Citation Nr: 1338300	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  08-17 050	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of a radical prostatectomy.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran had active military service from November 1964 to March 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  

In August 2008, the Veteran testified at a hearing before a decision review officer at the RO.  In September 2010, the Veteran thereafter testified at a hearing before the undersigned.  Transcripts of the hearings have been associated with the claims file. 

In September 2011, the Board remanded the above issues for additional development.

The claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 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.


FINDING OF FACT

The most probative evidence of record shows that the Veteran's back disability did not have its onset during, and is not related to, service; and arthritis of the back did not manifest itself to a compensable degree within one year of service.



CONCLUSION OF LAW

A back disability was not incurred in or aggravated by military service and arthritis of the back may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Under 38 U.S.C.A. § 5102, VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether he has veteran status.  

Next, the Board finds that a letter dated in September 2006, which was prior to the August 2007 rating decision, along with letters dated in September 2011, November 2011, and December 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the September 2012 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006).  The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decisions, the statement of the case, the supplemental statements of the case, and the Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the September 2010 Board hearing, the Acting VLJ noted the elements of the claim that were lacking to substantiate the claim.  The Veteran was assisted at the hearing by his accredited representative and his representative and the VLJ asked questions to draw out the nature of the in-service injury as well as his current disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim.  Therefore, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As to the duty to assist, VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service records from the Social Security Administration (SSA) as well as from the VA Medical Center (VAMC) in Jackson, Mississippi, in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

The Veteran was also provided with a VA examination in October 2011 and a February 2012 addendum medical opinion that the Board finds are adequate to adjudicate the claim and substantially comply with the September 2011 remand instructions.  The Board has reached this conclusion because after a review of the record on appeal and after taking a detailed medical history from the claimant as well as after an examination, the examiners provided an opinion as to the diagnoses and origins of the Veteran's back disability based on citation to relevant evidence found in the claims file.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal of the claim of service connection for a back disability.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Analysis

The Veteran contends that his current back disability is a result of his time on active duty and in particular that injury he sustained in an in-service motor vehicle accident.  As to the motor vehicle accident, the Veteran told the October 2011 VA examiner that while traveling in Germany on the autobahn his car was struck by a truck and this accident led to his being hospitalized for a week and his thereafter being treated with light duty and anti-pain medication for the rest of his military service.  It is also requested that the Veteran be afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed at 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated chronic diseases, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995).  

As to a current disability, post-service medical records show the Veteran's complaints of low back pain thereafter diagnosed as, among other things, lumbosacral spine stenosis, degenerative disc disease, facet arthropathy, and spondylosis.  This is evident in a VA treatment records dated in November 2007, a VA magnetic resonance imaging evaluation (MRI) and x-ray dated in November 2007, and a VA examination dated in October 2011. 

As to service incurrence under 38 C.F.R. § 3.303(a), a July 1965 service treatment record documented the Veteran's complaints of pain in his low back, which was diagnosed as a low back strain following an automobile accident.  Moreover, the Veteran responded "Yes" when asked at his December 1969 separation examination if his medical history included back trouble.  Furthermore, the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as being in a motor vehicle accident and observable symptoms of the back disability (i.e., pain and limitation of motion) since the July 1965 motor vehicle accident while on active duty, even when not documented in his medical records.

Nonetheless, the Board finds that evidence still weighs against the Veteran's claim.  As to the service treatment records, the Board notes that no other service treatment record generated during the Veteran's next five years of military service documented complaints and/or treatment for a back disability except for the history reported at the separation examination.  They are likewise negative for any evidence that his back was being treated with light duty and/or anti-pain medication.  See Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) ("[T]he Board may use silence in the [service medical records] as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the [service medical records]." citing to Fed. R. Evid. 803(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded).).  

As to the history reported at the December 1969 separation examination, the Board finds, as the separation examiner must have found, that any problem the Veteran may have had with his back earlier on in-service resolved by the time he separated from military service because, despite the positive history, examination of the spine was normal.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  

As to the lay statements from the Veteran, while he is competent to report on his symptoms of the back disability because this requires only personal knowledge as it comes to him through his senses, the Board finds more compelling the service treatment records which are negative for any evidence of the back being treated with light duty and/or anti-pain medication as well as the normal December 1969 separation examination, than his lay claims.

Accordingly, the Board finds that the most probative evidence of record weighs against finding the Veteran is entitled service connection based on in-service incurrence despite the documented 1965 in-service treatment low back pain following a motor vehicle accident and despite the Veteran's claims of having problems with observable symptoms of this disability since this in-service accident.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. § 3.309(a), the record does not show the Veteran being diagnosed with arthritis in the back, or having onset of that chronic disease to a compensable degree, in the first post-service year.  In fact, the record does not show a diagnosis of arthritis in his back until decades after the Veteran's separation from active duty and there is no indication that it had its onset within a year of separation.  Accordingly, entitlement to service connection for a back disability must be denied under the presumptive provisions pertaining to chronic diseases.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.  

As to continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds the normal separation examination along with the length of time between the Veteran's separation from active duty in 1970 and his first complaints and treatment for a back pain in 2003, thereafter diagnosed as lumbosacral spine stenosis, degenerative disc disease, and facet arthropathy in 2007, is evidence against a finding of continuity.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

In this regard, the Board acknowledges, as it did above, that the Veteran is competent to assert what he feels; for example, the claimant is competent to report that he had problems with back pain and limitation of motion since service.  The Board also acknowledges that others, including the Veteran's representative, are competent to give evidence about what they can see such as the claimant appearing to be in pain.  However, upon review of the claims file, the Board finds that these lay assertions that the claimant has had his current back disabilities since service are not credible.  In this regard, these lay claims are contrary to what is found in the service treatment records, including the fact that none of the post-July 1965 service treatment records, including the December 1969 separation examination, document symptoms of a back disability or diagnose a back disability.  Again, all of these are factors weighing against the Veteran's claims.

Likewise, the post-service treatment records do not document complaints or treatment for a back disability until decades after his separation from military service.  In fact, the post-service record includes a January 1997 lumbosacral spine x-ray which is normal.  Again, such evidence weighs against the theory of continuity of symptomatology.  

In these circumstances, the Board gives more credence and weight to the objective evidence of record which contradicts the lay assertions.  Therefore, entitlement to service connection for a back disability based on continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(b).

As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that a competent and credible opinion finding a causal association or link between any of the Veteran's current back disabilities and an established injury, disease, or event of service is not of record.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d).  The most probative medical opinion of record, in the form of the opinions provided by the October 2011 and February 2012 VA examiners, attests to the contrary.  

Specifically, the October 2011 VA examiner, after a review of the record on appeal and an examination of the Veteran, opined as follows:

The patient's history as provided today is not congruous with the established facts.  There is no notation in the record that he was hospitalized in Germany.  There is only a single note from July 1965 that states he had low back pain from a motor vehicle accident.  There is no other clinical note describing a complaint of back pain.  There is no evidence that he was on any narcotic or similar agent every day in the military since the accident.  His exit physical examination in December 1969 finds no problem with his back or any other aspect of his physical examination.  There are no sheets [i.e., service treatment records] showing he was on limited duty because of his back . . . [and] no copies of reports from any German hospital are found.  [There are] no copies of reports [i.e., post-service treatment records] until the 1990s are found.  Radiograph of the lumbosacral spine in 1997 is normal.  Radiograph of the lumbosacral spine in 2003 only shows straightening of the lumbar lordotic curvature and mild demineralization.  The findings on magnetic resonance imaging in 2007 are not due to the [in-service] automobile injury or any other injury to the back that may have occurred while he was on active duty or within several years of leaving active duty.  These findings are likely to be less than 10 years old.  The back is not a static organ system.  The changes identified on magnetic resonance image are not stable for over 40 years.  The [Veteran] would have developed this picture as a result of living for 64 years, and it is highly unlikely that, had he never served in the military, the magnetic resonance image would be any different.  It is my opinion that the [Veteran's] back complaint is not related to or caused by any event that may have occurred in the military.  [Emphasis added]

Likewise, the February 2012 VA examiner after a review of the record on appeal and an examination of the Veteran opined as to the appellant's claim that his current back disability is due to a July 1965 motor vehicle accident while on active duty that given the in-service and post-service medical history that it is less likely as not that any currently diagnosed back disability is related to his active military service because these is no documentation to support such a conclusion.  

These medical opinions are not contradicted by any other medical opinion of record.  The opinions are persuasive as they find support in the record and contain a sufficient explanation so as to allow the Board to make a decision on the claim.

As to the various lay statements from the Veteran and his representative regarding the appellant's back disability being due to his military service, the Board accords their opinions no evidentiary weight as the question is medically complex in nature and requires a certain amount of medical expertise to answer.  The Board also finds more probative the opinion by the VA examiners.

In summary, the most probative evidence of record shows that the Veteran's back disability did not have its onset during, or was caused by, his military service.  Because the weight of the competent and credible evidence is against finding a causal association or link between the post-service back disability and an established injury, disease, or event of service origin, the Board finds that the claim must be denied based on the initial diagnosis of the disability after service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d).

Accordingly, entitlement to service connection for a back disability must be denied because the weight of the evidence is against the claim.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  However, because the preponderance of the evidence is against the claim, the Board finds that doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to service connection for a back disability is denied.


REMAND

As to the claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of a radical prostatectomy, the Board remanded this claim in September 2011 because, while the August 2006 VA examiner adequately addressed the Veteran's rectal injury, he (1) failed to address whether the diagnosed incontinence and erectile dysfunction were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA at the March 2006 radical prostatectomy; (2) failed to address whether the Veteran experienced any disabilities of the back, leg, or thigh that could be attributed to the March 2006 radical prostatectomy; (3) failed to provide an inclusive list of all other disabilities that can be etiologically linked to the March 2006 radical prostatectomy and provide an opinion as to each disability whether it was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; (4) failed to provide an opinion as to whether any of the diagnosed residual disabilities was an event not reasonably foreseeable based on what a reasonable health care provider would have foreseen; and (5) failed to provide an opinion as to whether the risk of the residual disability was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.  As to all the opinions, the examiner was specifically directed to offer a well-reasoned and detailed opinion.

While the post-remand record shows that the Veteran was provided with a VA examination in February 2012, the Board does not find the medical opinions provided by that examiner adequate because they either did not fully respond to the above questions or the examiner did not provide an adequate explanation for the opinion he provided.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."); Stegall, 11 Vet. App. at 268 (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance).  

Therefore, the Board finds that another remand to obtain answers to the Board's questions is required.  38 U.S.C.A. § 5103A(d); Barr, 21 Vet App at 303 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

The record shows that the Veteran may receive ongoing treatment from the Jackson VAMC.  Therefore, the Board finds that, while the appeal is in remand status, more recent treatment records should be obtained and associated with the claims file.  See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). 

Accordingly, this issue is REMANDED to the RO/AMC for the following actions:

1.  Associate with the claims file, physically or electronically, all of the Veteran's post-September 2012 treatment records from the Jackson VAMC.  All actions to obtain the requested records should be documented fully in the claims file.

2.  After undertaking the above development to the extent possible, obtain an addendum to the February 2012 VA examination by a physician with sufficient medical expertise.  The claims file, along with paper copies of all treatment records that are found in virtual VA that the physician does not have accesses too, must be provided to the physician.  After a review of the claims file, the physician must provide answers to the following questions:

a.  What are all the Veteran's residual disabilities from the radical prostatectomy conducted at the Jackson VAMC in March 2006?

Note 1:  In providing an answer to the above question, the physician must state, among other things, whether it is at least as likely as not that the Veteran's residuals include the intra-operative rectal injury status post temporary diverting loop ileostomy, incontinence, and erectile dysfunction diagnosed by the August 2006 VA examiner as well as any back, hip, and/or thigh disability as complained of by the Veteran.  If the Veteran's residuals do not include a back, hip, and/or a thigh disability as complained of by the Veteran, the examiner should state so.  If the Veteran's residuals include a back, hip, and/or a thigh disability as complained of by the appellant, the examiner should also provide the diagnosis of that disability.

b.  As to each residual, including the intra-operative rectal injury status post temporary diverting loop ileostomy, incontinence, and erectile dysfunction, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? 

c.  As to each residual, including the intra-operative rectal injury status post temporary diverting loop ileostomy, incontinence, and erectile dysfunction, was it proximately caused by an event not reasonably foreseeable based on what a reasonable health care provider would have foreseen? 

d.  As to each residual, including the intra-operative rectal injury status post temporary diverting loop ileostomy, incontinence, and erectile dysfunction, was the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures (as opposed to what was actually disclosed)?

A detailed explanation for all conclusions reached by the examiner must be provided.  In this regard, citations to the record or relevant medical principles should be included as necessary to explain the opinion.

3.  After undertaking any other needed development, readjudicate the claim.  If the benefit sought on appeal is not granted in full, the Veteran should be provided a supplemental statement of the case that includes notice of all relevant the laws and regulations as well as citation to all evidence received since the issuance of the September 2012 supplemental statement of the case.  A reasonable period of time should be allowed for response before the appeal is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs