Citation Nr: 1331484 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 08-13 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased disability rating for recurrent major depression, also diagnosed as schizoaffective disorder and paranoid schizophrenia, currently rated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to April 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) that denied a rating in excess of 50 percent for the service-connected psychiatric disorder. In the rating decision, the RO also denied reopening of a previously denied claim for service connection for chronic fatigue syndrome (CFS) or somatoform disorder, and denied entitlement to service connection for posttraumatic stress disorder (PTSD) and entitlement to TDIU. The Veteran submitted a notice of disagreement (NOD) in April 2007 with respect to the decision not reopen his claim and the denial of service connection for CFS/somatoform disorder, but did not perfect his appeal of those issues following the issuance of a statement of the case in April 2008. Therefore, they are not before the Board. The Veteran's NOD also did not address the issue of TDIU. However, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in claims for higher ratings when the issue of unemployability is raised by the record. As evidence received into the record subsequent to the March 2007 rating decision reflects evidence of unemployability (e.g. the September 2011 Appellant Brief and the November 2011 VA examination report), a claim for a TDIU is raised. This issue has therefore been included on the title page of this decision. In October 2011, the Board remanded this claim for additional development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran's recurrent major depression, also diagnosed as schizoaffective disorder and paranoid schizophrenia, was manifested by occupational and social impairment with deficiencies in most areas; but without total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in of 70 percent, but no higher, for are met for recurrent major depression, also diagnosed as schizoaffective disorder and paranoid schizophrenia. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126-4.130, Diagnostic Code 9400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (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); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. VA has satisfied its duty to notify under the VCAA. A letter dated in June 2006, sent prior to the unfavorable decision, advised the Veteran of the evidence and information necessary to substantiate his claim for an increased rating, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised him of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, and records of his Social Security Administration (SSA) disability determination (and the records considered in that determination), have been obtained. The Veteran has not identified any additional records that have not been requested or obtained. The Veteran was afforded VA examinations in October 2006 and November 2011. The Board finds that the examination reports are adequate for claim adjudication because they reflect claim file review by the examiners, as well as clinical interviews and evaluations that address the relevant rating criteria. The Veteran and his representative have not alleged that the examinations are inadequate for rating purposes; nor have they specifically alleged that his disability has worsened in severity since the last examination. Accordingly, a new VA examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). VA has fully satisfied the duty to assist. 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); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's disability is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9400, which pertains to generalized anxiety disorder. Under the General Rating Formula, a 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores that clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (March 31, 1995). A GAF of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See DSM-IV; see 38 C.F.R. § 4.130. A GAF score of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. Statements submitted in July 2006 by the Veteran's wife and a friend includes descriptions of the Veteran's psychiatric symptoms. The Veteran's wife stated the Veteran does not have the ability to effectively deal with people in stressful situations. She stated that it is "extremely difficult living with him since he started getting ill." The Veteran's friend described him as exhibiting aggression, irritability, depression, and chronic fatigue. SSA records show that Veteran has been in receipt of disability benefits for somatoform disorder and personality disorder since 1997. These disorders were determined to be 'severe,' pursuant to the SSA's regulations. At an October 2006 VA examination the Veteran reported a lack of interest in activities, depressed mood, suicidal thoughts, feelings of hopelessness, and impairment of his sleep, energy levels, and concentration. He also reported two remote prior suicide attempts and past hospitalizations; the most recent hospitalization being in 1995. The Veteran reported that he continued to be depressed and miserable, but he denied any severe depression for about one year. He indicated that when he is stressed out he has significant anger problems, but he is able to control himself and refrain from violence. The Veteran also stated he suffered from severe difficulties concentrating and could not read or concentrate enough to attend school. He reported that he tries not to drive because he gets too distracted and irritable. He noted intermittent panic attacks (i.e. less than once a week) and that he becomes anxious when he feels trapped. He complained of suspiciousness only when he is depressed or very stressed. He also complained of mild short-term memory loss such as forgetting names or recent events. With respect to his social functioning, the Veteran reported that he was married twice and had been married to his current wife for almost 20 years. He had his wife were separated for a period from August 2000 to August 2002. He also reported that he had four children, two of which still lived at home. With respect to his occupational functioning, the Veteran also reported difficulty working due to irritability and anger outbursts, and noted that he had "walked off the job" many times. He was currently working for a friend doing window cleaning. This was a seasonal job consisting of approximately 15 hours a week during the summer and springs. He reported that he had difficulties with this job as he made mistakes, worked too slowly, and was sensitive to stress. Upon objective mental examination, the Veteran was alert and oriented with appropriate appearance, hygiene, and behavior. His mood was mildly depressed, with reactive affect. Communication and speech were normal. No delusions and hallucinations were noted. Thought processes, judgment, and abstract thinking were intact. He denied homicidal or suicidal ideation. The examiner noted that though chronically depressed, the Veteran's periods of severe depression were intermittent. The examiner also noted that the Veteran was very sensitive to stress and decompensates easily, leading to increased symptoms of depression and increased somatic symptoms. The examiner further indicated that while the Veteran had a history of delusions and hallucinations, thought to be due to his substance abuse, there was no evidence of delusions or hallucinations during the examination. The examiner provided diagnoses of undifferentiated somatoform disorder with a GAF score of 50 and major depression, recurrent with a GAF score of 55. The examiner stated the Veteran had no difficulty performing activities of daily living. He did, however, have difficulty establishing and maintaining effective work and social relationships due to anger outbursts. He had no difficult understanding complex commands and did not appear to pose any threat of persistent danger or injury to himself or others. At a VA examination in November 2011 the Veteran's symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and persistent delusions or hallucinations. He also reported having difficulty concentrating, feelings of worthlessness and hopelessness, phobias, chronic fatigue, apathy, anhedonia, irritability, social withdrawal, and lack of responsiveness to positive stimuli. With respect to his social functioning, the Veteran reported that he had been married to his current wife for 25 years. He noted that the relationship with his wife is better when he "shuts his mouth and let it go." He reported that he has to work very hard to restrain himself as his wife "will not let up." He indicated that he threw a bowl at her but it did not hit her. With respect to his occupational functioning, the Veteran reported that he worked as a window cleaner on a part-time basis. He indicated that his friend helps with this job and has to correct the Veteran's work a lot. On objective mental examination, the Veteran was described as polite and cooperative. He was casually dressed, with adequate grooming. He was oriented to person, place and situation. His affect was blunted and his mood was depressed. He exhibited mild psychomotor retardation and his speech was slow at times. Thought processes were logical and goal-directed. The examiner noted the Veteran exhibited delusional beliefs and experiences auditory and occasionally olfactory hallucinations. The Veteran reported passive suicidal thoughts with no plan or intention because he did not want to hurt his family. He also admitted to some homicidal fantasies without plans or intention to hurt anyone. He showed slight to moderate problems with attention. Insight and judgment were described as fair. The examiner determined that based on the objective test results the Veteran had occupational and social impairment with deficiencies in most areas. A diagnosis of schizoaffective disorder, depressive type was provided and a GAF score of 47 was assigned. The examiner also commented that the Veteran has serious symptoms, such as severe depression, delusional beliefs, and auditory hallucinations. He also has serious impairment in social and occupational functioning as he only has one friend, poor relations with his wife, and is chronically unemployed. The examiner noted that, with respect to employment, he has some part-time work because his friend wants to help him, but if it were a regular job, he would probably have been fired a long time ago. VA medical records dated through July 2012 reflect treatment for the service-connected psychiatric disability. These records reflect findings that are overall consistent with the symptoms and findings shown in the October 2006 and November 2011 VA examination reports. Of note, is a November 2011 mental health record showing that the Veteran's schizoaffective disorder was relatively stable, but with some increase in depression and auditory hallucinations. More recently, a June 2012 mental health note listed the Veteran's current symptoms to include auditory hallucinations, paranoia, passive suicidal thoughts, anergy, avolition, and decreased energy. Based on the medical and lay evidence of record, the Board finds that the Veteran's service-connected psychiatric disability more closely approximates the rating criteria required to assign a 70 percent rating. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Deficiencies in the area of work have been documented throughout the appeal period. The VA examinations and lay testimony show the Veteran has a history of difficulty with keeping employment. The October 2006 examiner noted that he has difficulty establishing and maintaining effective work relationships due to anger outbursts. The November 2011 examiner indicated that the Veteran is chronically unemployed because of his anger outbursts. Deficiencies in the area of work have been documented throughout the appeal period. At the October 2006 examination, the Veteran stated he suffered from severe difficulties concentrating and could not read or concentrate enough to attend school. Deficiencies in the area of family relations have been documented throughout the appeal period. The Veteran has described some difficulty with his wife during his VA examinations, and in lay statements submitted in support of his appeal. His wife indicated in her July 2006 lay statement that it is "extremely difficult living with him since he started getting ill." In addition, the November 2011 VA examiner noted that the Veteran has poor relations with his wife. There also is evidence of deficiencies in the area of mood, thinking and judgment. The lay testimony, the October 2006 and November 2011 VA examination reports, and the VA treatment records reflect that the Veteran has experienced chronic depression and panic, suicidal ideation, delusions and some hallucinations. Additionally, the Veteran has been consistently described as irritable and having "anger outbursts." He indicated in his substantive appeal statement that he had thrown a glass bowl at his wife in April 2008 due to anger. There is, therefore evidence of deficiencies in the area of mood, thinking and judgment. Finally, the Board has considered the Veteran's GAF scores. The Veteran's GAF score of 50-55 in October 2006, and of 47 in November 2011, which indicates moderate to serious symptoms. These scores further support a finding that the Veteran has significant occupational and social impairment due to his service-connected psychiatric disability. As there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood, the criteria for a 70 percent rating are met. The criteria for a 100 percent rating under the General Rating Formula are not met. A 100 percent rating is assigned where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9400. The Board notes that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan the Court upheld the Board's decision noting that the Board had considered all of the Veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan v. Principi, at 444. Applying this analysis to the criteria for the 100 percent rating, it follows that the Veteran would be entitled to that rating if his disability caused total occupational and social impairment, regardless of whether he had some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms were listed or not. In this case, the Veteran has been able to maintain a relationship with his wife throughout the appeal period despite having some difficulty, and despite one period of separation many years ago. He has also been able to maintain his part-time employment as a window washer, and maintain a friendship with the individual who hired him, throughout the appeal period. Furthermore, the Board notes that at no time during the appeal has the Veteran been found to display symptoms of gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or his own name - such that would tend to support a finding that the Veteran's disability has caused total social and occupational impairment. The Board acknowledges that the November 2011 VA examiner noted the existence of persistent delusions and hallucinations. However, based on the review of the Veteran's history and the current examination results, the examiner determined that the totality of the Veteran's psychiatric symptoms, do not rise to the level of total occupational and social impairment. In sum, the Board finds that the evidence of record supports a disability rating of 70 percent, but no higher, for the recurrent major depression, also diagnosed as schizoaffective disorder and paranoid schizophrenia, during the entire appeal period. 38 C.F.R. § 4.7. The evidence is against a finding that the disability meets or more closely approximates a higher rating at any time during the appeal period. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The evidence shows that the Veteran's service-connected psychiatric disability results in symptoms of depression, irritability, social withdrawal; impaired sleep, energy, and concentration; and mild subjective memory loss. Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER For the entire appeal period, a disability rating of 70 percent, but no higher, for recurrent major depression, also diagnosed as schizoaffective disorder and paranoid schizophrenia, is granted, subject to the statutes and regulations governing the payment of VA compensation. REMAND The Veteran contends that he is unable to secure and maintain substantially gainful employment due to his service-connected recurrent major depression, also diagnosed as schizoaffective disorder and paranoid schizophrenia. The Veteran was afforded VA psychiatric examinations in October 2006 and November 2011. Although each examiner indicated that occupational impairment was present due to the Veteran's service-connected psychiatric disability, they did not specifically indicate whether the Veteran is rendered unemployable as a result of his service-connected psychiatric disability. As the record does not otherwise contain sufficient information in this regard, the Board is unable to decide the claim. On remand, the RO must contact the Veteran and ask that he identify any additional, pertinent VA and non-VA treatment records that are outstanding. Such records must then be made accessible to the examiner. See 38 C.F.R. § 3.159(c)(2); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. The Veteran is asked to provide, or authorize VA to obtain, any and all non-duplicative private treatment records pertaining to his claim for TDIU. All efforts to obtain any and all identified records must be fully documented in the claims file. All pertinent VA treatment records from July 2012 to the present must be added to the claim file either physically or electronically through Virtual VA. 2. Notify the Veteran that he may submit statements from himself and others describing the impact of his service-connected psychiatric disability on his ability to work. He should be provided an appropriate amount of time to submit this evidence. 3. After any additional records are associated with the claim file, return the file to the examiner that provided the November 2011 examination, to prepare an addendum to the VA examination report. If that examiner is unavailable, the claim file must be sent to another examiner with appropriate expertise. All indicated tests are to be conducted. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must provide an opinion as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected psychiatric disability renders him unable to secure or follow a substantially gainful occupation. If the examiner opines that the Veteran's service-connected psychiatric disability does not render him unemployable, the examiner must suggest the type or types of employment in which he would be capable of engaging with this disability, given his current skill set and educational background. The examination report must include a complete rationale for all opinions expressed. If the VA examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, this should be indicated in the report, along with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's TDIU claim must be readjudicated. If the claim remains denied, the Veteran and his representative must be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs