Citation Nr: 1328395 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 05-29 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hip arthritis. 2. Entitlement to service connection for residuals of a right foot injury, to include arthritis. 3. Entitlement to service connection for left knee arthritis, to include as secondary to residuals of a right foot injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona (RO). The Board observes that, during his June 2011 VA examination, the Veteran reported that he did not have a bilateral hip disability and that he "misunderstood and reported hips when he really meant lumbar low back pain." While the Veteran raised the issue of entitlement to service connection for a lumbar spine disorder during his June 2011 VA examination, review of the record reflects that entitlement to service connection for a low back disorder was denied by the Board in August 2008. However, the Veteran did not request that his previously denied claim for entitlement to service connection for a low back disorder be reopened, and has not submitted any new argument or evidence in support of his previously denied claim; therefore, the Board does not find that the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disorder has been raised by the record. The issue of entitlement to service connection for a left knee disability is 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 evidence of record does not establish a current diagnosis of a right or left hip disability. 2. The evidence of record reflects current diagnoses of right foot skin pigmentation changes with soreness. 3. The objective medical evidence of record reflects that the Veteran's current right foot disability is a residual of a prior soft tissue crush injury to his right foot, sustained during service. CONCLUSIONS OF LAW 1. The criteria for service connection a right or left hip disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for a right foot disability have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied with regard to the Veteran's claim for entitlement to service connection for a right foot disability, the Board is not precluded from adjudicating that issue. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting entitlement to service connection for a right foot disability. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). With regard to the Veteran's claim for entitlement to service connection for a bilateral hip disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Letters dated in March 2004, May 2004, July 2004, and March 2006 satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re- adjudication of the claim). The Veteran's VA medical treatment records and identified private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's service treatment records from 1955 through 1964 have been obtained and associated with the claims file; however, despite several attempts to obtain the service treatment records from 1964 to 1974, responses from the National Personnel Records Center (NPRC) and the Naval Medical Center have shown that those records are unobtainable and that further efforts to locate them would be futile. In April 2004, the NPRC provided the Veteran's available service treatment records. In June 2004, the NPRC indicated that, after an extensive and thorough search, they were unable to locate any additional records and that either additional records did not exist or the NPRC does not have them, and that further efforts to locate them would be futile. An October 2004 response from the NPRC reflects that all available separation documents were provided and that there were no additional service treatment records on file. In September 2008, the RO requested that the NPRC furnish all sick call logs for the Veteran's right foot injury on the U.S.S. CALVERT. The NPRC responded that there were no service treatment records in the file, and that an April 2004 response contained the Veteran's service treatment records. In a November 2008 response, the Naval Medical Center reported that the Veteran's records had been retired for permanent storage to the NPRC. In February 2009, the Veteran was notified of the unsuccessful attempts to obtain his service treatment records from 1964 through 1974, and that he could assist in helping VA to obtain them. However, the Veteran did not respond to that letter. In May 2009, the RO requested that the NPRC search for any clinical records for the Veteran during 1973. In July 2009, the NPRC responded that they were able to locate some clinical records from that time, and provided them to the RO. Despite its numerous attempts, VA has been unable to locate the Veteran's service treatment records or alternative records from 1964 through 1974, and further efforts to obtain them would be futile. Accordingly, there is no basis for further pursuit of the Veteran's missing service treatment records. 38 C.F.R. § 3.159(c)(2). In cases where service records are unavailable, there is a heightened obligation to assist the claimant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The Veteran underwent a VA examination with respect to his claim for entitlement to service connection for right and left hip disabilities in June 2011. The Board acknowledges the argument made by the Veteran's representative in his May 2013 brief that the June 2011 VA examination which found no evidence of degenerative changes in the hips was inadequate because the examiner did not discuss whether there were any soft tissue changes secondary to altered gait by the left knee. However, after review of the June 2011 examination report, the Board does not agree that the June 2011 examination is inadequate with respect to the issue of entitlement to service connection for a bilateral hip disorder. During the June 2011 VA examination, the Veteran denied a history of injury to his hips and also denied ever having pain in his hip joints. He explained to the examiner that he "misunderstood" and that he "reported hips when he really meant lumbar low back pain." Accordingly, the VA examiner did not perform an examination of the Veteran's hips and concluded, based upon the evidence of record and the Veteran's reports that he had no symptomatology, that there was no evidence of arthritis and that the hips were normal. Moreover, the examiner did not merely state that there was no arthritis in the hips, but reported that there were "no disabilities affecting either left or right hip." As there was no reported hip symptomatology during the examination and the Veteran has never suggested that he had a soft tissue injury in his hips secondary to altered gait by the left knee, the VA examiner's opinion is not inadequate for failing to address that issue. Moreover, the Board finds the June 2011 VA examiner's opinion to be adequate in this case, as it is based upon a complete review of the Veteran's claims file as well as an interview with the Veteran in which the Veteran denied any hip symptomatology. Thus, the Board concludes that the June 2011 VA examination is adequate with regard to the Veteran's claim for entitlement to service connection for a bilateral hip disability. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ in this case specifically identified to the Veteran, prior to his testimony, the issues on appeal and specifically identified the intended focus of the testimony via questions to the Veteran. Additionally, the Veteran demonstrated actual knowledge of what was needed, and provided the appropriate testimony to further clarify all lay bases of evidence. The VLJ also asked questions to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has he identified any prejudice in the conduct of the Board. By contrast, the hearing focused on the elements necessary to substantiate the Veteran's claim; through his testimony, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. Accordingly, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2); any error in notice or assistance by the VLJ at the January 2008 Board hearing constitutes harmless error. There is no indication in the record that any additional evidence, relevant to the issue decided herein, 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, 129 S. Ct. 1696 (2009). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). I. Right Foot Disability The Veteran contends that service connection is warranted for a right foot disability. During a January 2008 hearing before the Board, and in various other statements in the record, the Veteran explained that, in the late 1960's, he injured his right foot during service when he slipped on a V-belt of a landing craft. He explained that his foot was very discolored and that he received treatment onboard the U.S.S. CALVERT, which included pain medication. He reported that, since that time, his foot has been discolored and has been painful. During the January 2008 hearing, the VLJ described the appearance of the Veteran's right foot for the record, and noted that the foot and ankle were discolored and were blue, green, brown, and black behind the ankle bone on the inside of the right ankle. There was also spotting in the skin, bruising, and evidence of contusion. As noted above, the Veteran's service treatment records from 1964 through 1974 are unavailable. The available service treatment records are silent as to any complaints or treatment for a right foot injury during service. In that regard, August 1955, May 1959, and June 1964 examination reports all show the feet to be normal, and in August 1955 and June 1964 reports of medical history, the Veteran denied a history of foot trouble. A February 2004 VA treatment record reflects that the Veteran reported right hip and leg pain stemming from an injury in the late 1960's. In February 2009, the Veteran underwent a VA examination. He reported that he injured his right foot in approximately 1963 when his foot was jarred by an engine wheel. He explained that he sustained a contusion, but no fractures, and that there were no surgeries, casting, or treatments. Physical examination of the right foot was reported to be normal. X-rays of the right foot were negative for arthritis, but there was a question of possible osteopenia. The VA examiner determined that the Veteran's right foot was normal with no degenerative joint disease on X-ray. The examiner opined that, since there was no documentation of a right foot condition or treatment in the claims file, that the Veteran's right foot symptoms were not related to his active duty service. In June 2011, the Veteran underwent another VA examination. He reported a right foot injury in 1962 when his foot was caught on a V-belt in a landing craft boat. He stated that he sustained a soft tissue crush injury to the foot without fracture. He noted that, since that time, he has had intermittent pain. Physical examination of the right foot showed stasis pigmentation on the medial aspect of the right foot and ankle with mild foot tenderness. After reviewing the Veteran's claims file, the VA examiner diagnosed prior soft tissue crush injury to the right foot with the only residual on examination being skin pigmentation changes and low-grade soreness. After thorough consideration of the evidence of record, the Board concludes that service connection for right foot pigmentation changes with low-grade soreness is warranted. There is a current diagnosis of right foot pigmentation changes with low-grade soreness. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Although the Veteran's service treatment records do not reflect evidence of a right foot injury during service, the Veteran has provided competent and credible lay statements and testimony that he injured his right foot during service. The Veteran's statements with regard to his in-service right foot injury have been consistent throughout his appeal, and the Board finds no reason to doubt the credibility of his statements. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Thus, the Board finds the Veteran's lay statements as to the reported in-service right foot injury to be credible. In addition, the June 2011 VA examiner diagnosed prior soft tissue crush injury to the right foot with the only residual on examination being skin pigmentation changes and low-grade soreness. This diagnosis links the Veteran's current right foot skin pigmentation changes and low-grade soreness to his prior soft tissue crush injury of the right foot. Although the February 2009 VA examiner determined that the Veteran did not have a right foot disability related to his active duty service, the Board does not afford that opinion significant probative value, as the examiner does not appear to have considered the right foot skin changes acknowledged by both the VLJ in the Veteran's January 2008 hearing as well as the June 2011 VA examiner. Moreover, the February 2009 VA examiner did not consider or address any of the Veteran's competent and credible lay statements of an in- service right foot injury. For the foregoing reasons, the Board affords significantly more probative value to the June 2011 VA examination, and very little probative weight to the February 2009 examination. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that factors for assessing the probative value of a medical opinion include access to the claims file and the thoroughness and detail of the opinion). The Board acknowledges the arguments made by the Veteran that he has been experiencing right foot skin pigmentation changes and pain consistently since his in-service right foot injury. Skin pigmentation changes with pain is not listed among the diseases recognized by VA as chronic in 38 C.F.R. § 3.309(a). Thus, continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to the Veteran's claim, and entitlement to service connection cannot be awarded on this basis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, a veteran's lay statements may be sufficient evidence to establish entitlement to service connection in any claim. See 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks service connection[,] must be considered on the basis of . . . all pertinent medical and lay evidence"; see also 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). With consideration of the benefit of the doubt, the Board concludes that the June 2011 VA examination linking the Veteran's current skin pigmentation changes and low-grade soreness to a prior soft tissue crush injury, along with the Veteran's competent and credible lay statements that he has had pain and skin pigmentation changes in his right foot and ankle since his in-service injury, are sufficient evidence to link the Veteran's current right foot skin pigmentation changes and soreness to his in-service right foot injury. Accordingly, service connection for right foot skin pigmentation changes and soreness is warranted. II. Bilateral Hip Disability The Veteran contends that service connection is warranted for a bilateral hip disability. During a January 2008 hearing before the Board, he testified that he was told that he had arthritis in his hips. He reported that he had pain in his hips during service and that he was given pain medication for them at that time. He acknowledged that he was not diagnosed with a hip disability during service. The Veteran believes that he has a hip disability which is related to wear and tear sustained during service as a result of performing his duties, which included frequent walking on steel and climbing up and down ladders. The Veteran's available service treatment records are silent as to any complaints of or treatment for a bilateral hip disability. An August 1955 entrance examination, a May 1959 examination, and a June 1964 examination all show that the Veteran's lower extremities were normal. In reports of medical history completed in August 1955 and June 1964, the Veteran denied a history of arthritis. The post-service evidence of record does not reflect a currently diagnosed chronic bilateral hip disability. A February 2003 VA treatment record reveals that the Veteran reported a dull ache in his left hip. Physical examination of the right hip showed full range of motion with some discomfort on full hip flexion and abduction. There was no trochanteric tenderness and the feet were warm with good pulses. The diagnosis was probable mild degenerative joint disease of the hips. A February 2004 VA treatment record reveals that the Veteran complained of right hip and leg pain which he related to an injury in the 1960's. He reported that the pain was getting worse. No diagnosis pertinent to the hips was made at that time. In a January 2008 letter, M. Carnett, D.O. reported that the Veteran had a history of bilateral hip pain complaints, and that the Veteran related that his pain started during service between 1955 and 1974. Dr. Carnett subsequently concluded that it was "more likely than not that [the Veteran's] . . . hip pain . . . [is] related to his service in the Navy." In February 2009, the Veteran underwent a VA examination. The Veteran reported that he first noticed bilateral hip pain and stiffness in 1998, and stated that the pain has been intermittent since its onset. He noted that he experienced the pain primarily with prolonged periods of walking or standing. He denied a history of treatment for hip pain as well as the use of assistive devices. Physical examination of the right hip was normal. Gait was within normal limits, there was no pelvic tilt, leg lengths were equal, and range of motion was essentially normal. There was no pain during range of motion studies and there was no additional limitation following repetitive range of motion studies. X-rays of the right hip showed a sclerotic lesion of the right proximal femur, and X-rays of the left hip were normal. The examiner concluded that the bilateral hip examination was normal with no evidence of degenerative joint disease and no documentation of any hip condition or treatment, historically. The examiner acknowledged that there was an incidental finding of a sclerotic lesion on the right proximal femur, which was nondegenerative in nature, and noted that the Veteran was informed. In June 2011, the Veteran underwent another VA examination. He denied a history of injury to his hips, and stated that he has never had pain in his hip joints. He denied past hip treatments and current symptoms. He reported that he "misunderstood" and that he "reported hips when he really meant lumbar low back pain." Accordingly, as the Veteran denied any history of or current bilateral hip symptoms, the examiner did not perform a physical examination. The examiner reviewed the evidence in the claims file, including the prior X-rays of the Veteran's hips, and noted that there was one entry found for clinical findings of stiffness in the hips with a suggested possibility of hip arthritis, but stated that no such arthritis was found on X-rays. The diagnosis was "[n]ormal hips, no arthritis" and the examiner concluded that there were "no disabilities affecting either left or right hip." After thorough consideration of the evidence of record, the Board concludes that the evidence does not establish that the Veteran has a current diagnosed bilateral hip disability. As noted above, the 2009 X-rays showed normal findings with an incidental discovery of a sclerotic lesion on the right proximal femur, which was nondegenerative in nature. Although there was a suggestion of probable degenerative joint disease of the hips in 2003, the 2009 X- rays revealed that there was no arthritis in the hips. The Board acknowledges the Veteran's sporadic reports of bilateral hip pain; however, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Moreover, the Veteran reported during his June 2011 VA examination that he did not have any bilateral hip symptoms at that time, including pain, and also denied a history of knee pain, explaining that he "misunderstood" and was referring to low back pain instead. Despite the Veteran's inconsistent reports of pain, the medical evidence does not reflect a currently diagnosed bilateral hip disability or document symptoms suggestive of such a disability. Without a currently diagnosed bilateral hip disability, a claim for service connection cannot be substantiated. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is also no diagnosis of a bilateral hip disability at any point during the claim or appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). For these reasons, the Veteran's claim must be denied. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and service connection is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right foot skin pigmentation changes with pain is granted. Entitlement to service connection for a bilateral hip disability is denied. REMAND In June 2010, the Veteran's claim for entitlement to service connection for a left knee disability was remanded to the RO in order to obtain an adequate VA opinion as to the etiology of that disability. Although the Veteran underwent the scheduled examination in June 2011, review of the opinion provided reflects that it is, again, inadequate upon which to base an appellate decision. Barr, 21 Vet. App. at 312 (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). In its June 2010 remand, the Board requested that the Veteran be provided with a VA examination and that the examiner provide opinions as to whether the Veteran's current left knee disability is related to his active duty service, with consideration of all of the evidence in the claims file, including the Veteran's lay statements. The June 2011 VA examiner diagnosed left knee replacement with good results and opined that the Veteran's left knee arthritis was "less likely as not" a residual of a right foot injury. The examiner stated that the Veteran had no in-service knee injury, never had any gait abnormalities which might predispose him to accelerated arthritis, and that any in-service "wear and tear" would be expected to lead to severe resultant arthritis before this time. Although the examiner determined that the Veteran's left knee disability was not a residual of a right foot injury during service, the VA examiner did not provide any supporting explanation or rationale for that conclusion. Additionally, the examiner does not appear to have considered whether the Veteran's left knee disability was caused or aggravated by his right foot disability. As the Veteran contends that his left knee disability was caused by his right foot disability, an opinion as to that theory of entitlement is required. Therefore, the RO should request that the VA examiner who provided the June 2011 VA examination provide a supplemental opinion with supporting explanation and rationale as to why the Veteran's left knee disability is not related to an in-service right foot injury and also whether the Veteran's left knee disability was caused or aggravated by his service-connected right foot disability. Accordingly, the case is REMANDED for the following action: 1. Obtain a supplemental opinion from the June 2011 examiner (or, if unavailable, a new VA examiner). Provide the claims file to the examiner and ensure that it is reviewed. Following a review of the service and post-service medical records, as well as the lay statements and testimony in the claims file, the examiner should provide the following opinions: a. Is it "at least as likely as not" (50 percent probability or more) that the Veteran's current left knee disability is related to his active duty service, including an in-service right foot injury? b. Is it "at least as likely as not" (50 percent probability or more) that the Veteran's current left knee disability was caused or aggravated by his service- connected right foot disability? Aggravation is defined as a permanent worsening beyond the natural progress of the disability. The examiner must provide a thorough explanation and rationale for all opinions provided. If the examiner cannot provide a requested opinion without resorting to speculation, the examiner must state that fact, and provide the reasons why an opinion would require speculation as well as indicate what evidence would be necessary to form an opinion. 2. The RO must notify the Veteran that it is his responsibility to report for all scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond. The appeal must then be returned to the Board for appellate 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs