Citation Nr: 1333646 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-30 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation above 10 percent for peripheral neuropathy of the right lower extremity prior to April 23, 2013. 2. Entitlement to an evaluation above 20 percent for peripheral neuropathy of the right lower extremity from April 23, 2013. 3. Entitlement to an evaluation above 10 percent for peripheral neuropathy of the left lower extremity prior to April 23, 2013. 4. Entitlement to an evaluation above 20 percent for peripheral neuropathy of the left lower extremity from April 23, 2013. 5. Entitlement to a compensable evaluation for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from December 1963 to December 1967 and from June 1968 to January 1974. His service records indicate that he served on three separate tours of duty in the Republic of Vietnam and that his military decorations include the Combat Action Ribbon, the Purple Heart Medal, and the Presidential Unit Citation. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim for increased evaluations for bilateral peripheral neuropathy of his lower extremities (each rated 10 percent disabling at the time of the March 2008 rating decision) and a compensable evaluation for hypertension. (The current appeal also included several other issues in controversy, but these appeals have since been either expressly withdrawn by the appellant or have been subsequently allowed with the maximum benefit awarded, the full grant of the benefit sought thereby ending the appeal of the specific claim at issue.) In October 2012, the Veteran, accompanied by his representative, presented evidence and oral testimony in support of his appeal before the undersigned Veterans Law Judge sitting at the RO. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration. In February 2013, the Board remanded this case to the RO via the Appeal Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. Following this development, a July 2013 rating decision, inter alia, assigned a 20 percent evaluation for peripheral neuropathy to each of the Veteran's lower extremities, effective April 23, 2013. Thereafter, the case was returned to the Board in August 2013. As the increased ratings assigned for peripheral neuropathy of the lower extremities do not represent the maximum benefit provided by the applicable rating schedule, the case on appeal remains in controversy, and the Veteran now continues his appeal. AB, Appellant, v. Brown, 6 Vet. App. 35 (1993). For the reasons discussed in the REMAND portion of the decision below, the issue of entitlement to a compensable evaluation for hypertension is REMANDED to the RO/AMC. The Veteran and his representative will be notified by VA if any further action is required on their part. FINDINGS OF FACT 1. For the period prior to April 23, 2013, peripheral neuropathy of the Veteran's right and left lower extremities was manifested by subjective complaints of moderate intermittent pain and mild numbness, paresthesias and dysesthesias (with bilateral loss of sensation in each foot), with objective evidence of decreased light touch sensation, absent knee and ankle reflexes, absent vibration sensation, coldness of the extremities to touch, and loss of hair, but with no objective evidence of paralysis, which produces impairment that equates to not more than mild incomplete paralysis of the right and left sciatic nerve. 2. For the period after April 23, 2013, peripheral neuropathy of the Veteran's right and left lower extremities has been manifested by subjective complaints of mild but constant pain (which may be excruciating at times), moderate intermittent pain, moderate numbness, and mild paresthesias and dysesthesias (with bilateral loss of sensation in each foot), which causes him to walk with an unsteady gait and accordingly interferes with ability to ambulate, with objective evidence of decreased light touch sensation, and loss of hair, with objective evidence of moderate incomplete sciatic paralysis and mild incomplete femoral nerve paralysis; these combined symptoms produce impairment that equates to not more than moderate incomplete paralysis of the right and left sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an evaluation above 10 percent for peripheral neuropathy of the right lower extremity prior to April 23, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 2. The criteria for an evaluation above 20 percent for peripheral neuropathy of the right lower extremity from April 23, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for an evaluation above 10 percent for peripheral neuropathy of the left lower extremity prior to April 23, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 4. The criteria for an evaluation above 20 percent for peripheral neuropathy of the left lower extremity from April 23, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to individually assigned evaluations above 10 percent for peripheral neuropathy of the right and left lower extremities prior to April 23, 2013, and individually assigned evaluations above 20 percent for peripheral neuropathy of the right and left lower extremities from April 23, 2013. With respect to the claims decided herein, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The current claims that will be adjudicated on the merits were filed on July 31, 2007. A VCAA notice letter was dispatched to the Veteran in August 2007, prior to the March 2008 rating decision now on appeal. This letter addressed the issues on appeal and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As fully compliant notice preceded the initial adjudication of the Veteran's claims adjudicated herein, there is no timing of notice defect. VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the increased rating claims adjudicated herein. As these stem from July 31, 2007, when the Veteran filed his claim for increased ratings for the service-connected disabilities at issue, the relevant time period and evidence that must be addressed in the adjudication of the claim encompasses the period from July 31, 2006 to the present, in order to allow the Board to consider the applicability of a staged rating. See 38 C.F.R. § 3.400(o)(2) (2013); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this regard, the Board observes that private and VA clinical records for the period spanning 2006 to 2013, including reports of VA medical examinations of the neurological disability at issue, dated in December 2011 and April 2013, have been obtained and associated with the claims file, or are otherwise viewable on the VBMS and Virtual VA electronic information databases. The Board has reviewed the aforementioned examination reports and notes that the Veteran's claims file was reviewed by the VA clinicians who performed them, and that these examiners provided adequate discussion of their clinical observations and rationales to support their individual findings and conclusions within the context of the Veteran's pertinent clinical history as contained within his claims file. The examinations are therefore deemed adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was provided with the opportunity to present oral testimony in support of his claims before the undersigned Veterans Law Judge at the October 2012 hearing. At the time of the hearing, he was accompanied by his representative and had the benefit of his advice and counsel. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the October 2012 hearing, the presiding Veterans Law Judge's questions and the oral testimony of the Veteran focused on the elements necessary to substantiate, inter alia, the Veteran's claims of entitlement to increased ratings for the peripheral neuropathy of his lower extremities. See transcript of October 24, 2012 Board hearing. Thus, the Board finds that the Veterans Law Judge presiding over the October 2012 hearing has substantially fulfilled her obligations as required under 38 C.F.R. § 3.103(c)(2). Bryant, supra. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2013). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2013). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Based on the July 31, 2007 date of VA's receipt of the Veteran's application to reopen his claims for a rating increase, the relevant temporal focus for the increased rating claims for bilateral lower extremity neuropathy is from July 31, 2006. See 38 C.F.R. § 3.400 (2013). The Veteran is service connected for Type II diabetes mellitus and is in receipt of separate compensable ratings for peripheral neuropathy of his lower extremities as a secondary complication of diabetes. Entitlement to VA compensation for peripheral neuropathy of his lower extremities was in effect since October 2004, by rating decision dated in April 2005. Each lower extremity is rated for impairment due to paralysis of the sciatic nerve under the criteria contained in 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013), which provides for the following evaluations: Complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement is possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost, rate as 80 percent disabling. Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, rate as 60 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve, rate as 40 percent disabling. Moderate incomplete paralysis of the sciatic nerve, rate as 20 percent disabling. Mild incomplete paralysis of the sciatic nerve, rate as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). Pertinent evidence dated prior to April 23, 2013, includes VA and private outpatient treatment records dated from 2006 - 2012, which show a diagnosis of peripheral neuropathy of the Veteran's lower extremities manifested by subjective complaints of numbness and loss of sensation in each foot. At his October 2012 hearing before the Board, the Veteran testified, in pertinent part, that he had such diminished or absent sensation in his lower extremities that he needed to constantly check his legs and feet for sores, wounds, cuts, or topical skin injuries, lest they escape detection and treatment and thus become infected. He described his neurological symptoms as being manifest by a sensation of pinpricks in his toes, with the toes of his right foot being more adversely affected. By way of the Veteran's vocational history, the medical and testimonial evidence shows that his post-service career was in law enforcement, where he was employed as a police officer in the police department of a community college and eventually rose to the rank of police chief. Thereafter, he entered a second career as an administrator at an international airport, retiring from his career in 2009 in an administrative office-holding position. In his retirement the Veteran was now engaged in the hobby of tending and caring for horses. Clinical evidence dated prior to April 23, 2013 includes outpatient treatment records and the report of a December 2011 VA neurological examination. These collectively show, in pertinent part, that at the time the Veteran's peripheral neuropathy of his right and left lower extremities was manifested by subjective complaints of moderate intermittent pain and mild numbness, paresthesias and dysesthesias (with bilateral loss of sensation in each foot), with objective evidence of decreased light touch sensation, absent knee and ankle reflexes, absent vibration sensation, coldness of the extremities to touch, and loss of hair, but with no objective evidence of paralysis. No muscle atrophy of either lower extremity was detected on examination. The December 2011 VA examination report shows that the Veteran's service-connected diabetes mellitus and its related complications (including bilateral lower extremity peripheral neuropathy) had no impact on the Veteran's occupational capacity. In consideration of the foregoing evidence, the Board concludes that the overall disability picture presented equates to not more than mild incomplete paralysis of the right and left sciatic nerve, applying the criteria of Diagnostic Code 8520 for a 10 percent rating. While there is diminished sensation in each lower extremity and foot, the Veteran remained capable of ambulation and no muscle atrophy was noted on examination. No significant impact on his occupational capacity due solely to his diabetes and related neuropathic complications were demonstrated. As such, the constellation of disabling symptomatology associated with peripheral neuropathy of each limb does not more closely approximate the criteria for a 20 percent evaluation under Diagnostic Code 8520 for moderate incomplete paralysis of the right and left sciatic nerve. The claims for rating increases above 10 percent for peripheral neuropathy of the right lower extremity prior to April 23, 2013, and peripheral neuropathy of the left lower extremity prior to April 23, 2013, are therefore denied. Clinical evidence dated as of April 23, 2013 includes outpatient treatment records and the report of a VA neurological examination conducted on April 23, 2013. These collectively show, in pertinent part, that as of that time the Veteran's peripheral neuropathy of his right and left lower extremities is manifested by subjective complaints of mild but constant pain (which may be excruciating at times), moderate intermittent pain, moderate numbness, and mild paresthesias and dysesthesias (with bilateral loss of sensation in each foot), with objective evidence of decreased light touch sensation, and loss of hair, with objective evidence of moderate incomplete sciatic paralysis and mild incomplete femoral nerve paralysis. The Veteran indicated that he was now incapable of even feeling needles being pricked into his feet by clinicians. No muscle atrophy was detected on clinical examination. These symptoms caused him to walk with an unsteady gait and accordingly interfered with ability to ambulate and negotiate uneven surfaces. The impact of these symptoms on his occupational capacity was that he would have difficulty working in a job that required walking, but that he remained suited for sedentary work so long as frequent body position changes were allowed. In consideration of the foregoing evidence, the Board concludes that the overall disability picture presented equates to not more than moderate incomplete paralysis of the right and left sciatic nerve, applying the criteria of Diagnostic Code 8520. The 20 percent evaluation presently assigned to each lower extremity for peripheral neuropathy therefore adequately compensates the Veteran for his present state of impairment. The Board does not find that the constellation of disabling symptomatology associated with peripheral neuropathy of each limb does not more closely approximate the criteria for a 40 percent evaluation under Diagnostic Code 8520 for moderately severe incomplete paralysis of the right and left sciatic nerve. As discussed, there is no objective evidence of muscle atrophy or significantly impaired ability to ambulate that more closely approximates the criteria for a 40 percent evaluation. The Board finds it noteworthy that the Veteran remains able to engage in his retirement hobby of maintaining horses and finds that the fact that the Veteran remains able to adequately interact on a physical basis with such a dynamic animal tends to show that his level of neurologic impairment of his lower extremities is not moderately severe. The claims for rating increases above 20 percent for peripheral neuropathy of the right lower extremity from April 23, 2013, and peripheral neuropathy of the left lower extremity from April 23, 2013, are therefore denied. Because the evidence in this case is not approximately balanced with respect to the merits of the claims on appeal, the benefit-of-the-doubt doctrine does not apply, and the increase rating claims discussed above must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A rating in excess of the assigned schedular evaluations for the Veteran's service-connected disabilities addressed herein on the merits may be granted when it is demonstrated that the particular disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 277 (1995). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that there is no evidence that the Veteran's service-connected bilateral peripheral neuropathy of his lower extremities have presented such an unusual or exceptional disability picture at any time between July 31, 2006 to the present, so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b) (2013). Specifically, the evidence of record does not indicate the Veteran is frequently hospitalized for this service-connected neurological disability. Furthermore, although the Veteran is limited from engaging in work that involves walking due to his impaired capacity to ambulate, the clinical and testimonial evidence does not indicate marked interference with employment as he retains his ability to work in a sedentary capacity, as noted in the April 2013 VA examination. In fact, even in his impaired state he remains capable of sufficient physical activity to be able to engage in his hobby of caring for horses. The criteria of the applicable rating schedule are therefore deemed to adequately contemplate the Veteran's present level of impairment due to the neurological disability at issue. As such, the Board cannot concede that the peripheral neuropathy of the Veteran's lower extremities causes marked interference with his employment capacity. Higher ratings are available for the Veteran's disability, but for the reasons described in the above decision, higher ratings were denied in this case. The clinical evidence and medical opinion fails to show that the disability picture created by bilateral peripheral neuropathy of his lower extremities is of an exceptional or unusual nature. Having reviewed the record with these mandates in mind, the Board finds that the schedular ratings presently assigned adequately reflects the state of its impairment for the periods to which they are applied, and that there is no evidentiary basis for referral of the case for extraschedular consideration with regard to this issue. The Board notes that the Veteran is presently service connected for multiple disabilities involving his psychiatric, orthopedic, cardiovascular, nervous, endocrine, dermatologic, and genitourinary systems, which together produce a combined 100 percent schedular rating, per 38 C.F.R. § 4.25 (2013). In addition to being assigned a total schedular rating for his service-connected disabilities, he is also in receipt of special monthly compensation under 38 U.S.C.A. § 1114(k) and (s) (West 2002). Therefore, to the extent that the record may raise a claim for a total rating for individual unemployability due to service-connected disabilities (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), any further discussion of entitlement to a TDIU is rendered moot as the appellant is currently receiving the maximum 100 percent rating for his service-connected disabilities. ORDER An increased evaluation above 10 percent for peripheral neuropathy of the right lower extremity prior to April 23, 2013 is denied. An increased evaluation above 20 percent for peripheral neuropathy of the right lower extremity from April 23, 2013 is denied. An increased evaluation above 10 percent for peripheral neuropathy of the left lower extremity prior to April 23, 2013 is denied. An increased evaluation above 20 percent for peripheral neuropathy of the left lower extremity from April 23, 2013 is denied. REMAND With regard to remaining issue on appeal, i.e., entitlement to a compensable evaluation for hypertension, in February 2013 the Board, inter alia, had remanded this issue to the RO/AMC for additional evidentiary development, including obtaining any outstanding pertinent clinical records and providing the Veteran with a VA examination to assess the severity of his hypertension. After this development was undertaken, the February 2013 Board remand instructed the agency of original jurisdiction to readjudicate the increased rating claim for hypertension and thereafter return the case to the Board for appellate adjudication if the Veteran was not granted the maximum benefit contemplated in the applicable rating schedule. A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. Stegall v. West, 11 Vet. App. 268 (1998). The post-remand development by the agency of original jurisdiction must be in at least substantial compliance with the Board's remand instructions. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) The Board has reviewed the Veteran's claims file and notes that private medical records dated January 2011 to February 2013 relating to the Veteran's treatment for cardiovascular disease (including hypertension) were obtained and associated with the claims file, and that the Veteran was provided with a VA examination to clinically evaluate the severity of his service-connected hypertension in April 2013. Thereafter, the case was returned to the Board in August 2013. However, an actual readjudication of the Veteran's claim for a compensable evaluation for hypertension in the context of the new evidence obtained on remand was never conducted by the agency of original jurisdiction. In this regard, the Board has reviewed the Veteran's claims file and all records relating to his claim as they appear in the VBMS and Virtual VA electronic databases, which shows that a rating decision and/or a supplemental statement of the case addressing the issue of entitlement to a compensable evaluation for hypertension in the context of the evidence added to the record since the latest prior supplemental statement of the case in April 2012 was never rendered. The Board further notes that neither the Veteran nor his representative have waived his right to have the aforementioned evidence considered in the first instance by the agency of original jurisdiction. Therefore, in view of the foregoing discussion, the issue of entitlement to a compensable evaluation for hypertension must be remanded to the agency of original jurisdiction for consideration of the relevant evidence obtained, followed by a readjudication of this claim on the merits. This remand is to prevent prejudice of the Veteran's claim and to ensure his right to appellate due process. 38 C.F.R. § 19.31 (West 2002); Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the issue of entitlement to a compensable evaluation for hypertension is REMANDED to the RO/AMC for the following action: The agency of original jurisdiction shall readjudicate the Veteran's claim of entitlement to a compensable evaluation for hypertension. If the maximum benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and provided with sufficient opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Board intimates no opinion as to the outcome in this case by the action taken herein. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs