Citation Nr: 1334124 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-20 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for residuals of traumatic brain injury (TBI). 2. Entitlement to a rating in excess of 10 percent for irritable bowel syndrome (IBS). 3. Entitlement to an extraschedular rating for a skin disorder. REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 2003 to December 2003, October 2004 to January 2006, and February 2009 to April 2010. His awards and commendations include the Purple Heart medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2008 (skin) and March 2011 (TBI and IBS) rating decisions of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issue of entitlement to service connection for residuals of TBI is addressed in the REMAND portion of the decision below and is REMANDED to the RO. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. The preponderance of the evidence shows that IBS is moderate, manifested by frequent episodes of bowel disturbances with abdominal distress (such as 2-3 bowel movements a day with urgency and diarrhea that lasted 2-3 days and occurred twice per month); but that it is not severe, in that there is not more or less constant abdominal distress. 2. From January 13, 2006, to March 19, 2008, the criteria for a 60 percent rating for the service-connected skin disorder (recurrent nodular Methicillin-resistant Staphylococcus aureus (MRSA) folliculitis) are met on an extraschedular basis; the grant is due to continuing treatment for folliculitis/rash, report of outbreak of skin infections every two to three weeks, and the missing of work (approximately one month and the need to leave early on 20-40 occasions) due to symptoms associated with his skin lesions which are not contemplated in the appropriate DC. 3. As of VA examination conducted on March 20, 2008, and thereafter, the Veteran's skin condition is shown to have significantly decreased in severity. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for IBS have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.7, 4.114, Diagnostic Code (DC) 7319 (2012). 2. The criteria for an extraschedular rating of 60 percent for recurrent nodular MRSA folliculitis are met from January 13, 2006, to March 19, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.20, 4.118, 7899-7806 (2012). 3. As of March 20, 2008, an extraschedular rating for recurrent nodular MRSA folliculitis is not warranted, and the disability rating is thereby reduced to 30 percent pursuant to the appropriate DC. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 4.20, 4.118, 7899-7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in July 2006, February 2007, and February 2010) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) and informing the Veteran about the information and evidence he was expected to provide. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examination reports, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the 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, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the February 2007 and February 2010 letters mentioned above. The Veteran was afforded an IBS examination in February 2011 and a skin evaluation was conducted in October 2012 with an administrative review regarding application of extraschedular evaluation in February 2013. The Board's review of the examination reports reflects that these examinations were thorough in nature and adequate for the purposes of deciding the current claims regarding IBS and a skin condition. The report reflects that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the evidence of record. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); and Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Increased Ratings - In General Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 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 (2012). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In order 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 service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein regarding the skin disability, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time, but only if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known to the Court as "staged" ratings. Id. at 126. Entitlement to a rating in excess of 10 percent for IBS. The Veteran appeals the denial of a rating higher than 10 percent disabling for IBS in the March 2011 rating decision. He filed his claim for an increased rating in January 2010. His disability is rated as 10 percent disabling under DC 7319 which provides that a zero percent evaluation is assignable for mild irritable colon syndrome (spastic colitis, mucous colitis, etc.) with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent evaluation is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is assignable for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319 (2012). Post service VA records reflect that the Veteran's IBS has been treated with medication. When examined by VA in February 2011, the Veteran reported that his weight had been stable. His complaints had also been stable in nature and had not changed in years. He denied constipation, but said that he had 2-3 bowel movements per day with associated urgency. He also reported episodic diarrhea which lasted 2-3 days at a time and occurred twice per month. He denied rectal bleeding and used medication (Loperamide) every few days for loose stools. At the time of this exam, he denied having abdominal pain or distress. He noted occasional abdominal cramps in the left upper quadrant, but this was not particularly bothersome to him. On exam, the Veteran appeared well nourished. His abdomen was soft, nontender and nondistended with no hepatosplenomegaly. His abdomen was nontender to palpation and without masses. Digital rectal exam noted normal anal sphincter tone with smooth rectal walls. Analysis Based on the evidence presented, the Board finds that the preponderance of the evidence is against a higher rating for IBS. In this regard, severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, is not shown by the record. The Veteran has been found to have 2-3 bowel movements per day with some urgency, occasional diarrhea, and loose stools for which he takes medication. His symptoms are mild and are not constant. Rather, the evidence shows that the Veteran is able to control his symptoms with medication that he continues to have bowel movements several times per day. Furthermore, constipation is not indicated. The record demonstrates that the Veteran's symptoms, while troublesome, are frequent but are not more or less constant. The Board notes that the Veteran is competent to report bowel symptoms and the frequency of his bowel movements. The Board finds that even though he has presented a credible report in this regard, neither the lay nor medical evidence demonstrates that the criteria for a 30 percent rating have been met, i.e. severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, and more or less constant abdominal distress. While the Veteran is competent to report that his disability feels worse, the more probative evidence consists of that prepared by neutral skilled professionals and the specifics of the history and symptoms related by the Veteran, and such evidence fails to demonstrate that the criteria for the next higher evaluation have been met for any period at issue in this appeal. Accordingly, a rating in excess of 10 percent is not warranted. In sum, the Veteran's IBS symptoms are contemplated by the current 10 percent evaluation and for the full pendency of the Veteran's claim do not more nearly approximate the criteria for the higher 30 percent rating. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert, supra. Accordingly, the appeal is denied. The Board has also considered referral for an extraschedular rating. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the record reflects that the manifestations of the disability are contemplated by the schedular criteria for IBS. The schedular criteria for IBS take into account the Veteran's abdominal distress and diarrhea, and the fact that he has frequent symptoms. See 38 C.F.R. § 4.114, DC 7319 (2012). As a result, there is no reason to believe that the average industrial impairment from the disability would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. Entitlement to an extraschedular rating for a skin disorder. As argued by the Veteran's representative, (e.g. see his April 2013 brief), when the Veteran has a skin rash outbreak, the lesions can be as big as softballs. The Veteran is unable to wear pants, much less drive or even ambulate, inherently making it impossible for him to work. As the most recent exam showed that the Veteran experiences outbreaks at a frequency of one per month, it is argued that work is often missed. As pointed out, in exceptional cases, where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). As noted above in Thun, supra, there is a three step process that is for consideration. The Board's June 2010 decision denied the Veteran's claim of entitlement to an initial schedular rating higher than 30 percent for his skin disorder, and the Court's November 2011 memorandum decision AFFIRMED that finding. Therefore, in this decision the Board need only address whether the Veteran is entitled to additional compensation for this disability on an extraschedular basis under the alternative provisions of 38 C.F.R. § 3.321(b)(1) (2012). In the Court's memorandum decision it was noted that the Board had failed to adequately discuss how the Veteran's skin disorder is reasonably contemplated by the Rating Schedule; in other words, why an extraschedular rating is not warranted for this disability. The Board is precluded from granting extraschedular ratings in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996) Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Notably, in the prior June 2010 decision, the Board found that the Veteran's symptomatology and limitation in occupational functioning resulting from his service-connected skin disorder were reasonably contemplated by the Rating Schedule under the first prong of the Thun analysis. Consequently, the second and third prongs did not need to be addressed. The Court found that further explanation was needed, however, as to how the schedular criteria reasonably contemplate the severity of the disability. In this regard, the Board notes that VA treatment records show recurring pustules on both thighs thought to be folliculitis in 2006. VA records show treatment continued in 2007. When examined on January 31, 2007, there were 5 pustular legions on the thigh. The lesions were erythematous, nontender, and appeared to be healing. A regimen of medications was prescribed. In May 2007, the Veteran reported that his rash started with itchy red spots that transformed into white pustules over a few hours. Within a day or so they grew to pea-sized to softball-sized lesions and drained white fluid. Then they healed over only to reoccur several weeks later. These lesions had always been localized to his legs. Each outbreak had 12-40 lesions. He had been treated with antibiotics and with other medications and ointments. He had no lesions at the time of this exam. When examined by VA on March 20, 2008, his history of treatment for his skin disorder was summarized in detail. It was noted that since treatment in February 2007, he had had only a few small outbreaks with just a few bumps. In the last year he had missed a total of one month from work because of his folliculitis. In addition, he had had to leave work early for 30-40 days because his lesions "would crop up." At the October 2012 VA skin exam, the Veteran reported that he still got red bumps in the groin and legs but this only occurred about once per month. He said that he sometimes had to have these lesions lanced and drained. For example, he had had one lanced in June 2012. The examiner documented that he had been treated with oral medications within the past 12 months, but did not find that he had had any debilitating episodes within the past year. There was no active disease at the current time, and when there was, there was less than 5 percent of the body surface involved. There was no evidence of tissue loss, disfigurement, and no change in skin texture or areas of induration or decreased mobility. Other that the Veteran's short course of antibiotics, it was not indicated that he required any topical antibiotic therapy. The matter was referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for initial consideration of extraschedular consideration. In a February 2013 report, significant improvement in the Veteran's condition was noted since 2008. The primary clinical findings as noted above were again summarized. The Director opined that the Veteran's skin disorder did not restrict his employment, and that there was no social or industrial impairment. Analysis According to the rating decisions of record, the Veteran's recurrent MRSA folliculitis is rated by analogy pursuant to DC 7806 (dermatitis or eczema). It is noted that DC 7806 provides that if the dermatitis or eczema covers an area of at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected; or requires intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past twelve-month period, a 10 percent rating is warranted. A 30 percent rating requires 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or; that systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. Finally, a maximum rating of 60 percent under the pertinent criteria is warranted when the condition covers an area of more than 40 percent of the entire body or when more than 40 percent of exposed areas affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past twelve-month period. The Veteran was assigned a 30 percent rating from January 13, 2006, to February 1, 2009. As the Veteran returned to active duty on February 2, 2009, the 30 percent rating was discontinued. It was reinstated as of April 3, 2010, following the Veteran's separation from service. In the analysis below, the Board will determine if an extraschedular rating is warranted for any pertinent period. Based on the clinical findings as summarized above, it is the Board's determination that an extraschedular evaluation is warranted for the period from January 13, 1006, until March 19, 2008. As noted above, during this period he was seen on a recurring basis for treatment for large numbers of skin lesions, and the manifestations of these lesions resulted in his missing work on a frequent basis. In fact, he reported when examined on March 20, 2008, that he had missed work for one month the previous year and left early on 30-40 occasions. Clearly, these findings are not contemplated by the appropriate DC. Thus, the schedular evaluation was referred for administrative review for extraschedular evaluation. While the Director's March 2013 review was not favorable, it is the conclusion of the Board that the amount of time missed from work and the severity of the skin outbreaks warrants an extraschedular rating of 60 percent for the period from January 13, 2008 to March 19, 2008. 38 C.F.R. § 3.321 (2012). A 60 percent rating is the next higher provided under DC 7806. As of examination on March 20, 2008, however, the severity of the lesions had decreased and subsequently dated treatment records do not show continued debilitating episodes causing him to miss work to the extent that he had previously. In fact, there was no active disease upon VA exam in December 2012. It was also noted at this time that other than a short course of antibiotics in the past year, continued topical antibiotic therapy was not indicated. As all clinical findings noted from March 20, 2008, are contemplated in DC 7806, an extraschedular evaluation is not warranted for the period from that date. Thus, for the period in question (from March 20, 2008) the previously assigned 30 percent disability rating is in effect from that date. ORDER Entitlement to a rating in excess of 10 percent for IBS is denied. Entitlement to an extraschedular rating of 60 percent is warranted for the service-connected skin disorder from January 13, 2006, to March 19, 2008, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to an extraschedular rating for the service-connected skin disorder for the period from March 20, 2008, is denied. REMAND Unfortunately, and for reasons explained below, in order to comply with the legal duty to assist the Veteran, the Board finds that it must remand the claim for service connection for residuals of TBI for additional development action. Background The Veteran contends that he has residuals of TBI from service. He points out that he was in close proximity to two improvised exploding device (IED) explosions resulting in numerous symptoms to include headaches, neck pain, dizziness, sleep disturbance, balance problems, and seizures. Review of the STRs reflects that the Veteran was, in fact, in close proximity to two IED explosions. These incidents occurred in March 2005 and October 2005. The first explosion resulted in a fire to a Humvee which had turned over. The Veteran helped put out the fire and was subsequently treated for associated inhalation of diesel smoke. Subsequently dated service records, to include a December 2005 post deployment health assessment, reflect that the Veteran gave a history of these incidents and said that he now had difficulty remembering. He also had difficulties with excessive vibration and loud noises. Post service VA records dated from 2006 to the present day include that the Veteran has a history of injury and clinical symptoms consistent with a diagnosis of mild TBI. (For example, see September 2010 VA treatment record.) When he underwent TBI screening in August 2007, the Veteran reported that symptoms immediately following the inservice incidents included being dazed, confused, and "seeing stars." Later, he suffered from memory problems, sensitivity to bright light, irritability, headaches, and sleep problems. VA records show that the Veteran has received extensive treatment for psychiatric symptoms and has been diagnosed with posttraumatic stress disorder (PTSD), for which he is service connected. When seen by VA primarily for PTSD symptoms in September 2010, mild TBI was also noted. In October 2010, in addition to the diagnoses of depression and PTSD, TBI was also noted. When examined by a VA examiner (E.L., M.D.,) at the Middleton Memorial VA hospital in Madison, Wisconsin, in February 2011, the Veteran's inservice history of exposure to IED blasts on two occasions was noted. He was unable to sleep after the blasts. While he did not lose consciousness on either occasion, he said that he was in a state of shock afterwards. Symptoms at this time did not include headaches, but he reported dizziness when he bent over to tie his shoes. He also became dizzy when he went to bed. There was sleep disturbance, to include night sweats and nightmares. He reported some problems with balance, and he had memory problems and could not retain information. He had decreased attention and concentration problems, and had occasional seizures when he passed out (on such occasions as when blood was drawn). Examination showed 5/5 strength in the upper and lower extremities. The Veteran had normal muscle bulk and sensation to touch vibration, and pinprick was normal. His gait was normal. There was no evidence of nervous system abnormality and cognitive testing was normal. While the Veteran complained of concentration problems and memory impairment, the examiner's judgment was that both were normal. He was oriented time three, and his motor activities were normal. The examiner's assessment was that the Veteran did not experience a traumatic brain injury during service. His symptoms were more likely related to his psychiatric condition and underlying medical conditions rather than residuals of a TBI. Moreover, reported injuries were not consistent with a TBI. Analysis While the VA examiner did not find residuals of TBI at the time of the February 2011 examination, she did not comment on the fact that VA records dated in 2010 included report of TBI. It is concluded by the Board that additional development is necessary to reconcile the contradictory diagnoses regarding residuals of TBI. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his TBI, on appeal. Any records that are not currently included in the claims file should be obtained and added to the file. With any necessary authorization from the Veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that are not currently of record. All efforts to obtain these records must be documented in the claims file. If any records cannot be obtained, it should be so stated, and Veteran is to be informed of such. 2. Subsequently, the claims folder should be forwarded to E. L., M.D., at the Middleton Memorial VA hospital in Madison, Wisconsin, who conducted the February 2011 VA examination and furnished the assessment that the Veteran did not experience a TBI during service. She found that his symptoms were more likely related to his psychiatric condition and underlying medical conditions rather than as a residual of TBI. She did not discuss the September and October 2010 diagnoses of TBI, however. (If she is unavailable forward to another VA specialist). The examiner should be asked to express an opinion as to whether the Veteran has residuals of inservice TBI. The examiner should discuss the 2010 diagnosis of TBI and reconcile that with the finding of no residuals of TBI found in 2011. If symptoms of TBI were initially present, but no longer are, the examiner should specify this and opine as to when the symptoms were no longer present. A complete rationale for any opinion expressed should be included in the addendum. The claims file must be made available to and reviewed by the examiner. The examiner must annotate the examination report that the claims file was reviewed in conjunction with the examination. All testing deemed necessary should be performed. All findings should be reported in detail. 3. When the development requested has been completed, the Veteran's claim should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs