Citation Nr: 1339075 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 09-27 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. Entitlement to a higher initial rating, greater than 20 percent for patellofemoral pain syndrome of the right knee. 3. Entitlement to a higher initial rating for Posttraumatic Stress Disorder (PTSD), greater than 50 percent prior to September 24, 2008, and greater than 70 percent thereafter. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 2004 to December 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran appealed from the denial of service connection for a respiratory disorder and from the initial ratings assigned for a right knee disorder and PTSD, and the matters are now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system include records of VA treatment. Such records have been considered as part of the present appeals. The Veteran had an informal conference at the RO in April 2013. At that time, he stated that an award of 70 percent for his PTSD, along with a grant of a total rating based on unemployability, would satisfy his PTSD appeal. A May 2013 rating decision then awarded such benefits and the PTSD issue was then not addressed in the supplemental statement of the case as the RO considered this a full grant of the benefit sought on appeal. However, since the 70 percent rating was assigned effective September 2008 and the Veteran had appealed the initial rating for PTSD, it is not clear whether this was, in fact, a full grant. Therefore, the Board will continue to address the issue as on appeal. This does not prejudice the Veteran since the RO fully considered the claim in the 2013 rating decision. The issue of entitlement to service connection for a respiratory disorder 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 entire initial rating period, patellofemoral pain syndrome of the right knee has been productive of episodes of pain with locking, but no functional limitation of motion. 2. Prior to September 24, 2008, PTSD symptoms included impaired memory, disturbed sleep with nightmares, and difficulty concentrating. 3. Since September 24, 2008, PTSD symptoms have included suicidal ideation, impaired impulse control, some difficulty in adapting to stressful circumstances, difficulty concentrating, and poor family relations. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for patellofemoral pain syndrome of the right knee have not been met or more nearly approximated at any time during the initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5258 (2013). 2. The criteria for an initial rating in excess of 50 percent for PTSD have not been met or more nearly approximated at any time during the initial rating period prior to September 24, 2008. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2013). 3. The criteria for an initial rating in excess of 70 percent for PTSD have not been met or more nearly approximated at any time during the initial rating period since September 24, 2008. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in November 2007, prior to the initial adjudication of the increased rating claim on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. An additional letter was sent in May 2012. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of VA treatment. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by VA examinations in December 2007, July 2008 and June 2012, during which examiners conducted physical and psychiatric examinations of the Veteran, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. 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); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. Initial Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's appeals for higher initial ratings for the knee and PTSD are appeals from the initial assignments of disability ratings in April 2008. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The foregoing discussions have considered the applicability of staged ratings for both of the disabilities on appeal. Initial Rating for Patellofemoral Pain Syndrome of the Right Knee In the April 2008 decision on appeal, the Veteran was awarded service connection for patellofemoral pain syndrome of the right knee and granted an initial evaluation of 20 percent effective December 28, 2006. The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5258 (2013). Under this Code, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A higher rating for the knee is not available under this Code, however, the Board also considers whether a higher rating is available under an alternative applicable Code. To that end, under DC 5256 a rating of 30 percent is warranted on favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees. DC 5257 provides a 30 percent rating for severe recurrent subluxation or lateral instability of the knee. Under DC 5260, flexion of the leg limited to 15 degrees is rated 30 percent disabling; and under DC 5261, extension of the leg limited to 20 degrees is rated 30 percent disabling. Finally, DC 5262 provides that malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. 38 CFR § 4.71a. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to pain, weakness, premature or excess fatigability, and incoordination. DeLuca, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The Board finds that at no time during the period on appeal has the Veteran's right knee disability warranted a rating of greater than 20 percent under any of the applicable Codes. Specifically, on VA examination in December 2007 the Veteran's right knee range of motion was from zero to 140 degrees with only slight pain and stiffness at the limits of extension, and there was no additional limitation of motion with repetitive use. Right knee x-ray imaging showed no significant findings. The Veteran endorsed symptoms including giving way and locking. An August 2007 VA treatment report showed no deformity of the right knee and internal derangement was ruled out. A September 2007 MRI of the knee showed a small tear of the posterior horn of the medial meniscus with mild extrusion of the anterior horn. Small joint effusion was also seen, as was mild medial compartment degenerative changes. On VA examination in June 2012, the Veteran's range of right knee motion was from zero to 140 degrees, without any objective evidence of painful motion and without further limitation of motion following repetition. The right knee was stable, without subluxation or dislocation - though the Veteran did endorse joint locking and pain. After reviewing all the evidence, lay and medical, the Board finds that for the entire appeal period, the evidence shows that the Veteran's right knee disability has not been greater than 20 percent disabling under any of the Codes applicable to the knee. The knee is not ankylosed, does not have severe recurrent subluxation or lateral instability, and the functional range of motion has been essentially normal - including when considering factors such as painful motion, weakness, premature or excess fatigability, and incoordination. Furthermore, radiographic imaging has verified that there are no significant findings referable to the right knee, including malunion of the tibia and fibula. With regard to the Veteran's lay statements contending that the knee is more than 20 percent disabling, the Veteran is competent to report on right knee symptomatology which is capable of lay observation. However, even in his statements to VA the Veteran has not endorsed symptoms which would warrant a rating of greater than 20 percent. Accordingly, the Board concludes that the Veteran's service-connected right knee disability has been 20 percent disabling throughout the entire initial rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Initial Rating for PTSD In the April 2008 decision on appeal, the Veteran was awarded service connection for PTSD and granted an initial evaluation of 30 percent. Pursuant to subsequent rating decisions within the appeal period, the Veteran is now rated as 50 percent, effective December 28, 2006, and as 70 percent from September 24, 2008. The Veteran's PTSD is rated under DC 9411 which relies on the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130 (2013). Pursuant to the General Formula, occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, is rated as 50 percent disabling. 38 C.F.R. § 4.130. Evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships, warrants a 70 percent rating. Id. Finally total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, calls for a 100 percent (i.e. total) rating. Id. In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scores as one component of the overall disability picture. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Initial Rating for PTSD, Prior to September 24, 2008 The Board finds that the Veteran's PTSD was not greater than 50 percent disabling prior to September 24, 2008. On VA examination in December 2007, the Veteran reported poor sleep with nightmares, and frequent episodes of memories of the things that happened in Iraq. The Veteran said he was hypervigilant and avoided watching the news on TV or war movies as this can bring back memories of the war. The examiner found no major disorder of speech, and thought processes were coherent and not tangential. Affect was full and appropriate, and there was no delusional thinking, hallucinations, suicidal ideation, or homicidal ideation. The Veteran's intellectual functioning and memory were intact and average. The Veteran did have some poor socialization, and "his functioning is affected by the symptoms of post traumatic stress disorder." The Veteran's GAF score was 58. In a VA psychological treatment note of April 2007, the Veteran reported sleeping disturbances, memory problems, difficulty concentrating, intrusive thoughts, exaggerated startle response, and emotional numbing. The Veteran denied suicidal ideation and his GAF score was 50. The Veteran stopped seeking VA treatment of PTSD because he felt that he did not "know where to start and [he had] so much going on." In January 2008, on returning to VA treatment, the Veteran reported nightmares, flashbacks, difficulty falling and staying asleep, memory and concentration disturbances, avoidance symptoms, irritability and anger. VA examination in July 2008 revealed that he had attempted to return to schooling after separation from service but had to stop due to difficulty concentrating. The Veteran continued to endorse essentially the same symptoms previously endorsed including poor sleep, nightmares, intrusive thoughts, and exaggerated startle response. On examination, psychomotor activity was within normal limits, and there was no delusional thinking, hallucinations, suicidal ideation or homicidal ideation. Sustained concentration was poor and the GAF score was 60. VA received a letter dated September 24, 2008 from one of the Veteran's VA psychiatrists in which he stated that the Veteran had demonstrated hyperarousal and severe social avoidance behaviors. Symptoms had become chronic and severe, to include intrusive thought, "terrifying nightmares three or four nights a week," poor impulse control, avoidance behavior, restricted affect and feelings of a foreshortened future. The Veteran's symptoms were severe enough that he had chosen to no longer live with his wife and children. The Veteran's GAF score was between 38 and 47. Based on the foregoing, evidence regarding the Veteran's PTSD symptoms did not reflect that such symptomatology more closely approximated a rating higher than 50 percent prior to VA's receipt of the September 2008 letter from the Veteran's psychiatrists which indicated a GAF score as low as 38. GAF scores between 40 and 31 indicate some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). See Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Prior to that time, the Veteran did not have suicidal ideation, his speech was normal, there was no evidence of near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, spatial disorientation, or an inability to establish and maintain effective relationships. Though there was some evidence of impaired impulse control and poor concentration, the Veteran's overall disability picture did not reach the level of 70 percent rating. Initial Rating for PTSD, from September 24, 2008 The Board finds that the Veteran's PTSD was not greater than 70 percent disabling since September 24, 2008 as during that period the Veteran did not demonstrate symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, his own occupation, or his own name. In a VA treatment note of February 2009, it was reported that the Veteran continued to experience significant irritability, anxiety, reexperiencing, and avoidance. The Veteran admitted, for the first time of record, to suicidal ideation, but denied any specific intent. The Veteran had recently started working, which was stressful. Attention and concentration were fair, but the Veteran was still hypervigilant. Memory was mildly impaired and mood was anxious but stable. There was no evidence of psychosis or immediate dangerousness and the Veteran's GAF score was 50. In March 2009 the Veteran reported difficulty with memorization and slurring of his words. He was also reportedly single, indicating that he was no longer married, though he was still employed full time. Objectively speech was fluent and judged to be within normal limits. VA outpatient mental health treatment records throughout 2010-2011 show similar complaints and findings. On VA examination in June 2012, the Veteran's GAF score was 55 and his level of occupational and social impairment resulted only in occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran did not exhibit symptoms which rendered him in persistent danger of hurting himself or others, grossly impaired thought process or communication, or memory loss of the names of close relatives, his own occupation, or his own name. VA mental health outpatient records for 2012-2013 show continued complaints of irritability, anxiety, depression, and sleep disturbances, with no psychotic behavior or dangerousness. It was noted that he was mostly stable. GAF scores ranged from 34 to 40. In short, while the Veteran's symptoms since September 24, 2008 have been severe, they have not more closely reflected the criteria for an initial rating greater than 70 percent. A 100 percent rating is based, predominantly, on total occupational and social impairment, due to symptoms such as those described in the rating criteria. Most telling that the Veteran did not meet such criteria is the fact that at the time of his June 2012 VA examination, the Veteran had none of the symptoms indicated in the criteria for a 100 percent rating under 38 C.F.R. § 4.130. Accordingly, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for extraschedular ratings is warranted for the service-connected right knee disability or PTSD. 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 Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the Veteran's service-connected disabilities above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the Veteran's knee disability on the basis of functional range of motion and episodes of locking, pain, and effusion; thus, the demonstrated manifestations - namely no loss of motion, with locking and joint pain - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. With regard to the Veteran's PTSD claim, the schedular rating criteria under Diagnostic Code 9411 specifically provides for disability ratings based on a combination of history and clinical findings. In this case, the evidence reflects that the Veteran's PTSD symptomatology includes nightmares, sleep disturbance, intrusive thoughts, anger, irritability, excessive startle response, and decreased concentration. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. Furthermore, the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2013). Additionally, the Board has considered GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by the acquired psychiatric disorder. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's service connected right knee disability and his PTSD, and referral for consideration of one or more extra-schedular evaluations is not warranted. Finally, the matter of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised, separately adjudicated, and granted by a decision of the RO in May 2013 which is not the subject of the immediate issues on appeal. Thus the matter of an inferred claim for TDIU is not for consideration. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial rating in excess of 20 percent for patellofemoral pain syndrome of the right knee is denied. Initial ratings in excess of 50 percent prior to September 24, 2008, or in excess of 70 percent thereafter for PTSD are denied. REMAND Service Connection for a Respiratory Disorder The Veteran, who was deployed to southwest Asia, contends his current respiratory disorder had its onset during service, and he has specifically noted that during active duty he was prescribed the use of inhalers to address respiratory symptomatology. Service treatment records reflect complaints of shortness of breath, particularly when marching, and although no pathology was identified, the Veteran was prescribed an inhaler to use and he was instructed to return if symptoms became worse. Treatment and VA examinations have failed to identify any pathology associated with a respiratory disorder; however on VA examination in December 2007 pulmonary function testing was between 52 and 27 percent of predicted values and the examiner opined that these results were "abnormal with moderate-to-severe obstructive defect." Similar testing on VA examination in July 2008 was between 42 and 50 percent of predicted values. In neither case was a pathology identified - however in neither case was the reduced pulmonary function testing reconciled with the lack of underlying pathology. The Board finds that a new VA examination should be conducted, and the results of such examination must be adequately described so that the Board can properly assess whether the Veteran has an underlying pathology for which service connection may be established. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination of the lungs. Following thorough testing and evaluation, the examiner should address the following: a. Identify all current diagnoses referable to the respiratory system. b. For all abnormal laboratory findings, describe the underlying cause of such abnormality. For example, malingering on the part of the Veteran, acute underlying pathology, chronic physical malformation, etc. c. For each diagnosis identified, state whether the diagnosis is at least as likely as not (i.e., to at least a 50 percent degree of probability) related to service, to include in-service use of an inhaler. 2. After completing all indicated development, readjudicate the claim for service connection for a respiratory disorder in light of all the evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. 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). ______________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs