assertions that he suffers from current cervical spine symptomatology that is related to his period of service. The Veteran testified in June 2012 that his cervical condition was tied to migraines, which was ultimately caused by an in-service fall. However, these statement are essentially duplicative of the statements associated with the claims file at the time of his initial denial. These statements are thereby not new evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence). As new and material evidence has not been received since the RO's March 2005 decision, the claim is not reopened. 38 U.S.C.A. §§ 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a disorder of the cervical spine. REMAND Although the Board sincerely regrets any additional delay, the issues of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for congestive heart failure, to include as a result of exposure to ionizing radiation (plutonium) and/or a service-connected disability; entitlement to service connection for disorders of the right wrist, left shoulder, and right hip, all to include as secondary to service-connected bilateral knee disabilities; entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for convalescence following right hip surgery in March 2008; entitlement to SMC based upon the need for regular aid and attendance of another person or by reason of being housebound; entitlement to basic eligibility for assistance in acquiring specially-adaptive housing; and entitlement to a special home adaptation grant must remanded for further development. First, as to whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for congestive heart failure, the Board points out that VCAA notice dated in November 2006 did not satisfy the directives of Kent. Further, that deficiency was not cured by any subsequent notice pertaining to this issue. Therefore, on remand, proper notice should be sent to the Veteran's current address, regarding the issue of service connection for congestive heart failure, which meets the criteria of Kent. With regard to his claims for secondary service connection for disorders of the right wrist, left shoulder, and right hip, the Veteran testified in June 2012 that these issues were causally-related to service-connected bilateral knee disabilities. Specifically, he linked these disorders to his use of a wheelchair, which he used because of service- connected disabilities. He testified that using the mechanical wheelchair damaged his wrists and hands. His spouse indicated that lifting the chair in and out of the car resulted in injury to his hips, wrist, and back. See Transcript, p. 4. The Veteran also stated that lifting the wheelchair into the car caused injury to his left shoulder. See Transcript, p. 6. VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2012). In light of the Veteran's testimony with regard to his theory of entitlement on a secondary basis, the issues of entitlement to service connection for disorders of the right wrist, left shoulder, and right hip must be remanded so as to obtain probative medical opinions as to whether any such disorders are causally-related to his period of service, or to a service-connected disability. Regarding the Veteran's claim for entitlement to SMC based upon the need for regular aid and attendance of another person or by reason of being housebound, an application for medical services- vehicle distribution program dated June 21, 2009, contained a note from the Veteran's provider. The provider indicated that the Veteran was not able to use his legs, hips, or hands due to disabling osteoarthritis, and that he was wheelchair-bound and required aid and attendance. It was also noted that this aid was provided by his wife, and that an electric wheelchair was provided by VA. During his June 2012 Board hearing, his spouse testified that she did most of the driving, but that she had recently suffered a heart attack, and was therefore unable to provide the assistance as she had in the past. See Transcript, pp. 12-13. As it is unclear as to what level of care she is able to provide, as well as the Veteran's current level of functioning within his home, the Board is unable to determine whether the Veteran meets the requirements for a grant of SMC based on housebound status. The claims file reflects that he has not been afforded a VA aid and attendance examination with claims file review. Accordingly, the Board finds that the appellant should be afforded such an examination in order that the evaluation is fully informed. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, the Board notes that the issue of entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 is dependent on the outcome of the Veteran's claim for entitlement to service connection for a disorder of the right hip. The appropriate remedy where a pending claim is inextricably intertwined with another claim is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a Board decision with respect to entitlement to a temporary total disability rating would be premature until development is completed to address his other claim. The Veteran should be contact and asked to specify what period or periods of hospitalization should be the basis for the award of paragraph 30 benefits, as the evidence is unclear in this regard. Finally, with regard to the issues of entitlement to basic eligibility for assistance in acquiring specially-adaptive housing, as well as entitlement to a special home adaptation grant, the Board notes that statements made by the Veteran, on more than one occasion, indicate that these claims may have been granted by the RO, in whole or in part. For example, in a statement dated March 13, 2011, the Veteran indicated that VA installed ramps and hand bars in the restrooms of his home, and approved a walk-in bathtub. During the Veteran's June 2012 Board hearing, he testified that he had a walk-in tub which was installed by VA. See Transcript, p. 12. As such, it is unclear as to whether the RO has granted one or both of these claims, and whether an additional and/or temporary file exists which contains records pertinent to this appeal. On remand, any such records should be associated with the claims file, and the RO/AMC should determine whether either claim has been granted to date. The Board also points out that, while these issues were on appeal at the time of the June 2012 Board hearing, they were not included on the March 2012 VA Form 8, Certification of Appeal and were not addressed during said Board hearing. On remand, the RO/AMC should contact the Veteran in order to determine whether he requires a Board hearing as to these issues, if they have not previously been granted. That request should then be associated within the Veteran's claims file, as well as any response received from the Veteran. If the Veteran desires a Board hearing as to these issues, the RO/AMC should schedule a hearing in accordance with the Veteran's response. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should associate with the record any documents maintained in a separate or temporary file at the Los Angeles, California RO, to include any additional records pertinent to the Veteran's claims for entitlement to basic eligibility for assistance in acquiring specially-adaptive housing and/or entitlement to a special home adaptation grant. If such records do not exist, that fact should be noted in the record. The RO/AMC should also note whether those claims were granted at any time during the appellate process, in whole or in part. 2. Copies of updated treatment records should be obtained and added to the claims file. 3. The RO/AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. Regarding the issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for congestive heart failure, the VCAA notice should include specific notice of why the claim was previously denied and what constitutes material evidence for the purpose of reopening the claim. 4. The Veteran should be contacted and asked to specify the period or periods of hospitalization/surgery that form the basis of his claim for benefits under 38 C.F.R. § 4.30. Following receipt of a response, all appropriate action should be taken. 5. The RO/AMC should schedule a VA joints examination to assess the severity and etiology of the Veteran's currently- diagnosed disorders of the right wrist, left shoulder, and right hip. The Veteran's claims folder must be made available to the examiner for review. The examiner shall specifically note a review of the Veteran's service treatment records and comment on the significance of such. The examiner shall provide an opinion as to the following: Whether it is at least as likely as not (50% possibility or greater) that any disorder of the right wrist, left shoulder, and/or right hip is related to (a) either period of active service, (b) proximately due to or the result of any service-connected disability, to include the lumbar spine and bilateral knees, or (c) aggravated or permanently worsened by a service-connected disability. If it is determined that any current disorder is related to a service-connected disability, to the extent that is possible, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. The RO/AMC should schedule the appellant for a VA examination by an appropriately qualified examiner to determine whether the Veteran requires regular aid and attendance or is housebound. The following considerations will govern the examination: (a) The claims folder, and a copy of this remand will be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. (b) The examiner should provide an opinion as to whether the appellant requires the regular aid and attendance of another person to perform daily self care tasks such as bathing, dressing, attending to the wants of nature, or feeding himself, or to protect him from the hazards of his daily environment. (c) The examiner should provide an opinion as to whether the appellant is substantially confined to his house or immediate premises by reason of a disability or disabilities reasonably certain to remain throughout his lifetime. A rationale for any opinion expressed should be provided. If the examiner is unable to state an opinion without a resort to speculation, he or she should so state. Any other necessary examinations must be conducted, if deemed necessary by the examiner or by the RO/AMC. 7. After completing the above actions and any other notification or development deemed necessary, the Veteran's claims should be readjudicated. If any benefit sought on appeal is not granted, he and his representative should be provided with a supplemental statement of the case and afforded an appropriate period of time for response. 8. The RO/AMC should afford the Veteran an opportunity to testify before a member of the Board as to the issues of entitlement to basic eligibility for assistance in acquiring specially-adaptive housing and/or entitlement to a special home adaptation grant, if these claims have not been previously granted and he so chooses. He should be asked to indicate if he wants a Board videoconference or travel hearing. A copy of the request for clarification should be associated with the claims file. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs