Citation Nr: 1333029	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  12-35 974	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.   

2.  Entitlement to service connection for tinnitus.   

3.  Entitlement to service connection for a lung disorder. 

4.  Entitlement to service connection for allergies. 

5.  Entitlement to an initial evaluation beyond 10 percent for right shoulder sprain with degenerative osteoarthritis.  


REPRESENTATION

Appellant represented by:	Daniel G. Curry, Attorney


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from January 1951 to November 1953.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

In his December 2012 substantive appeal, the Veteran indicated that he wished to have a Board hearing at the RO.  In an August 2013 statement the Veteran's representative withdrew that request.  

While the RO adjudicated the claim regarding tinnitus as for the right ear only, the record shows that the Veteran has reported bilateral tinnitus.  Thus the Board has reflected this issue on the first page of this decision.  

The issues of entitlement to service connection for a lung disorder, entitlement to service connection for allergies, and entitlement to an initial evaluation beyond 10 percent for right shoulder sprain with degenerative osteoarthritis are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)  (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1.  The Veteran has a current noise-induced hearing loss "disability" as defined by VA regulation under section 3.385.

2.  The current hearing loss disability is at least as likely the result of noise exposure in service as it is the result of some other cause or factor.  

3.  Current tinnitus is at least as likely the result of service-connected noise exposure in service as it is the result of some other cause or factor. 


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.385 (2013).  

2.  Resolving reasonable doubt in the favor of the Veteran, the criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  In this case, the Board is granting in full the benefits sought on appeal as to the issues decided below.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.  

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013).

Organic diseases of the nervous system are included among the diseases listed as chronic diseases under the law.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a).  VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system.  See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995; but see Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013)(noting in a claim for service connection for bilateral hearing loss that the Veteran "seeks compensation for a condition that is not listed as a chronic disease in [section] 3.309(a)). 

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id. 

If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013).

For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection.  38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent."  38 C.F.R. § 3.385.  The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service.  See Hensley, 5 Vet. App. at 159.  When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service.  Id. at 160.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  See Gilbert, 1 Vet. App. at 54.  

In order for service connection to be granted under section 3.303(a), there must be a link or nexus between a current hearing loss "disability" as defined under section 3.385 and an injury or disease in service. 38 C.F.R. § 3.303(a), (d).  With regard to current hearing loss, audiometric testing on an August 2011 VA Audio examination showed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
20
50
65
70
LEFT
25
25
40
65
60

Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 84 percent in the left ear.  Bilateral hearing loss is also show in a March 2013 letter from a private examiner regarding a January 2013 examination. 

As to tinnitus, a VA examiner has diagnosed the disorder in August 2011 and a private examiner has also diagnosed the disorder in a March 2013 statement regarding a January 2013 examination.  

Based on these findings, the Board concludes that the Veteran currently has a hearing loss disability as defined by VA regulation for the purpose of entitlement to service connection.  38 C.F.R. § 3.385.  He also has a current diagnosis of tinnitus.  Therefore, the remaining question in this case is whether those current disabilities had their onset in service or are otherwise the result of a disease or injury incurred in service.  

The Veteran alleges that the injury he sustained to his ears in service which has resulted in his current hearing loss and tinnitus was acoustic trauma as a result of exposure to loud noise because his duty in service required him to work in a flight kitchen near a runway and having planes fly low overhead while he was sleeping in his quarters.  His DD 214 shows he served in the Air Force in the food service squadron.  Accordingly, based on this evidence, the Board concludes that the Veteran was exposed to loud noise in service, and the remaining question in the case is whether there is a link between his current hearing loss or tinnitus and noise exposure in service.

With regard to this question, the evidence is conflicting.  In August 2011, the Veteran was examined by VA.  The examiner stated that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service.  In this regard, the examiner indicated that the Veteran's exposure was limited to working in a flight kitchen near a runway for approximately eight months and that pilots would fly near his sleeping and working quarters.  It was noted that the status of his hearing in service was not validated by appropriate measures of hearing and that his post military noise exposure were not considered excessive.  The examiner acknowledged the current hearing loss and indicated that if this were the result of exposure to aircraft he more likely than not would have identified hearing loss at discharge, and he did not.  It was also noted that the claimed impairment from acoustic trauma would have made it difficult to seek employment without the use of amplification.  It was opined that more likely the current hearing impairment is the result of hearing loss from the effects of aging.  As to tinnitus, the examiner indicated that the disorder is at least as likely as not a symptom of the hearing loss and not caused by military noise exposure.  It was noted that the discharge examination did not indicate any cochlear damage and his claims file did not show complaints of tinnitus.  

On the other hand, a private examiner stated that she saw the Veteran in January 2013 for a comprehensive hearing evaluation.  The examiner stated that it was her professional opinion that the current hearing loss and tinnitus were due to the Veteran's exposure to air craft noise during his military service.  The examiner indicated that she reviewed the claims file including the service treatment records and VA records.  The Veteran's history was noted.  The examiner stated that there was no history of occupational or recreational noise exposure.  The Veteran's exposure to aircraft noise was noted as significant and daily for more than six months and that he did not have ear protection.  His service entrance and separation examination reports were noted to show 15/15 bilaterally.  The examiner noted that the Veteran reported having some hearing loss and tinnitus ever since service.  She reviewed the 2011 VA examination report.  On audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
50
60
65
75
LEFT
45
50
55
70
70

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 88 percent in the left ear.  It was noted that the Veteran has described having constant tinnitus in both ears.  The examiner stated that it was her professional opinion that the current hearing loss and tinnitus are at least as likely as not causally related to service and exposure to noise during work and residence near a landing strip and that it is not likely that any subsequent occupational or recreational noise caused the hearing loss.  It was noted that the inservice testing did not change her opinion and that she had treated hundreds of people who have had hearing loss and who have postponed treatment.  The examiner stated that she strongly disagreed with the VA examiner because she saw no basis the assumption that the Veteran's noise exposure in service would not be significant to damage his ears and that the problem was that noised induced hearing loss is progressive.  It was noted that the Veteran has stated that he has always noticed some hearing loss and tinnitus since military service and this indicates that the military noise exposure is the likely origin of his hearing problems and that the natural aging process while surely present, is not the major cause of the current hearing loss.  

In reviewing the evidence of record, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise as to whether the Veteran's current bilateral hearing loss and his tinnitus are etiologically related to an in-service injury.  The Board finds the evidence, which includes the Veteran's credible assertions, a VA examination report and a private report, provides a reasonable basis to award service connection. 

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993).  Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner.  See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

The Board is aware that a medical opinion cannot be rejected solely because it is based upon history supplied by the claimant.  See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005).  The Court of Appeals for Veterans Claims also stated that "most of the probative value of a medical opinion comes from its reasoning", and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). 

Therefore, after weighing all the evidence, the Board finds that the VA opinion and the private opinion offered are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position.  See Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995).  Both opinions offered have probative value.  Both examiners reviewed the Veteran's records.  The Board does not find any stated opinion to be substantially more persuasive than that provided by any other examiner.  

It is noted that the VA examiner who offered a negative opinion based finding in part on the absence of a specific finding of hearing loss in service.  However, 38 C.F.R. § 3.303(d) provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d).  Essentially the lack of specific documentation in service in and of itself is not fatal to a service connection claim.  

The law does not require evidence of an inservice hearing disability that meets the standard outlined for a hearing impairment disability for VA purposes.  38 C.F.R. § 3.385.  There need only be a basis for attributing the current disorder to an injury in service.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  Additionally, VA laws and regulations do not preclude service connection for a post-service disability where a disability was not shown at the time of separation from service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  When the Veteran does not meet the regulatory requirements for a disability at separation, service connection can still be established if medical evidence shows that it is actually due to incidents during service.  38 C.F.R. § 3.303(d); Hensley v. Brown, 5 Vet. App. 155 (1993).  

After weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise with regard to whether the Veteran has bilateral hearing loss and tinnitus that either began in or is otherwise related to his military service.  For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his claimed disability began in or is otherwise related to service.  See 38 U.S.C.A. § 5107(b). The Board finds that standard has been met in this case.  In this context, the Board notes that the Veteran has reported having consistent symptomatology since service.  See Charles v. Principi, 16 Vet. App. 374 75 (2002).  His reports are both competent and highly probative.  In sum, the Board is satisfied that the criteria for service connection have been met and service connection is established for bilateral hearing loss.  In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence.  See Evans v. West, 12 Vet. App. 22, 30 (1998).  

Given the two opinions discussed above, the Board concludes that the Veteran's current noise-induced sensorineural hearing loss and tinnitus are as least as likely the result of noise exposure in service as they are the result of some other factor or cause including post-service noise exposure.  While the VA examiner found the tinnitus to be a symptom of hearing loss, the Boards finds that direct service connection is supported by the record in the form of the private examiner's report.  Accordingly, there is probative medical evidence of record that links the Veteran's current bilateral hearing loss disability and tinnitus to the Veteran's noise exposure in service.  Therefore, the Board will grant the benefit of the doubt in favor of the Veteran in this regard and grant direct service connection for bilateral hearing loss and tinnitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.
,

REMAND

Reasons for Remand: to obtain private medical records, updated VA records and a VA examination. 

The Veteran is seeking a higher initial rating for his service-connected right shoulder disorder.  As was pointed out by the Veteran's attorney in his August 2013 statement, when the Veteran was examined by VA in August 2011, he indicated that had been seen by a private chiropractor for his right shoulder complaints.  The RO has not attempted to obtain those records.  The Veteran is claiming service connection for a lung disorder and allergies.  He has indicated that he had received treatment from private examiners, Dr. Michalski and Dr. Ritter.  While the RO attempted to contact Dr. Michalski, the Board notes that the request sent to him misspelled his name and did not include his complete address (the suite number was omitted).  No attempt has been made to obtain records from Dr. Ritter.  The Veteran's representative has requested that these records be obtained.  

When VA is put on notice of the existence of private medical records which may be pertinent to the claim, VA must attempt to obtain those records before proceeding with the appeal.  See 38 C.F.R. § 3.159(c)(1); See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  

The representative has requested that the Veteran undergo a VA respiratory examination regarding his lung complaints and allergies.  It was pointed out that the Veteran was treated in service for bronchitis and was treated with antibiotics.  It was noted that his October 2010 CVS prescription form shows he has been prescribed a combivent inhaler for COPD.  An examination with a nexus opinion is requested.  

In McClendon v. Nicholson, 20 Vet App. 79 (2006), the Court held that, in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81.  

Additionally, the Veteran has reported having treatment from VA.  The most recent VA treatment records in the Virtual VA file are dated in November 2012.  While the case is in remand status, the RO must ensure that updated VA records are associated with the file. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO must ask the Veteran to provide an complete information identifying all private providers of treatment and/or evaluation he has received for his lung disorder, allergies, and right shoulder disorder since separation from service(i.e., a chronological listing with names and locations of all providers and dates of treatment/evaluation), specifically including (1) the complete records from Dr. Michalski at his full address (2) all records from his chiropractor (3) the complete records of Dr. Ritter; and (5) records of any other treatment he received for these disorders since separation from service.  The AMC/RO must inform the Veteran it is his responsibility to provide properly executed releases to enable the AMC/RO to secure the records of any private providers identified. 

If the Veteran responds with complete information and releases, the AMC/RO must secure for the record copies of complete clinical records of all treatment identified.  If he responds with incomplete information, the AMC/RO should follow-up, advise him of what more is needed, and afford him the opportunity to supplement his submissions.  

2.  Obtain and associate with the file all VA treatment records dated from November 2012 to the present.  

3.  Schedule the Veteran for a VA respiratory examination to determine the nature and etiology of all respiratory disorders.  The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review.

The examiner should offer an opinion as to whether it is at least as likely as not that any currently diagnosed disorder is related to his military service.  

A complete rationale for all opinions must be provided.  If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  

Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 

4.  After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand.  If the report is deficient in any manner, the RO must implement corrective procedures at once. 

4.  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 thereto.  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).




______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs