Citation Nr: 1329981 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-25 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a lumbar spine disability, to include an arthritic condition. 2. Entitlement to service connection for a lung or respiratory disability. 3. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his girlfriend ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from January 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran and his girlfriend testified at a hearing at the RO before the undersigned Veterans Law Judge in May 2011; a transcript of that hearing is associated with the claims file. This appeal was previously before the Board in December 2011. At that time, entitlement to service connection for scars of the left forearm was granted. This represents the benefit sought on appeal, and this issue is no longer before the Board. The Board remanded the remaining issues to the Appeals Management Center (AMC) for further development. Subsequently, service connection for a left elbow disability and a residual scar of the left thigh due to a boil was established in an October 2012 rating decision. This also represents the benefit sought on appeal for the issues of service connection for a left arm disorder and a groin condition, and these issues are no longer on appeal. The issues of entitlement to service connection for a right shoulder disability, a right arm disability, a lumbar spine disability, a lung disability and entitlement to a TDIU were returned to the Board in May 2013, at which time entitlement to service connection for a right arm disability was denied. The other issues were once again remanded for additional development. Subsequently, entitlement to service connection for a right shoulder disability was granted in an August 2013 rating decision. The remaining issues have been returned to the Board for further review. The Board has reviewed the Veteran's electronic record (Virtual VA and VBMS) prior to rendering a decision in this case. Although it contains records that are not in the claims folder, there is no evidence not previously considered by the RO. The issue of entitlement to a TDIU 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 1. Resolving all reasonable doubt in the Veteran's favor, the Board finds that he sustained an injury to his back as the result of an in-service jeep accident. 2. The Veteran has a current diagnosis of degenerative disc disease of the lumbar spine. 3. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's degenerative disc disease of the lumbar spine is the result of the in-service jeep injury. 4. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a respiratory condition. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for an award of service connection for a lung or respiratory disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112(2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473(2006). With respect to the Veteran's claim of service connection for a lumbar spine disability, the Board finds that the duty to notify and duty to assist the Veteran has been met. Furthermore, given the favorable nature of the decision in that appeal, any failure in the duty to notify or duty to assist is harmless error, as it has failed to result in any prejudice to the Veteran. As for the claim for service connection for a lung disability, the Veteran was provided with a letter in February 2007 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. These letters were provided prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has been met. The Veteran's service treatment records have been obtained. He contends that portions of his service treatment records, specifically records from Oak Knoll Naval Hospital and Moffett Field Hospital dating from 1974 to 1976, are missing. Requests for records were made of both of these facilities, and the response from each facility was negative. The AMC has made formal findings that there are no records available at either of these facilities. Private medical records from Kaiser Permanente and VA treatment records have been obtained. The December 2011 remand requested that the Veteran be provided an opportunity to identify any additional private medical records that should be obtained. While he had earlier indicated treatment at Hilo Medical Center in Hawaii and at El Camino Hospital, he did not respond to requests to provide authorization for VA to obtain records from those facilities. In this regard, the Board notes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193(1991) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Further regarding the duty to assist, the Veteran has offered testimony at a hearing before the undersigned Veterans Law Judge, and a transcript of this hearing is in the record. He was afforded VA examinations of his claimed lung disability in February 2012 and June 2013, and relevant opinions have been obtained from the examiners after a review of the claims folder. The May 2013 remand provided specific instructions to the June 2013 examiner, and these instructions were completed. In light of all of the above, the Board finds that VA has met its duty to assist the Veteran with his claim, and the Board will proceed with consideration of the appeal. Service Connection The Veteran contends that he has developed a low back disability and a lung disability as a result of active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004); see Caluza v. Brown, 1 Vet. App. 498, 506(1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253(1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be applied only for the chronic disabilities noted in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). The Veteran's low back disability includes arthritis, which is a disability listed in this regulation. If arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11(1999); Evans v. West, 12 Vet. App. 22, 30(1998), citing Owens v. Brown, 1 Vet. App. 429, 433(1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74(1997), citing Colvin v. Derwinski, 1 Vet. App. 171(1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49(2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187(1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180(1995). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions, as is the case here regarding etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456(2007). The Federal Circuit has held that "[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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337(Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95(1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Lumbar Spine Disability The Veteran attributes his back disability to a jeep accident in service. He states that he was in a jeep with three other people that rolled over, injuring his arm, shoulder, and low back. He has testified that he was then hospitalized at Oak Knoll Naval Hospital. He claims that he has experienced periodic low back pain ever since his discharge from service. The service treatment records show that the Veteran was treated for a boil over the lumbar area in October 1975. The remainder of these records is negative for complaints or treatment pertaining to the low back, and the February 1976 discharge examination states that the spine was normal. The service treatment records are also negative for a reference to a jeep accident, but do reflect treatment to the right wrist and left elbow in September 1974. The post service medical records are negative for evidence of a back disability until many years after discharge from service. Private treatment records from March 1982 show that the Veteran denied a history of low back pain during treatment for another disability. Additional private medical records show that the Veteran was seen with complaints of pain involving his lower back in July 2005. He reported having injured the area many times over the years. The examiner ordered a magnetic resonance imaging (MRI) study. This demonstrated mild diffuse disc bulge osteophyte at L2 to L3 that caused some mild central canal stenosis without foraminal compromise, and bifacet hypertrophic changes at L3 to L4 and L4 to L5. The impression was mild degree of changes as described. In a statement that accompanied his July 2006 claim, the Veteran reported that in 1974 or 1975 he had been in a jeep rollover accident in Sunnyvale, California. He said that he injured his right arm and lower back in this accident. The Veteran reported continued low back pain in private medical records dated June 2006. In a February 2008 statement, the Veteran stated that he had reviewed his claims folder and found that there were service treatment records missing from his folder. He asserted that his folder should include records dated 1974 and 1975 from Oak Knoll Naval Hospital and Hilo Medical Center. The Veteran also provided the name of a person who was in the jeep accident with him. A March 2008 statement from G. O. says that he was involved in a roll-over auto accident with the Veteran in approximately 1974 to 1975. He visited the Veteran at Oak Knoll Naval Hospital while he was being treated for his injuries. The Veteran submitted another statement regarding his jeep accident in July 2008 and again noted that this occurred in 1974 and 1975. He provided a list of the other three people in the jeep, which included G. O. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2011. He stated that his jeep wreck was in 1976, and that one of the passengers included G. O. He added that he had been driving his father's jeep and that his passengers began to rock it back in forth until the accident occurred. The Veteran reported that he was treated for his injuries at Oak Knoll Naval Hospital. He indicated he had first received treatment for his back disability following discharge during the period from 1976 to 1978. See Transcript. VA treatment records dating from 2008 to 2012 show that the Veteran has been followed for chronic low back pain. October 2009 records report the Veteran's history of a jeep accident. The Veteran stated that he had experienced chronic back pain ever since the accident. A MRI showed L5-S1 midline disc protrusion and minimal bilateral facet joint arthropathy, and minimal facet joint arthropathy at L4 to L5 and L3 to L4. The impression was chronic low back pain since a motor vehicle accident in 1975. August 2012 records state that he was being treated with a TENS unit, stretching exercises, and pain medications. The Veteran was afforded a VA examination of his back in June 2013. The claims folder was reviewed by the examiner. The examiner diagnosed degenerative disc disease, which dated from 1974. In describing the history of this disability, the examiner states that it was obtained from the Veteran, who said that he was involved in a motor vehicle accident when a jeep overturned in 1974 and injured his back. He was subsequently taken to the hospital and treated at Moffett Field, but that all attempts to obtain these records had been unsuccessful. The Veteran reported that his pain had continued since that time. The review of the record states that a 2005 MRI and October 2009 MRI showed L5-S1 midline disc protrusion and bilateral joint arthropathy, as well as some facet arthropathy. The examiner concluded that the Veteran did have a disability at the present time in that he had degenerative disc disease and joint arthropathy which had been confirmed radiologically. The examiner noted the Veteran's consistent contentions as to the jeep accident in service. The examiner concluded that based on his history and the claims file, it appeared the Veteran did sustain some injury during his time in service. The 2005 MRI showed problems with the lumbar spine, and the examiner stated that these changes usually take years to develop. Taking all of these factors into consideration, the examiner concluded that he would have to give the Veteran the benefit of the doubt. However, he could not say with certainty that the disability was service related without resorting to speculation. After careful consideration, the Board finds that the evidence both for and against entitlement to service connection for a lumbar spine disability is in relative equipoise. That being the case, entitlement to service connection is warranted. The medical records verify that the Veteran has a current low back disability, diagnosed to be degenerative disc disease. The first requirement for service connection has therefore been met. The Veteran has maintained consistently throughout the seven year course of his appeal that he sustained a back injury in a jeep accident during active service. Although he testified at the May 2011 hearing that this accident occurred in 1976 in contrast to his other statements that it was in either 1974 or 1975, the other details of the accident have been consistent, and the Veteran testified as to the truth of his contentions under oath. There are service treatment records showing that the Veteran was treated for injuries to both arms as the result of an unnamed incident in September 1974, which roughly corresponds to the claimed time of the accident. Finally, he has submitted a March 2008 statement from G. O. who purports to have been in the jeep accident with the Veteran. Although G. O. does not state the Veteran injured his back, he does confirm that an accident occurred and that the Veteran was treated at Oak Knoll Naval Hospital. The Board finds both the Veteran's statements and the statement of G. O. to be credible. The Veteran is competent to describe the injury to his back and the symptoms that resulted and continued over the years. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran sustained an in-service injury to his back. Finally, the Board will also find that there is a relationship between the in-service injury and the current disability. The October 2009 VA treatment records include an impression of chronic low back pain since a motor vehicle accident in 1975. The June 2013 VA examiner stated that he could not say with certainty that the Veteran's current disability was the result of an injury in service without resorting to speculation, but agreed that the Veteran apparently sustained a back injury during service and suggested that when the Veteran was given the benefit of the doubt the current disability was the result of the in-service injury. In support of this conclusion this examiner added that the changes shown on the 2005 MRI usually take years to develop. There is no medical opinion that contradicts this finding. Once again, the Board resolves all reasonable doubt in favor of the Veteran and finds that there is a relationship between the claimed back injury in service and his current low back disability. It follows that all criteria for service connection have been met, and service connection for degenerative disc disease of the lumbar spine is warranted. Lung Disability The Veteran states that he worked in demolition during service and that he believes he inhaled asbestos dust performing this job. His records reflect that he was in a naval construction battalion (Seabee) during service. The Veteran's March 1973 entrance examination is negative for a lung disability. The Report of Medical History obtained at this time reflects a childhood history of asthma. The service treatment records do not show that the Veteran ever reported any respiratory symptoms or made any pertinent complaints. All subsequent medical examinations, to include the February 1976 discharge examination found that the lungs and chest were normal. A February 1976 chest x-ray was within normal limits. Post service medical records are devoid of any complaints or findings regarding a lung disability for many years following active service. April 1998 private treatment records show that the Veteran's lungs were clear to auscultation, and a review of symptoms was negative for respiratory findings. In a statement that accompanied his July 2006 claim, the Veteran expressed his belief that he had inhaled asbestos while performing construction work in the Navy. He said that he had breathing problems to this day. VA treatment records dating from 2008 to 2012 are negative for complaints or diagnoses regarding a lung disability. The Veteran was afforded a VA examination of his lungs in March 2012. The claims folder was reviewed by the examiner. The examiner answered "yes" as to whether or not the Veteran had ever been diagnosed with a respiratory condition. He indicated that this diagnosis was chronic obstructive pulmonary disease. An X-ray study conducted at this time demonstrated clear lungs, and the impression was no acute pulmonary disease. Physical examination found that the lungs were clear bilaterally. Pulmonary function testing was not conducted. The examiner opined that the Veteran's respiratory condition/chronic obstructive pulmonary disease was not caused by his military service. The examiner reasoned that the Veteran had a history of childhood asthma, that he denied having any respiratory condition, and that he had a history of smoking that contributed to chronic obstructive pulmonary disease. The Veteran was afforded a second examination of his lungs in June 2013. The examiner was instructed to disregard any history of childhood asthma in formulating his opinion. The claims folder was reviewed. When asked if the Veteran had or had ever had a respiratory condition, the examiner answered "no." In the history section, it was reported that the Veteran denied having a respiratory condition. He also disputed having childhood asthma. The medical records were negative for records or testing consistent with asthma or chronic obstructive pulmonary disease apart from the March 2012 examination. The Veteran did not complain of cough, shortness of breath, exertional dyspnea, or wheezing. He did not use inhalers. The March 2012 chest x-ray was normal without lesions or findings consistent with chronic obstructive pulmonary disease. Pulmonary function testing was completed as part of the current examination. At the conclusion of the examination and review of the record, the impression was that the pulmonary function study was within normal limits. The examiner opined that it was less likely than not that the Veteran's claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there were no symptoms or diagnostic findings to show any lung disability. Initially, the Board notes that the March 1973 Report of Medical History obtained upon entry into active service references a history of childhood asthma. However, the examination conducted at this time found that the respiratory system was normal. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2013); 38 C.F.R. § 3.304(b) (2013). A history of pre-service existence of conditions recorded at the time of entrance examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1)(2). In order to rebut the presumption of soundness, the evidence, whatever it may be, must lead, clearly and unmistakably, to the conclusion that the injury or disease existed before the veteran entered the service. Harris v. West, 203 F. 3d 1347 (2000). Asthma was not noted on the Veteran's March 1973 entrance examination, and he is entitled to the presumption of soundness. The sole reference to childhood asthma contained in the medical history does not constitute clear and unmistakable evidence that asthma existed prior to service, and the presumption is not rebutted. In addition, the Board does not dispute the Veteran's contention that he may have inhaled asbestos while doing construction work during service. However, merely inhaling asbestos is not enough to establish service connection. In addition, there must be a current disability that is the result of inhaling asbestos. In this instance, the Board concludes that the preponderance of the evidence is against a finding that the Veteran has a current lung disability. The only diagnosis of a lung disability is found in the March 2012 VA examination, and this diagnosis was questioned by the June 2013 examiner. There is no medical evidence of complaints or findings regarding a lung disability either during service or until many years after discharge from service. In fact, although the March 2012 VA examination states that the Veteran has chronic obstructive pulmonary disease, it also states that he denied having any respiratory condition. An X-ray study conducted at that time was normal. The Veteran also denied having or ever having had a respiratory condition at the June 2013 VA examination. Pulmonary function testing was normal, as were a review of x-ray studies. While the March 2012 diagnosis of chronic obstructive pulmonary disease was noted, the examiner indicated that this diagnosis was not supported by either the Veteran's symptoms or the x-ray study obtained at the time of that examination. The examiner concluded that the Veteran did not have a current lung disability. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). In view of the fact that the preponderance of the evidence is against a finding that the Veteran has a current lung disability, the Board concludes that entitlement to service connection is not warranted. The Board is aware that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, in this instance the June 2013 examiner indicates that the March 2012 diagnosis of chronic obstructive pulmonary disease was not supported by either the Veteran's symptoms or the x-ray study obtained at that time. It should be further noted that the Veteran himself has denied having a current respiratory disability on both the March 2012 and June 2013 examinations. In the absence of a confirmed diagnosis of a current disability, service connection for a lung disability is not established. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for a lung or respiratory disability is denied. REMAND The Veteran contends that he is entitled to a TDIU. He argues that his service connected disabilities preclude gainful employment. The Veteran argues that his back disability makes it difficult to work. The Board has now granted service connection for this disability. In view of the potential impact of this decision on the claim for TDIU, the Board finds that the RO must be provided an opportunity to consider the impact of the new service connected disability on the Veteran's claim. Accordingly, the case is REMANDED for the following action: Arrange for a VA examiner to review the record and determine whether it is at least as likely as not that the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment. His service-connected disabilities include a low back disorder, a right shoulder disorder, left forearm scars, osteophyte formation of the left elbow, and a residual scar/recurrent boil of the left thigh. If the examiner finds that another physical examination is required in order to respond to the inquiry, then one should be provided. Following the above, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs