Citation Nr: 1335169 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-20 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus with diabetic neuropathy. 2. Entitlement to an increased (compensable) rating for residuals of a fractured left great toe. 3. Entitlement to special monthly pension based on the need for housebound status or the need for regular aid and attendance. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had verified active duty in the Marine Corps from November 1972 to November 1974 and from June 1985 to May 1986. He also had verified active duty in the Army from May 1975 to September 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and September 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The December 2008 rating decision, in pertinent part, denied service connection for diabetes mellitus with diabetic neuropathy and an increased (compensable) rating for residuals of a fractured left great toe. A February 2012 RO decision (issued in a February 2012 supplemental statement of the case (SSOC)) also denied a claim for a TDIU rating that was subsequently the subject of a March 2012 notice of disagreement and VA Form 9. Consequently, the Board finds that it also has jurisdiction over this issue pursuant to Percy v. Shinseki, 23 Vet. App. 37 (2009). The September 2012 rating decision denied entitlement to special monthly pension based on the need for housebound status or the need for the regular aid and attendance. A notice of disagreement with respect to this issue was received in December 2012. The RO has not issued a statement of the case (SOC) as to this issue, and as such, a remand for the issuance of an SOC is required. Manlincon v. West, 12 Vet. App. 238 (1999). The matters of entitlement to service connection for diabetes mellitus with diabetic neuropathy, an increased (compensable) rating for residuals of a fractured left great toe, and a TDIU were remanded in December 2012 for the RO to schedule the Veteran for a Board video conference hearing. In April 2013, a video conference hearing was held before the undersigned; a transcript of the hearing is included in the claims file. At the hearing, the Veteran requested and was granted a 60-day abeyance period to allow for the submission of additional evidence, with a waiver of RO consideration; no additional evidence was received and the time has lapsed. The issues of entitlement to service connection for diabetes mellitus with diabetic neuropathy, special monthly pension based on housebound status or the need for regular aid and attendance, and a TDIU are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's service-connected residuals of a fractured left great toe have not been productive of moderate foot disability. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for the Veteran's service-connected residuals of a fractured left great toe have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5284 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Fed. Cir. 2009). The RO provided the Veteran pre-adjudication notice by a letter dated in July 2008. That letter explained the evidence necessary to substantiate his claim for an increased rating, the evidence VA was responsible for providing, and the evidence he was responsible for providing; it also provided information regarding determining the disability rating and effective date. A March 20009 letter provided information regarding rating criteria. Notably, at the April 2013 video conference hearing the Veteran was advised of what was needed to substantiate his claim for an increased rating. His testimony reflects that he is aware of what remains necessary (also his attorney requested that the record remain open for 60 days to submitted additional evidence). It is not alleged that notice was less than adequate. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA treatment records have been obtained. The Veteran was afforded VA examinations in August 2008 and February 2012. All known and available records relevant to the issue being decided herein have been obtained and associated with the Veteran's claims file; the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Legal Criteria, Factual Background and Analysis The present appeal involves the Veteran's claim that the severity of his service-connected residuals of the left great toe warrants a higher disability rating. His left great toe disability is currently rated 0 percent. 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; 38 C.F.R. Part 4. 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. 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected residuals of a fractured left great toe have been rated 0 percent (non-compensable) by the RO under the provisions of Diagnostic Code 5284. Under this regulatory provision, a compensable rating of 10 percent is warranted for moderate foot injury, a 20 percent rating is warranted for moderately severe foot injury, a 30 percent rating is warranted for severe foot injury, and a maximum rating of 40 percent is warranted for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Board has reviewed all evidence in the Veteran's claims file and in his Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. An August 2007 VA progress note, reveals the Veteran was seen for multiple foot ulcers from a traumatic incident (according to the Veteran). He had palpable pedal pulses and had documented diabetic neuropathy. There was marked erythema and redness present but it appeared to be mildly improved. There was a lesion at the tip of the great toe that was crusted over. The base of the 1st digit on plantar surface appeared open. An August 2007 x-ray report revealed the Veteran was seen for an infection of the left great toe (Cellulitis). X-rays showed diffuse soft tissue swelling over the distal left great toe. A previous fracture across the distal phalanx was noted. The examiner noted the results of a healed fracture in the area of the distal phalanx with no evidence of osteomyelitis at that time. There was a superficial ulcer over the dorsal aspect of the left great toe. A December 2007 MRI [magnetic resonance imaging] of the left foot showed no evidence of osteomyelitis; there was uniform low signal noted throughout the visualized bones of the mid and hindfoot. A January 2008 VA podiatry operative report noted the Veteran was seen for a follow-up of a left foot ulceration. A prior medical history of diabetic foot ulcer, cellulitis and abscess of the toe was noted. On examination there was one ulceration with granular tissue, minimal erythema, and no frank pus, but there was serous drainage. The impression was left foot diabetic ulceration, improved. In May 2008 the Veteran filed a claim for an increased rating for his service-connected residuals of a fractured left great toe disability. On August 2008 VA foot examination, the Veteran reported that while serving in Okinawa a fire extinguisher fell on his left foot. It broke his left big toe and three toes next to it. He was given crutches and was told to wear sneakers for a while. After about two months the pain was gone, but he would occasionally experience throbbing of the toe and the toenail (of the left great toe) never grew back correctly. He had no hospitalizations related to the left great toe. He had no symptoms of pain, swelling, heat, redness, stiffness, fatigability, weakness, or lack of endurance. He described symptoms of occasional sporadic throbbing. He stated that he was able to stand for 15 to 30 minutes and walk a quarter mile. He did not need an assistive device at that time. On physical examination of the left foot, there was no objective evidence of painful motion, swelling, tenderness, instability, or weakness. There was no evidence of abnormal weight bearing. There was no skin or vascular foot abnormality. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. There was an absence of the left hallux nail with callus formation on the nail bed that the Veteran said he needed to "pick off" occasionally. Range of motion of the hallux interphalangeal joint (PJ) and 1st metatarsophalangeal (MTP) joints was pain free with no crepitation. The diagnosis was status/post fracture of the left hallux with loss of big toe nail. The examiner opined that it was more likely than not that the Veteran's left big toe problem was caused by his military service, however, he does not seem to suffer any significant disability. He does have loss of his hallux nail with mild callus formation, which did not seem to impair him at all. He admitted to having diabetic neuropathy with a loss of sensation in the area. The examiner noted that he did not see that causing the Veteran any significant disability at that time. The Veteran was unemployed at the time of the examination. On September 2008 VA outpatient clinical evaluation, it was noted that the great (left) toe had an old wound which had healed. In another September 2008 VA outpatient clinical evaluation, the Veteran reported a pain level of 7 in his left foot and leg. He described it as pins and needles constantly and then shooting pains like burning every few minutes. On June 2011 the Veteran was admitted to a VA medical center with a diagnosis of left foot wound, rule out osteomyelitis. MRI was positive for osteomyelitis and cellulitis of the forefoot near the great toe. The osteomyelitis involved the great toe metatarsal/proximal phalanx and medial/lateral sesamoid bones. He underwent a left great toe amputation. The discharge diagnosis was osteomyelitis of the left foot, status post amputation of the left great toe. On February 2012 VA foot examination, the Veteran reported that he had no pain from the stump at the left 1st MTP, but, that he had neuropathy of both feet up to his knees. He stated that he was status post amputation of the left great toe in 2011 due to diabetic ulcer. He stated that he broke his left great toe at the proximal area in 1973. On physical examination he did not have Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of tarsal or metatarsal bones, or bilateral weak foot. Other left foot injuries were described as status post fracture of the left great toe in service with no residual (toe has been amputated), and status post amputation of the left great toe due to diabetic ulcer in 2011, with moderate severity. He had well healed surgical scars at the stump of the left 1st MTP. The diagnosis was fractured left great toe, no residuals (the fractured toe had been amputated secondary to diabetic ulcer), and amputated left great toe. The Veteran used a cane as a normal mode of locomotion for his status post left hip replacement. He had no functional impairment due to his foot disability, such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. His foot disability did not impact his ability to work. The examiner noted that the Veteran's status post fracture of the left great toe did not have any residuals since the left great toe from the base of the 1st MTP was amputated due to diabetic ulcer. On review of the relevant evidence of record, the Veteran has not been shown to have findings associated with moderate foot injury to warrant a 10 percent rating under Diagnostic Code 5284. In that regard, the August 2008 VA examiner found that the Veteran's left foot revealed no objective evidence of painful motion, swelling, instability or weakness. Range of motion of the hallux PJ and 1st MTP joints were pain free with no crepitation. The examiner observed that while the Veteran had loss of his hallux nail with mild callus formation, it did not impair him. Moreover, at the time of the February 2012 VA examination the Veteran was post amputation of the left great toe (due to diabetic ulcer). He had no residual disability or functional impairment as a result of his service-connected left great toe. The examiner noted that the Veteran's status post fracture of the left great toe did not have any residuals since the left great toe from the base of the 1st MTP was amputated due to diabetic ulcer. The Veteran does not contend otherwise. On February 2012 VA examination he reported that he had no pain from the stump of the left 1st MTP and that he was status post amputation of the left great toe due to diabetic ulcer. Nevertheless, the Board has considered whether a compensable rating is warranted for functional impairment due to pain, weakness, arthritis, or abnormal gait. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202. However, the February 2012 VA examiner found the Veteran had no functional impairment due to his foot disability. Even turning to other diagnostic codes pertaining to the foot, the available evidence shows that the Veteran does not have flat feet, pes cavus, Morton's disease, hallux valgus, hallux rigidus or hammer toe. 38 C.F.R. § 4.71a, Diagnostic Codes 5276, and 5278 to 5282. Additionally, there is no evidence of bilateral weak foot characterized by atrophy of the musculature, disturbed circulation and weakness. 38 C.F.R. § 4.71a, Diagnostic Code 5277; nor is there evidence of malunion/nonunion of tarsal or metatarsal bones. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Although the Veteran has difficulty walking (uses a cane due to a left hip replacement), he is still able to walk and utilize his foot. Therefore, the Board finds that during the course of the appeal, the evidence does not show that he had actual loss of use of the foot, the condition that warrants a 40 percent rating under Diagnostic Code 5284. The Board reiterates that the Veteran's left great toe was amputated as a result of diabetic ulcers (which are not service-connected) and the evidence shows that during the course of the appeal he did not experience any residual disability related to his service-connected fractured left great toe. Thus, the Board finds that the Veteran's residuals of a fractured left great toe disability have not been shown to be productive of moderate foot disability to warrant a compensable (10 percent) rating under any applicable diagnostic code. In addition, staged ratings are not applicable for any period during this appeal, since at no point did the Veteran's disability approximate the criteria for a compensable disability rating. Hart, 21 Vet. App. 505. At this point the Board emphasizes that this decision only looks to the impairment due to the service-connected residuals of a fracture of the left great toe. There is no question that the left toe developed additional disability due to the nonservice-connected diabetes, and this is what led to the amputation. However, prior to the development of the ulcer and osteomyelitis, the service-connected residuals of the fracture did not result in compensable impairment. It is acknowledged that the separate issue of service connection for diabetes is also on appeal. However, the Board does not view the increased rating for left great toe disability as intertwined with the service connection for diabetes issue. The service-connected great left toe disability is separate from any diabetes-related impairment, and a decision on the rating for great left toe is appropriate at this time. The Board has also considered whether referral for extraschedular consideration is warranted in this instance. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director 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)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) 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, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first 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. 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. In this case, the medical evidence is consistent with a non-compensable rating criteria and referral for extraschedular consideration is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Lastly, the Court held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, however, the Veteran has explicitly raised a claim of entitlement to a TDIU, and that matter is addressed in the Remand section of this appeal. ORDER Entitlement to a compensable rating for residuals of a fractured left great toe is not warranted. The appeal is denied. REMAND The Veteran's claim for service connection for diabetes mellitus with diabetic neuropathy was denied in the December 2008 rating decision on the bases that diabetes mellitus with diabetic neuropathy neither occurred in nor was caused by his active service. The Veteran now contended that he has diabetes secondary to exposure to Agent Orange or other herbicides while stationed in Okinawa, Japan for eleven month within the period from 1973 to 1974. His DD-214 for the period of service in the U.S. Marine Corps from November 1972 to November 1974 notes he served eleven months and ten days of foreign service, but does not provide the location of that service. Service personnel and medical records for that period of service do not show that he served in Okinawa during said period. On remand the RO should request that the National Personnel Records Center (NPRC) verify the Veteran's service in Okinawa, Japan anytime during his period of service from November 1972 to November 1974. If such information is not found, the Veteran must be notified pursuant to 38 C.F.R. § 3.159(e) and he should be informed that he can submit alternate sources of evidence. As diabetes mellitus, type II, is a disease which is presumed by VA to be caused by exposure to herbicides, (38 U.S.C.A. § 1116(a)(2) (West 2002);38 C.F.R. §§ 3.307(a)(6), 3.309(e)), if the Veteran's service in Okinawa, Japan is verified, then further development of his claim of entitlement to diabetes mellitus with diabetic neuropathy, claimed as secondary to exposure to herbicide is required. In this regard, VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n) directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the Compensation and Pension Service via e-mail, and that a review be requested of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. If the exposure is not verified, a request should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. The Board concludes that this matter must be remanded for compliance with the procedures set forth in the VA Adjudication Manual. The Court has held that evidentiary development procedures as provided for in VA's Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development outlined in M21-1). Additionally, during his video conference hearing the Veteran stated that he was diagnosed with diabetes mellitus about 10 years ago while incarcerated in a Massachusetts county prison. As those records may be pertinent to the current appeal the RO should solicit an authorization from the Veteran to obtain any such records from the Massachusetts county prison. Next, a remand is required as to the issue of entitlement to special monthly pension based on the need for housebound status or the need for regular aid and attendance. Specifically, a September 2012 rating decision denied the Veteran's claim to special monthly pension. In December 2012 the Veteran's representative submitted a notice of disagreement with that rating decision. A statement of the case has never been issued pursuant to 38 C.F.R. § 20.200 in response to the December 2012 notice of disagreement. Under these circumstances, the Board has no discretion and is obliged to remand such issue to the RO for the issuance of a statement of the case. See Manlincon, 12 Vet. App. at 240-41; Holland v. Gober, 10 Vet. App. 433, 436 (1997). Finally, the issue of entitlement to a TDIU is inextricably intertwined with the pending issue of entitlement to service connection for diabetes mellitus with diabetic neuropathy. Thus, appellate review of the issue of entitlement to a TDIU and must be deferred until the resolution of the intertwined matter. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran VA Form 21-4142 (Authorization and Consent to Release Information) so that it may attempt to obtain medical records (pertinent to the claim for service connection for diabetes) from the Massachusetts county prison where the Veteran was incarcerated and also diagnosed with diabetes. Should the Veteran respond, the RO should then request all such records. Two attempts should be made to obtain such records, unless a formal finding can be made that a second request would be futile. See 38 C.F.R. § 3.159(c)(1). 2. Verify whether the Veteran's 11 months of foreign service was served in Okinawa, Japan at any time during the period from November 1972 to November 1974. If NPRC is unable to verify such service, a specific negative finding from NPRC is requested. 3. If the Veteran's service in Okinawa is verified, provide him proper notice with respect to his claim based on herbicide exposure. In particular, this notice must include the procedural steps to verify such exposure as outlined in the M21-1MR. The Compensation and Pension Service should provide a detailed response pertaining to the Department of Defense inventory of herbicide operations in Okinawa, Japan, to include a list of locations and circumstances of usage, as well as the specific source of such information. If the Department of Defense review does not confirm the Veteran's exposure to herbicides, all associated documents should be sent to the JSRRC or other appropriate organization for verification. If unable to provide such information, they should be asked to identify the agency or department that could provide such information and the RO should accordingly conduct follow-up inquiries. 4. Issue the Veteran an SOC with respect to his claim of entitlement to special monthly pension, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on that issue. 5. Thereafter, the issues remaining on appeal should be readjudicated. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with an SSOC and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs