Citation Nr: 1336662	
Decision Date: 11/12/13    Archive Date: 11/22/13

DOCKET NO.  10-24 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability. 

2.  Entitlement to service connection for bilateral tinnitus. 

3.  Entitlement to an increased rating for degenerative disc disease with spinal stenosis of the lumbar spine, evaluated as 10 percent disabling prior to October 20, 2009, and 20 percent disabling from October 1, 2010.  

4.  Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from November 1975 to April 1977. 

This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claims of entitlement to service connection for a bilateral hearing loss disability and tinnitus, and increased the disability evaluation for the service-connected lumbar spine disability to 10 percent disabling effective February 11, 2009.  Jurisdiction of the case has since been transferred to the RO in Nashville, Tennessee. 

During the pendency of this appeal, in a January 2010 Decision Review Officer decision, the RO granted a temporary 100 percent evaluation for surgical or other treatment necessitating convalescence for the service-connected lumbar spine disability effective October 20, 2009.  Following proposed rating actions, in a July 2010 rating decision, the RO decreased the evaluation for the lumbar spine disability to 20 percent effective October 1, 2010.  Since the RO did not assign the maximum disability rating possible (aside from the temporary 100 percent evaluation), the appeal for a higher disability evaluation remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal).  

In April 2010, the RO issued a supplemental statement of the case as to the issue of entitlement to an extension of the temporary total evaluation because of treatment for a service-connected condition requiring convalescence.  However, the Board notes that no notice of disagreement was filed with regard to an April 2010 rating decision denying an extension of the temporary total evaluation.  Furthermore, neither the Veteran nor his representative indicated at the July 2011 hearing before the undersigned that they were pursuing an appeal of this issue.  Therefore, the issue of an extension of the temporary total evaluation is not before the Board.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (noting that pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA).

In July 2011, the Veteran presented testimony in a videoconference hearing before the undersigned, and a copy of the transcript has been associated with the claims folder.  

The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record.  During the July 2011 hearing, the Veteran and his representative raised the issue of the Veteran's unemployability.  In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision/remand.

The issues of an increased rating for degenerative disc disease with spinal stenosis of the lumbar spine and 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.  The Veteran does not have a bilateral hearing loss disability for VA compensation purposes.  

2.  The Veteran has bilateral tinnitus related to service.


CONCLUSIONS OF LAW

1.  A bilateral hearing loss disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred therein.  38 U.S.C.A. 
§§ 1101, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).  

2.  Tinnitus was incurred in active duty military service.  38 U.S.C.A. §§ 1131, 5107  (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In correspondence dated in February 2009, prior to the April 2009 rating decision, 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).  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 February 2009 letter 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).  

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 treatment records have been secured.  

As the Board will discuss in detail in the analysis below, the Veteran was provided a VA audiological examination in March 2009.  A review of the VA examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board concludes that the examination report of record is adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2013); Barr, 21 Vet. App. at 312

Also, as noted above, the Veteran presented testimony in a videoconference  hearing before the undersigned.  In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation.  These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked.  This was done during the July 2011 hearing before the Board.  The Veteran was also offered an opportunity to ask the undersigned questions regarding his claims.  Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate the current service connection claims.  Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the Board hearing.  Thus, the duties to notify and assist have been met.

Hearing Loss Disability 

The Veteran essentially contends that he has a current hearing loss disability related to acoustic trauma during service.  

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

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).  

Sensorineural hearing loss disability may be presumed to have been incurred in service if shown to have manifested to a compensable degree within one year after the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  However, this presumption does not apply as discussed below. 

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2013). 

With respect to Hickson element (1), current disability, the Veteran was afforded a VA audiological examination in March 2009, the report of which noted the following pure tone thresholds, in decibels: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
20
25
LEFT
15
20
20
20
30

Speech recognition was 100 percent bilaterally.  The examiner noted that hearing loss was not disabling. 

The Board finds that based on the evidence of record that the Veteran does not currently have hearing loss disability in either ear for VA compensation purposes.  See supra 38 C.F.R. § 3.385 (2013).  The evidence clearly demonstrates that the Veteran currently has normal hearing acuity.  Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  Therefore, service connection for a bilateral hearing loss disability is not warranted. 

The Veteran, as a lay person, is competent to note what he experiences, including decreased hearing acuity.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses).  Furthermore, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

However, in this case, the question as to whether the specific degree of the Veteran's hearing loss meets the criteria for hearing loss for VA compensation purposes is a complex medical question unlike testimony as to his experiencing the symptoms of decreased hearing generally.  Likewise, it is different from a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation.  See Jandreau, 492 F.3d at 1376 (noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet).  That is, appropriate expertise is required to determine whether the Veteran's hearing acuity is impaired to the level of a hearing loss disability under VA regulations.  In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render audiological findings.  See 38 C.F.R. § 3.159 (a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions).  While the Veteran is competent to report what he experiences, he is not competent to ascertain his level of hearing loss as such is not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994).  In this circumstance, the Board gives more weight to the March 2009 VA audiological testing results rendered by a trained medical professional.  

The Board acknowledges that by this decision the Veteran will be granted service connection for tinnitus based on acoustic trauma during service, and the March 2009 VA examiner attributed hearing loss and tinnitus to military noise exposure.  However, the Veteran does not have the level of hearing impairment required under VA regulations for a grant of service connection.  This action, however, does not preclude the Veteran from being entitled to service connection for hearing loss in the future should the degree of hearing loss worsen to meet the hearing acuity contemplated by the applicable regulations.  At that time, the Veteran may file to reopen his claim for service connection for a bilateral hearing loss disability. 

At this time, the weight of the evidence is against the Veteran's claim and the benefit of the doubt provision does not apply.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for a bilateral hearing loss disability is not warranted. 

Tinnitus

The Veteran essentially contends that he has tinnitus due to acoustic trauma during service.  Additionally, at his July 2011 videoconference hearing, the Veteran testified that while hospitalized during service for his spine he told the doctor that he had ringing in the ear.  The Veteran indicated that the doctor told him that it was due to his pain medication.  See Hearing Transcript at page 3.  He also stated that he has had tinnitus ever since that time in service.  See id. at page 7. 

As to Hickson element (1), the Board notes that the March 2009 VA examination report noted a current diagnosis of tinnitus.  Therefore, the first element is met.  

With respect to in-service disease, a review of service treatment records, including the examination report at service discharge, does not reveal complaints consistent with, or a diagnosis of, tinnitus.  Accordingly, Hickson element (2) is not met with respect to disease. 

Turning to an in-service injury, the Board notes that the Veteran has asserted that he sustained acoustic trauma during service.  He contends that he was exposed to noise from Navy aircraft carriers and jet engines.  The Veteran's Form DD 214 shows that he was a systems organization maintenance technician.  The Board notes that the Veteran is competent to give evidence about what he experienced, and acoustic trauma and tinnitus are subject to lay observation.  See e.g., Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006).  Therefore, the Board finds that the Veteran was exposed to hazardous noise during service.  Hickson element (2) is therefore satisfied. 

With respect to crucial Hickson element (3), nexus, the question presented in this case, i.e., the relationship, if any, between the Veteran's tinnitus and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

On VA audiological examination in March 2009, the Veteran reported onset of tinnitus in the mid-1970s and indicated that it had been getting worse ever since service.  As to the inquiry whether the Veteran's hearing loss and tinnitus were due to acoustic trauma during service, the examiner responded "is due to or a result of [i]n-service events."  The rationale for this opinion was that the Veteran experienced significant hearing sensitivity in both ears during service, which was demonstrated by a threshold shift when comparing the Veteran's examination reports at service entrance and separation.  

There is no other opinion which addresses the etiology of the Veteran's tinnitus.  The Board finds the VA examiner's opinion is probative as to the issue of nexus between service and current disability.  Although the Board notes that the VA examination report is not clear inasmuch as the rationale provided appeared to address only the issue of hearing loss and not tinnitus, the examiner is equivocal in his finding that tinnitus was related to service.  In any case, the opinion was based upon review of the claims folder, as well as the credible history reported by the Veteran, and included a rationale for the conclusion reached, and the Board finds this report to be probative.  Accordingly, the opinion is found to carry significant weight.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion).  

Furthermore, the Veteran has consistently reported that he first experienced bilateral tinnitus in service, and it has continued since that time.  As noted herein, the Veteran is competent to describe the circumstances surrounding his in-service noise exposure and to report symptoms of tinnitus as such comes to him through his senses and, as such, requires only personal knowledge rather than medical expertise.  See  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that lay evidence-as, for example, the Veteran's contentions in the present case-does not lack credibility simply because it is unaccompanied by contemporaneous medical evidence).  Moreover, he is credible with respect to his assertions.  The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus.  See Walker, supra; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting the view that a lay person is not competent to provide testimony regarding nexus).  In this case, in-service acoustic trauma is established, and the Veteran has provided a credible report that his tinnitus had its onset in service and continued after service.  The Board concludes that the Veteran's reports are sufficient to establish a positive nexus.  Accordingly, in considering the competent and credible lay statements of record, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that Hickson element (3) has been met.  Service connection for tinnitus is granted.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Service connection for a bilateral hearing loss disability is denied. 

Service connection for tinnitus is granted. 


REMAND

The Board finds that additional development is warranted in this case before a decision may be rendered with regard to the claims for an increased rating for degenerative disc disease with spinal stenosis of the lumbar spine and a TDIU. 

The Board notes that since it has just determined that a claim for a TDIU is part of the pending increased rating claim, the Veteran has not been sent a notification letter in compliance with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. 
§ 3.159(b) (2013).  Therefore, on remand, he should be sent an appropriate notification letter. 

With regard to the claim for an increased rating for service-connected lumbar spine disability, the Veteran testified at his July 2011 hearing that he was in receipt of disability benefits from the Social Security Administration (SSA).  See Hearing Transcript at page 13.  He also indicated that he receives treatment for his spine at Mountain Home VA Medical Center (VAMC).  A review of the claims folders shows that no SSA records have been associated with the claims folder, and only VAMC treatment records dated up to March 2012 have been associated with the claims folder.  As VA is on notice that there are records that may be applicable to the Veteran's claims and because these records may be of use in deciding the claims, these records are relevant and should be obtained.  See 38 C.F.R. § 3.159 (c) (2013). 

Additionally, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013).  See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995).  

The Veteran was last afforded an examination for his lumbar spine disability in March 2010.  During his hearing, the Veteran indicated that his symptoms had worsened since he was examined in March 2010.  See Hearing Transcript at page 16.  He testified that he now had more difficulty performing tasks.  See id.  Therefore, the Board finds that a contemporaneous VA medical examination is warranted for the service-connected lumbar spine disability.  See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination).

Finally, while this case is on remand, the Veteran should be provided an examination to determine the effect of his service-connected disabilities (i.e., lumbar spine disability and tinnitus) on his employability. 

Accordingly, the case is REMANDED for the following actions:

1. Send the Veteran a VCAA compliant duty-to-assist letter on the issue of entitlement to a TDIU. 

2. Obtain all outstanding VA treatment records, to include those from the Mountain Home VAMC.  All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file.  If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file.  

If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claims; and (d) notify the Veteran that he is ultimately responsible for providing the evidence.  38 U.S.C.A. 
§ 5103A(b)(2)  (West 2002); 38 C.F.R. § 3.159(e)(1)  (2013).

3. Obtain any and all SSA records concerning the Veteran. All efforts to obtain the additional evidence must be documented in the paper claims folder/electronic file.  If the search for such records has negative results, documentation to that effect should be included in the claims files/electronic file.  

If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claims; and (d) notify the Veteran that he is ultimately responsible for providing the evidence.  38 U.S.C.A. 
§ 5103A(b)(2)  (West 2002); 38 C.F.R. § 3.159(e)(1)  (2013).

4. Schedule the Veteran for an orthopedic examination in order to determine the current level of severity of his lumbar spine disability.  The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. 

The examiner should describe all pertinent symptomatology associated with the Veteran's lumbar spine disability and must provide the following information:  

a)  All indicated studies, including X-ray and range of motion studies in degrees using a goniometer, should be performed.  The examiner must also specifically report at what point any pain begins.

b)  Tests of joint movement against varying resistance should be performed.  The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner.  If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. 

c)  The examiner must indicate whether the Veteran's lumbar spine disability is so severe so as to result in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician).  If so, the examiner should comment on the duration and frequency of such incapacitating episodes. 

d)  The examiner must comment on any adverse neurological symptomatology caused by the lumbar spine disorder, and determine if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe." 

e)  The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups.  If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.  The examiner should also specifically report at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups.

f)  The examiner must also provide an opinion concerning the impact of the Veteran's lumbar spine disability on the Veteran's ability to work to include whether the Veteran is unemployable because of his service-connected disability. 

5. Schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folder should be made available to the examiner. The examiner should offer an opinion as to whether it is 
as likely as not (a 50 percent or greater probability) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities. 

The examination report must include a complete rationale for all opinions and conclusions reached. 

6. Thereafter, readjudicate the Veteran's claims.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case and allowed an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 

The Veteran has the right to submit additional evidence and argument on the 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).



______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs