Citation Nr: 1337400 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-35 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II with erectile dysfunction and gastroparesis. 2. Entitlement to a compensable disability rating for diabetic retinopathy. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from June 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from August 2009 to July 2013. In the July 2013 Supplemental Statement of the Case, the RO specifically stated that these records were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. In July 2013 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The issue of entitlement to a compensable disability rating for diabetic retinopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's diabetes mellitus, type II has required insulin and restricted diet; regulation of activities due to diabetes mellitus has not been demonstrated. 2. From October 15, 2012, gastroparesis was shown to be manifested by pyrosis and regurgitation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for a separate 10 percent disability rating for gastroparesis have been met from October 15, 2012, but no earlier. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to 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). This information was provided in an October 2006 letter. This letter notified the Veteran of what information and evidence must be submitted by the Veteran and what evidence VA would obtain. This letter included provisions for disability ratings and effective dates. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records have been obtained, as well as post-service VA and private treatment records. The Veteran was afforded VA examinations in October 2006, October 2007 and March 2013. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in October 2006, October 2007 and March 2013 were adequate, as they were predicated on a review of the claims file, contained a description of the history of the Veteran's disability and provided current findings regarding diabetes mellitus and its complications. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board previously remanded this case in July 2013 to obtain VA treatment records. These records were associated with the Veteran's electronic claims file. There has been substantial compliance with the July 2013 remand directive. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis of Claim Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the claims 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Diabetes mellitus is rated according to Diagnostic Code 7913. A 20 percent rating is assignable for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119. A 40 percent rating is assignable for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. "Regulation of activities," is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Id.; see also 61 Fed. Reg. 20,440, 20,446 (May 7, 1996). Medical evidence is required to show that strenuous occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). The rating criteria for a 40 percent evaluation under Diagnostic Code 7913 are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); see also Middleton v. Shinseki, No. 2013-7014, 2013 WL 4105647, at *5 (Fed. Cir. Aug. 16, 2013) (if disability rating criteria are written in the conjunctive, "a veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation" and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria). A 60 percent rating is assignable for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119. A 100 percent rating is assignable for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenous occupational and recreational activities). Id. Note (1) following Diagnostic Code 7913 provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. The Veteran contends that rating higher than 20 percent is warranted for service-connected diabetes mellitus. In his April 2008 Notice of Disagreement, the Veteran indicated that he takes insulin injections five times a day, with a restricted diet and exercise. In the substantive appeal dated in August 2009, the Veteran noted that he takes insulin and was previously put on a diet and exercise. The Veteran stated that he is not able to exercise and that he was told by a doctor to "take it easy." Upon VA examination in October 2006, the Veteran reported that he was diagnosed with diabetes mellitus six years prior. He reported that he experienced ketoacidosis at least twice a week. The Veteran reported that he had no hospitalizations for ketoacidosis or hypoglycemic reactions. He reported that he was on a restricted diet consisting of low cholesterol, low carbohydrate, low fat and minimal sugar. The Veteran denied any restriction of activities related to his diabetes mellitus. The VA examiner noted that the Veteran was currently taking oral hypoglycemics for diabetes mellitus. He reported that the medication seemed not to be effective. The Veteran reported that his blood sugars were still elevated. He denied any side effects of medication. The Veteran reported that he was not currently taking insulin. The Veteran reported that he saw a diabetic care provider at least once a month every three months. Upon VA examination in October 2007, the Veteran reported episodes of ketoacidosis at least twice a week. He reported that his blood sugars were greater than 500 at least 4-5 times and that he had the shakes. The Veteran reported that he was taken to the emergency room several times for elevated glucose and was hospitalized once. The Veteran denied hypoglycemic episodes. The Veteran reported that he checked his glucose daily, and it ranged from 240 to the 400's. The Veteran reported that he was on a restricted diet consisting of low cholesterol, low carbohydrate, low fat and minimal sugar. The Veteran reported that he was on insulin and oral medications. The VA examiner indicated that the Veteran's episodes of hypoglycemic reactions and ketoacidosis did not require hospitalization. The VA examiner indicated that the Veteran visited a diabetic care provider monthly or less often. The VA examiner indicated that the Veteran was not restricted in his ability to perform strenuous activities. Upon VA examination in March 2013, the VA examiner noted that treatment for diabetes mellitus included a prescribed oral hypoglycemic agent and insulin injections more than once per day. The VA examiner indicated that the Veteran visits a diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. The VA examiner noted that the Veteran did not have episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. The VA examiner indicated that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. After a careful review of the record, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's diabetes mellitus, type II. The evidence of record does not reflect that his diabetes mellitus has required insulin, a restricted diet, and the regulation of activities. The evidence of record reflects that insulin and a restricted diet are required, which is contemplated by the 20 percent rating assigned. The evidence of record does not establish that the Veteran's activities are regulated. In October 2006, the Veteran denied any restriction of his activities due to diabetes mellitus. In October 2007 and March 2013, the VA examiners opined that there was no restriction of activities. The Board has considered the Veteran's statements with regard to his disability. The Veteran has indicated that he takes insulin five times a day and is on a restricted diet and exercise. The Veteran has reported that he is not able to exercise and was told by his doctor to "take it easy." The Veteran is competent to report his symptoms and to report what a doctor told him. Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Further, there is nothing of record that would cause the Board to find his statements not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, regulation of activities must be shown by medical evidence. The VA examination reports and VA outpatient medical records of record do not provide any notations or findings indicating that the Veteran has been instructed to restrict his activities by avoiding strenuous occupational and recreational activities due to diabetes mellitus. The medical findings regarding regulation of activities are more probative than the Veteran's lay assertions. The preponderance of the evidence is against a finding that the Veteran has medical evidence showing regulation of activities as defined in Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360 (2007); 38 C.F.R. § 4.120, Diagnostic Code 7913. A 40 percent disability evaluation for diabetes mellitus is not warranted because regulation of activities is not shown. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). There is no evidentiary basis upon which to assign a rating in excess of 20 percent and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. The Veteran's service-connected diabetes mellitus includes erectile dysfunction as a complication. Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated as 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. The October 2007 VA examination noted erectile dysfunction related to diabetes, but the examiner did not address whether there was deformity of the penis. The March 2013 VA examination report indicated that it could not be determined whether there was a penile deformity. As such, the evidence does not show that the Veteran has deformity of the penis, and the criteria for a separate compensable evaluation for erectile dysfunction are not met. The Veteran's service-connected diabetes mellitus also includes the complication of gastroparesis. In this case, gastroparesis is evaluated by analogy to hiatal hernia under Diagnostic Code 7346. A 10 percent evaluation is warranted with two or more symptoms for the 30 percent evaluation. A 30 percent evaluation is warranted with persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. VA treatment records dated in October 2012 reflect that the Veteran reported that he was hospitalized due to gastroparesis. The Veteran reported symptoms of abdominal pain and swallowing which caused intense burning. The March 2013 VA examination reflects that the Veteran reported that he was admittted to the hospital in November 2012 with gastroparesis. The Veteran reported that he lost 40 pounds due to gastroparesis, which he regained. The Veteran reported that he used to vomit several times a day and vomits daily now. He also reported that he eats smaller portions now. Based upon the symptoms reported in the VA outpatient records in October 2012, the Board finds that the Veteran's gastroparesis has been manifested by pyrosis and regurgitation. The Board finds that a 10 percent rating is warranted for gastroparesis from October 15, 2012. A higher evaluation for gastroparesis is not warranted because the record is negative for medical and lay evidence showing substernal or arm or shoulder pain. Id. The Board has also considered the potential applicability of other rating codes for the Veteran's now service-connected gastroparesis. However, no separate or higher evaluation is warranted under any of the other diagnostic codes related to gastrointestinal disorders. The Veteran's May 2013 x-rays showed no obstruction so a rating analogous to Diagnostic Code 7301 is not for application. The Veteran also has not been diagnosed with an ulcer, or required ulcer therapy so Diagnostic Codes 7304-7306 do not apply. The Veteran has not been diagnosed with gastritis, as identified by gastroscope, so Diagnostic Code 7307 does not apply. Although the Veteran has abdominal distress, a higher rating would not be warranted under Diagnostic Code 7319 unless he had diarrhea or alternating diarrhea with constipation, which he has not complained of. The Board also considered Diagnostic Code 8210, which pertains to paralysis of the tenth (pneumogastric, vagus) cranial nerve. According to the medical evidence in the file, gastroparesis is controlled by the vagus nerve. Under this Diagnostic Code, a 10 percent rating is warranted when there is evidence of moderate incomplete paralysis of the tenth cranial nerve. In order to receive a rating of 30 percent, the evidence must show that manifestations of the tenth cranial nerve disability more closely approximate severe incomplete paralysis. In order to receive a rating of 50 percent, the evidence must show complete paralysis. A Note to Diagnostic Code 8210 indicates that the rating is dependent upon the extent of sensory and motor loss to organs of voice, respiration, pharynx, stomach and heart. Since the discussion is centered around gastric problems, the Board will consider the extent of his stomach condition. As discussed above, the Board has determined that a 10 percent evaluation is appropriate based on the Veteran's symptoms of abdominal pain, weight loss, and vomiting. A higher evaluation under Diagnostic Code 8210 would only be warranted where the condition is analogous to incomplete severe paralysis of the tenth cranial nerve. The Board does not find that the Veteran's gastric symptoms appear severe. Overall h`e lost weight, which he reported gaining back at his March 2013 VA examination, but his primary symptoms appear to be pyrosis and regurgitation, which are more appropriately rated as analogous to a hiatal hernia. Resolving reasonable doubt in the Veteran's favor, the Board concludes that a separate 10 percent rating, but no higher, is warranted for gastroparesis from October 15, 2012. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. With respect to the first prong of Thun, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability on appeal with the established criteria found in the rating schedule for his disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration. As noted above, any functional limitation is already contemplated in the ratings currently assigned. There is no evidence in the medical records of an exceptional or unusual clinical picture. Because the schedular rating criteria are adequate to rate the Veteran's diabetes mellitus, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. The Board therefore concludes that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Total Rating Based Upon Individual Unemployability (TDIU) When entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted, and the evidence does not show that the Veteran's diabetes mellitus has caused unemployability. The March 2013 VA examiner found that the Veteran's diabetes mellitus impacted his ability to work, but also stated that non-service-connected disabilities such as a right leg fracture in 1991 affected him. The examiner did not find that the Veteran was unemployable. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER A disability rating in excess of 20 percent for type II, diabetes mellitus is denied. A separate 10 percent rating for gastroparesis is granted from October 15, 2012, but no earlier, subject to the laws and regulations governing the payment of monetary benefits. REMAND At his March 2013 VA examination for diabetes mellitus, the examiner found that the Veteran had diabetic retinopathy. The Disability Benefits Questionnaire (DBQ) stated that if diabetic retinopathy was diagnosed, the examiner should fill out the Eye DBQ as well. The examiner did not do this. Retinopathy is rated according to Diagnostic Code 6009. The General Rating Formula for Diagnostic Codes 6000 through 6009 provides that a compensable rating is assignable with incapacitating episodes having a total duration of at least one week, but less than 2 weeks, during the past 12 months. 38 C.F.R. § 4.79, Diagnostic Code 6009. For the purposes of Diagnostic Code 6009, an "incapacitating episode" is defined as a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Id. The VA outpatient records and VA examinations do not show any findings of incapacitating episodes due to diabetic retinopathy. However, the March 2013 VA examiner was supposed to fill out the Eye DBQ, which addresses the rating criteria for Diagnostic Code 6009. On remand, a VA examination for diabetic retinopathy is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an eye examination with an ophthalmologist or optometrist. The purpose of the examination is to determine the current severity of the Veteran's diabetic retinopathy, and its impact on his employability and daily activities. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must state whether the Veteran experiences incapacitating episodes (a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider) due to his diabetic retinopathy, and if so, state their total duration during the past 12 months. d) In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination, as noted above. 2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, 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 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). ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs