Citation Nr: 1334914 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-04 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis C. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected degenerative joint disease of the lumbosacral spine. 3. Entitlement to service connection for a dental disability, to include as secondary to service-connected degenerative joint disease of the lumbosacral spine. 4. Entitlement to an initial evaluation in excess of 40 percent for degenerative joint disease of the lumbosacral spine, to include whether a reduction from 40 percent to 20 percent disabling, effective January 6, 2010, was proper. 5. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1972 to September 1974. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO). In an August 2006 rating decision, the RO declined to reopen a claim of entitlement to service connection for hepatitis C and granted service connection for degenerative joint disease (DJD) of the lumbosacral spine and assigned a 40 percent evaluation. In a March 2008 rating decision, the RO, inter alia, denied service connection for hypertension, a dental disability, and TDIU. The Veteran perfected appeals as to all of these issues. Additionally, during the course of the appeal, in a January 2010 rating decision, the RO reduced the evaluation for degenerative joint disease of the lumbosacral spine from 40 percent to 20 percent disabling, effective January 6, 2010. In November 2010, the Veteran presented testimony in a Travel Board hearing before the undersigned acting Veterans Law Judge. A copy of the transcript has been associated with the claims folder In August 2011, the Board remanded the claim for further development. The Board has reviewed the Veteran's Virtual VA file and has considered all additional relevant records contained therein in the decision below. The issues of the propriety of the reduction of the evaluation of degenerative joint disease of the lumbosacral spine and entitlement to a TDIU 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. FINDINGS OF FACT 1. Service connection for hepatitis C was denied by the Board in a decision of December 2005. The decision is final. 2. The evidence submitted since the Board's denial of December 2005 is cumulative. 3. Hypertension was not shown in service, within the first post-service year, and there is no etiological relationship between service-connected lumbar spine disability or military service. 4. A dental disability did not have onset during active service, was not caused by active service, was not caused or aggravated by the Veteran's service-connected degenerative disc disease of the lumbosacral spine. CONCLUSIONS OF LAW 1. The December 2005 Board decision, which denied service connection for hepatitis C, is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1103, 20.1104 (2013). 2. The evidence received since the December 2005 Board decision, which denied service connection for hepatitis C, is not new and material and the claim is not reopened. 38 U.S.C.A. §§ 5103A, 5107, 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Hypertension is not proximately due to or the result of a service-connected disability, was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 4. A dental disability is not proximately due to or the result of a service-connected disability, and was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in January 2007 and June 2007, prior to the March 2008 rating decision, and November 2011, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letters also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that with regards to the request to reopen the claim for service connection for hepatitis C, the November 2011 notice letter did not predate the rating decision. However, the notice letter was sent pursuant to a Board directive in the August 2011 remand. Moreover, the issue was readjudicated in a supplemental statement of the case of November 2012. Therefore, any timing deficiency was cured by the Board remand and is no longer prejudicial to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available service and post-service treatment records have been secured and associated with the claims folder. Also, the Veteran was provided VA examinations for his claims. The Veteran was afforded an examination for his hypertension and dental disability in December 2011. An independent medical examination was obtained regarding the dental disability in December 2012. Review of these examination reports reflect that cumulatively the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and her representative have not contended otherwise. The Veteran has not been afforded a VA examination in regards to the request to reopen the claim for service connection for hepatitis C. Where the issue is one of new and material evidence, the duty to provide a VA examination does not attach until new and material evidence has been received. As will be discussed below, the Board has determined that new and material evidence has not been received. Therefore, there is no need to provide the Veteran with a VA examination. Additionally, the Veteran presented testimony in support of his claims before the undersigned. During the November 2010 hearing, the undersigned complied with the requirements set forth in 38 C.F.R. § 3.103(c)(2) (2012), and neither the Veteran nor his representative have identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. Thus, the duties to notify and assist have been met. Legal Criteria and Analysis A. New and Material Evidence The appellant seeks to reopen his claim for service connection for hepatitis C. Service connection was previously denied in a December 2005 Board decision. The basis for the denial was that there was no competent evidence of a nexus to service. This decision is final. 38 U.S.C.A. § 7104. At the time of the Board denial the record included service medical records which were completely silent for any diagnosis of or treatment for hepatitis C; VA outpatient treatment records showing a diagnosis of and treatment for hepatitis C; the Veteran's assertions that he suffered from hepatitis C symptoms in service and that his only risk factors were in service; the Veteran's representative's statement arguing that the Veteran was infected with hepatitis C through air gun injections; and, a VA examination of July 2004 wherein the examiner opined that hepatitis C was not related to service. Added to the record since the Board's decision of December 2005 are additional VA outpatient treatment records showing a continued diagnosis of chronic hepatitis C. Also added to the record is the Veteran's testimony at the November 2010 hearing wherein he testified he had experienced hepatitis C symptoms, more specifically, jaundice, in service and that after service, he had experienced jaundice in the 1980's and then hepatitis symptoms in the 1990's. The Board's December 2005 decision is final based upon the evidence then of record. A previously finally denied claim will be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Effective from August 29, 2001, the regulations defining "new and material evidence" were revised and clarify the types of assistance the VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(b). These specific provisions are applicable only to claims filed on or after August 29, 2001. As the appellant filed his claim seeking to reopen in March 2006, the Board will apply the revised provisions. Under the revised regulations, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a) (2013). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board has made a careful review of the evidence of record. In the present case, the evidence submitted since the Board decision of December 2005 is not new and material as it does not relate to an unestablished fact necessary to substantiate the claim, namely, that the appellant's hepatitis C is related to service. While the appellant has introduced additional evidence which states that hepatitis C symptoms were experienced in service, namely his allegations of jaundice in service, this evidence is cumulative since at the time of the prior denial he had also argued that he had experienced symptoms of hepatitis C in service. The evidence introduced since the December 2005 Board decision does not show hepatitis C is related to service or due to disease or injury in service. Thus, as the additional evidence is cumulative of the evidence of record at the time of the December 2005 Board decision and does not raise a reasonable possibility of substantiating the claim, the request to reopen the claim of service connection for hepatitis C is denied. 38 C.F.R. § 3.156(a). Stated differently, at the time of the prior denial there was post-service evidence of hepatitis C. Since then, the Veteran has submitted evidence of hepatitis C, but such fact had previously been established and is thus cumulative. In regard to his assertion as to cause, such is repetitive of his initial claim and is also cumulative. The added evidence is not new and material and the claim is not reopened. B. Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2013). Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.303, 3.310 (2013). Service connection may be granted for a dental condition of each tooth and periodontal tissue shown by the evidence to have been incurred in or aggravated by service. When applicable, a determination will be made as to whether it is due to a combat wound or other service trauma, or whether the Veteran was interned as a prisoner of war (POW). 38 C.F.R. § 3.381(b). The significance of finding a dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c). Under VA regulations, service connection for compensation purposes is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of the body of the maxilla or mandible. 38 C.F.R. § 4.150. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 note (1) (2013). The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Id. If hypertension becomes manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption does not apply in the present case as hypertension did not manifest until many years after discharge, as discussed below. I. Dental disability The Veteran argues that he has a current dental disability, specifically, bruxism, that is related to his service connected back disability. Service treatment records are silent for any complaints of or treatment for a dental disorder. Post service treatment records show the Veteran sought treatment for broken teeth, clenching of his teeth, caries, periodontal disease, fractured teeth, bone loss and bruxism. A March 2007 letter from the Veteran's private dentist notes that he had been providing comprehensive dental care to the Veteran. It was noted that upon comprehensive examination of 2006, severe bone loss, occlusal wear, several fractured teeth and restorations, due to chronic bruxism were noted. The dentist opined that the pain and stress associated with chronic back pain has increased the Veteran's diurnal clenching and bruxism. The Veteran was afforded a VA examination in July 2007. The examiner noted multiple missing teeth; significant anterior crowding and malocclusion; generalized moderate horizontal bone loss, more severe horizontal bone loss affecting the mandibular anterior teeth, and localized angular bone loss elsewhere; cuspid guidance in lateral excursions and incisal guidance in protrusive excursions; wear facets on cuspids and incisors; and evidence of relatively little wear on the posterior teeth. The examiner stated that the Veteran's history of fractured teeth and bruxism seemed to be related to his anterior crowding and malocclusion, which were inherited traits, rather than military service. He also found that chronic adult periodontitis may have played a secondary role related to the Veteran's bruxism and possibly to the tooth fractures as periodontal disease is an infection due primarily to long time poor oral hygiene and not military service. In addressing the Veteran's claim that bruxism and fractured teeth were secondary effects of his service-connected lumbar spine disability, the examiner indicated that such connection was not justified. The examiner concluded that it was "highly unlikely" that the Veteran's current dental problems were secondary to his service-connected spine disability. He further noted that he could not resolve the issue with resorting to speculation. The Veteran was afforded another VA dental examination in December 2011. At the time, the Veteran was diagnosed with periodontal disease, dental caries, and chronic bruxism/clenching. The Veteran reported that he clenched his teeth due to the pain caused from his back injury. After review of the claim file and an examination of the Veteran, the examiner opined that he disagreed with the private dentist's assertion that the bone loss and fractures in his teeth were due to bruxism. He stated that the bone loss was a result of lack of dental care throughout the years, poor oral hygiene, smoking and severe periodontitis. He indicated that any relationship between his current dental condition and the Veteran's service connected lumbar spine disability was highly unlikely and unjustified. Rather, he stated that the Veteran's current dental condition and missing teeth were most likely a result of a history of dental caries and his severe periodontal disease, and not from clenching his teeth. An independent medical opinion was obtained in November 2012. After a review of the claims file, the specialist opined that it was less likely than not that the Veteran's claimed dental conditions were connected to or aggravated by his service connected lower back condition. She noted that the Veteran had a long history of poor dental hygiene. She noted there was no clinical evidence of fractured teeth. She indicated that since poor personal hygiene was the leading cause of severe periodontal disease, it was at least as likely as not that the continuous development of heavy plaque, calculus, smoking and severe periodontitis were the causes of the Veteran's current dental condition. She further noted that in her search of literature, she had found no conclusive medical evidence to link lower back condition with a Veteran's choice of poor dental hygiene. Moreover, she noted there was little evidence to support the Veteran's assertions that he clenched his teeth. She noted the June 2011 and December 2011 VA examinations found minimal objective evidence to support bruxism. At the outset, the Board notes that the Veteran has not alleged and the evidence does not show that any of his current dental conditions was incurred in service. Indeed, the record shows that there were no dental problems noted in service and there is no competent evidence that any of his currently diagnosed dental conditions are related to service. Accordingly, service connection on a direct basis is not warranted. As to secondary service connection, the Board notes that the VA examinations are not adequate for appellate review as they do not provide an appropriate reasoning for the opinions rendered. However, an independent medical opinion was obtained. The independent medical examiner of December 2012 found that the dental conditions were less likely than not proximately due to or the result of the Veteran's service-connected back disability. The opinion was based on a review of the claim file, considered the pertinent findings and prior opinions from the VA examiner and private dentist, and considered medical literature. The specialist provided a full reasoning for the opinion. Therefore, the Board affords the opinion great probative weight. Based on the evidence, the Board finds that the December 2012 independent medical examiner's report is the most probative evidence of record as it was comprehensive, definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of the Veteran's reported history and the VA examiner's and private dentist's opinions. Significantly, the VA examiner's findings are consistent with the evidence of record. The only evidence in favor of the Veteran's claim are his own assertions and the private dentist opinion of March 2007. In regards to the Veteran's assertions and opinions, the Board notes that while the Veteran is competent to report symptomatology, he is not competent to provide an opinion as to complex medical issues as is the cause of the loss of his teeth and other dental problems. See Layno v. Brown, 6 Vet. App. 465 (1994). In regards to the March 2007 private opinion, the Board notes that a reasoning was not provided for the same. Accordingly, the opinion is inadequate and the Board affords it little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). Finally, the Board notes that despite the independent medical examiner's finding that there was not enough evidence to support a diagnosis of chronic bruxism, the Board has accepted the diagnosis of bruxism for purposes of this decision. Moreover, while the examiner questioned the Veteran's assertions of a history of clenching of the teeth, the Board has considered the Veteran's allegations to be credible. Regardless, the preponderance of the competent evidence is still against the claim. Accordingly, the Board concludes that the VA opinion is found to carry significant weight and the Board finds that the Veteran's current dental conditions are not related to service or service-connected back disability. See 38 C.F.R. § 3.303, 3.310 (2013). II. Hypertension The Veteran seeks entitlement to service connection for hypertension. He argues that he has hypertension which was caused or aggravated by his service connected lumbar spine disability. He specifically contends that the pain from his spine disability has resulted in hypertension. Service treatment records are completely silent for any complaints of or treatment for hypertension. Post service treatment records show a diagnosis of and treatment for hypertension. A December 2011 VA examination report notes that the Veteran was first diagnosed with hypertension in 2002. After an examination of the Veteran, and a review of the claim file, the examiner opined that it was less likely than not that the current hypertension was caused by or aggravated by the service connected lumbar spine disability, or that it was related to service. The examiner reasoned that although pain may cause transient elevations in blood pressure, chronic pain, such as that from which the Veteran experienced, has not been shown to cause or aggravate essential hypertension. She also noted that a review of the claim file reflected that the Veteran did not have hypertension in service or during the first 20 years post service. At the outset, the Board notes and the Veteran does not claim that hypertension had its inception in service. Indeed, the record reflects that there was no diagnosis or symptoms of hypertension during service. Moreover, the first evidence of a diagnosis of hypertension was not until decades after service. Therefore, there is no basis for establishing service connection on a direct or presumptive basis. As to secondary service connection, the VA examiner found that hypertension was less likely than not caused by or aggravated by the Veteran's service-connected back disability. She noted that the Veteran was diagnosed with hypertension in 2002. The examiner concluded that hypertension was not incurred in service. She further noted that there was no connection between the service connected lumbar spine disability and hypertension because the pain of associated with the back disability only caused transient elevations in blood pressure and there was no evidence that chronic pain caused or aggravated hypertension. Based on the evidence, the Board finds that the VA examination report is the most probative evidence of record as it was comprehensive, definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of both the Veteran's reported history and the Board's remand directives. Significantly, the VA examiner's findings are consistent with the evidence of record, which is negative for any documentation of hypertension during service or for many years thereafter, or in connection with the lumbar spine disability. Her findings and opinion stand uncontradicted by any other competent evidence of record. Accordingly, the Board concludes that the VA opinion carries significant weight and that the Veteran's current hypertension is not related to service or service-connected lumbar spine disability. See 38 C.F.R. § 3.303, 3.310 (2013). The Board acknowledges the Veteran's belief that his hypertension is caused and/or aggravated by the pain caused by his back disability. However, although the Veteran is competent to report symptomatology as he feels through his senses, he is not competent to state an opinion as to the etiology of hypertension which requires expert medical knowledge the Veteran has not been proven to have. See Layno. In sum, although the Veteran has a current diagnosis of hypertension, there is no probative evidence that it was present in service, manifested within a year of service discharge, or is related to service or a service-connected disability. Service connection is thus not warranted. ORDER The petition to reopen the claim of entitlement to service connection for hepatitis C is denied. Entitlement to service connection for a dental condition is denied. Entitlement to service connection for hypertension is denied. REMAND The Veteran seeks entitlement to TDIU and a higher disability rating for the service connected back disability. Unfortunately, after a review of the claim file, the Board finds that additional development is needed prior to deciding the claim. With regard to the increased evaluation for degenerative joint disease of the lumbosacral spine, the provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines have been met. The regulations provide that the RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested or the Veteran requests a predetermination hearing but fails to appear without good cause and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2) (2013). The effective date of the reduction will be the last day of the month in which a 60 day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i) (2013). In the August 2011 remand, the Board noted that there was no indication in the claims folder that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e) (2013) in reducing the Veteran's evaluation for his service-connected lumbar spine disability. The Board instructed that on remand, in order to ensure due process, the RO must provide the Veteran with notice as required by 38 C.F.R. § 3.105(e) (2013). However, a review of the claims file shows that the Veteran has not been afforded the requested notice. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. Therefore, the issue must be remanded for compliance with the August 2011 Board remand. The issue of entitlement to TDIU is inextricably intertwined with the issue being remanded. Action on the Veteran's TDIU claim is therefore deferred. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice regarding the reduction of the rating for degenerative joint disease of the lumbosacral spine in accordance with the provisions of 38 C.F.R. § 3.105 (2013). 2. Then, after ensuring any other necessary development has been completed, readjudicate the issues on appeal. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). ______________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs