Citation Nr: 1341004 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 12-02 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a left leg disorder. 2. Entitlement to service connection for a left leg disorder. 3. Entitlement to an initial compensable evaluation for asbestosis. REPRESENTATION Appellant represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1959 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran was initially represented by the American Legion, but he changed representation to Stephen Vaughn in December 2010. The appropriate VA forms are associated with the claims file, and the Board acknowledges this change. As will be discussed below, the Decision Review Officer (DRO) issued another rating decision in October 2012, which granted the Veteran's claim for service connection for asbestosis and assigned a noncompensable evaluation effective from April 28, 2010. In May 2013, the Veteran's representative submitted a notice of disagreement with that decision along with additional medical records and a waiver of the RO's initial consideration of such evidence. However, a statement of the case has not been issued, and the Board is required to remand, rather than refer, this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that there are VA medical records dated from November 2010 to February 2012. These records were not considered in the January 2012 statement of the case (SOC); however, in April 2013, the Veteran's representative submitted a waiver of the RO's initial consideration of all evidence received subsequent to the case being certified to the Board. The remaining documents are either duplicative or irrelevant to the issue on appeal. The issue of entitlement to a higher initial rating for asbestosis 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. The claim for service connection for a left leg disorder was previously denied by the RO in October 1996 and May 2008 rating decisions. The Veteran was informed of those rating decisions and of his appellate rights, but he did not appeal either determination. There was also no evidence relevant to the claim received within one year of the October 1996 and May 2008 determinations. 2. The evidence received since the May 2008 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left leg disorder. 3. The Veteran has not been shown to currently have a current left leg disorder that manifested in service or within one year thereafter or that is related to his military service. CONCLUSIONS OF LAW 1. The May 2008 rating decision that most recently denied service connection for a left leg disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left leg disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. A left leg disorder was not incurred in active service, and arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in May 2010, prior to the decision on the claim in August 2010. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the May 2010 notice letter about the information and evidence that is necessary to reopen a previously denied claim as well as substantiate his claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. He has not identified any available, outstanding evidence that is pertinent to the claim being decided herein. The Veteran was also afforded a VA examination in December 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board acknowledges that the Veteran's representative contended in the VA Form 9 that the December 2011 VA examination was inadequate. Specifically, the representative stated that the examiner subjectively used the Veteran's age as a rationale for his negative opinion. He also stated that the examiner improperly noted that the Veteran had completed three years of service after his in service injury, which he claimed was irrelevant because the Veteran was not claiming that his left leg disorder made him unfit for service. Upon review, the Board finds that the December 2011 examination was adequate. First, this examination was predicated on a review of the Veteran's medical history as well as on a physical examination. The examiner considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated. After evaluating the Veteran and diagnosing him with bilateral knee arthritis, the examiner opined that it was less likely than not that the Veteran's left leg disorder was related to his in-service injury. In his rationale, the examiner stated that the contusion of the left leg, which the Veteran was diagnosed with in service, was the type of injury that would be expected to resolve without residuals in a matter of weeks. He then stated that the fact that the Veteran had completed three years of service after this injury supported that opinion. He also opined that the Veteran had an equal degree of bilateral knee arthritis that was consistent with the wear and tear attributed with age progression and obesity. The Board finds that the examiner provided proper, relevant opinions in this case. He used his education, training, and experience to determine that the likely etiology of the Veteran's knee arthritis was due to normal age progression and obesity. The Board finds that this was an adequate medical opinion with accompanying rationale and not, as the Veteran's representative stated, a subjective use of the Veteran's age to deny the claim. Rather, he used those factors to point to a more likely etiology based on how a disability generally presents or develops. The examiner also noted that the Veteran had bilateral arthritis, to an equal degree, as opposed to arthritis at the site of the left leg in-service injury only. Thus, he did not merely rely on the Veteran's age or weight. Finally, while the examiner did note that the Veteran completed three years of active duty service following his in-service injury, the Board finds that noting this fact acts as a rationale to show support for his statement that contusions of the type the Veteran had in service would be expected to resolve within a matter of weeks. For these reasons, the Board finds that the December 2011 VA examination was adequate. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Analysis The Veteran submitted a claim for service connection for a left leg disorder in August 1996. That claim was denied in an October 1996 rating decision because the RO found no evidence showing that the Veteran had been diagnosed with a current left leg disorder. The Veteran was notified of that decision and of his appellate rights, but he did not appeal. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Moreover, there was no evidence submitted within one year of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the Board finds that the October 1996 rating decision is final. The Veteran submitted another claim for service connection for a left leg disorder in November 2007, which was denied by the RO in a May 2008 rating decision. Specifically, the RO found that new and material evidence had not been submitted to reopen the previously denied claim. It was noted that there was evidence of a contusion on his left leg in July 1961 after an object fell off a conveyor belt and hit his leg, yet his separation examination was negative. Post-service medical records also documented leg pain, but there was no diagnosis rendered. The Veteran was notified of that decision and of his appellate rights, but he did not file a notice of disagreement. There was also no evidence submitted within one year of the rating decision. Therefore, the Board finds that the May 2008 rating decision is also final. In May 2010, the Veteran filed an application to reopen the claim for service connection for a left leg disorder. During the course of this appeal, he submitted a statement from his private certified nurse practitioner, J.A. (initials used to protect privacy), stating that the Veteran's left leg disorder was due to his in-service injury. The Veteran was also afforded a VA examination in connection with his claim in December 2011, which diagnosed the Veteran with bilateral knee arthritis. This evidence was not considered at the time of the May 2008 rating decision, and as previously noted, the RO had denied the prior claim because the evidence did not establish a current diagnosis or disability of the left leg or a nexus to the Veteran's military service. Therefore, the Board finds that new and material evidence has been received to reopen the Veteran's claim for service connection for a left leg disorder. The Board finds that there is no prejudice to the appellant by the Board proceeding to address the merits of this claim in this decision. As previously discussed, the Board has granted the claim in the decision below, and thus, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. The Veteran has contended that he has a current left disorder that was caused by an injury in service when a conveyor belt loaded with 155 gun rounds was knocked over onto his left leg. He has stated that he was told that he had irreparable nerve damage at the time of the injury and was placed in a cast for a long period of time. He also stated that he was placed on permanent light duty as a result of his injuries. The Veteran's service treatment records dated in July 1961 show that the Veteran was treated for a contused calf and left leg after an object fell off a conveyor belt and hit his leg. An x-ray of the left leg and knee did not reveal any bony abnormality. In December 1961, the Veteran was documented as having pain and numbness of the left leg since the injury in July. However, there were no findings upon examination. The Veteran had full motion with no atrophy. He was also seen in March 1962 with complaints of numbness in the left calf at the site of the old injury, yet an examination was negative. In December 1962, the Veteran reported that his leg pain persisted; he was given an exemption from running. In December 1962, a physician also assigned a physical profile of L-2 on the Veteran's PULHES profile. PULHES represents the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The "PULHES" profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). In March 1963, the Veteran's service treatment records show that he reported persistent pain in both legs. The physician noted that there was no way to prove conclusively whether there was or was not "trouble." The Veteran was again assigned an L-2 on his PULHES profile, and his doctor ordered no prolonged marching or running. Nevertheless, a May 1964 separation examination revealed normal lower extremities, and he was assigned an L-1 on his PULHES profile. The Veteran also denied having a medical history of arthritis; bone, joint, or other deformity; a trick or locked knee; and, neuritis. The examiner noted that there were no current medical problems. The Veteran's VA medical records show that the Veteran reported chronic left knee pain in July 2010. The Veteran submitted a letter in support of his claim dated in October 2010 from one of his healthcare providers, J.A., CNP (initials used to protect privacy). This letter noted that the Veteran had been a patient of the practice since December 2006. It stated that, after reviewing the Veteran's records from the practice and the "limited records" the practice had from the VA Clinic, it was more likely than not that the Veteran's left leg disorder was due to his in-service injury. No rationale was provided. The Veteran was afforded a VA examination in December 2011. At that examination, the Veteran reported experiencing pain in his left leg and knee since his in-service injury. Following this examination, the examiner diagnosed the Veteran with bilateral arthritis of the knees. He opined that the Veteran's left knee and leg condition was less likely than not related to his in-service injury. In his rationale for his opinions, he noted that the Veteran's in-service contusion was the type of injury that would be expected to resolve without residuals in a matter of weeks. He also noted that the Veteran's radiology studies showed an equal degree of bilateral knee arthritis that would be consistent with the wear and tear of normal age progression and his obesity. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left leg disorder. Initially, the Board notes that the Veteran has been diagnosed with left knee arthritis. Thus, the remaining question is whether the current disorder manifested in service or within one year thereafter or is otherwise related thereto. The Veteran's service treatment records do document an injury to his left leg in July 1961 and subsequent complaints of left leg pain through December 1963. However, x-rays did not reveal any abnormalities, and physical examinations in service were negative. Moreover, the Veteran did not seek any further treatment after December 1963, and his May 1964 separation examination was normal with a PULHES profile of L-1. Indeed, the Veteran did not report any current medical problems at the time of his separation examination. In addition, the Board notes that the Veteran did not seek treatment immediately following his separation from service or for many decades thereafter. There is no medical evidence of the disorder or arthritis within one year of his separation. Therefore, the Board finds that a left leg disorder, to include arthritis, did not manifest in service or within one year thereafter. With regard to the decades-long evidentiary gap in this case between active service and the earliest manifestations of a left leg disorder, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence, including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Board does acknowledge the Veteran's statements that he has had leg pain since service. The Board notes that the Veteran is competent to report his experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although he is not competent to report symptoms since service, the Board finds that such statements are not credible. His allegations are inconsistent with the contemporaneous record. As discussed above, despite his complaints, examinations were normal in service. His lower extremities were also normal at his separation examination, and he denied having any current medical problems at that time. Thus, there was actually affirmative medical evidence showing that he did not have a left leg disorder at the time of his separation from service. Moreover, the Board notes that the Veteran's current diagnosis is left knee arthritis, yet he was never treated for or complained of any left knee problems. Rather, he complained of left leg pain and numbness in service. In addition, the December 2011 reviewed the claims file, including the service treatment records, noted that the Veteran sustained a contusion in service, and stated that this would be the type of injury that would be expected to resolve without residuals in a matter of weeks. Given his review of the evidence, medical expertise, and rationale, the Board finds that the medical opinion of the VA examiner outweighs the lay statements of the Veteran. In addition to the lack of evidence showing that a left leg disorder manifested during active duty service or within close proximity thereto, the more probative evidence of record does not link any current diagnosis to the Veteran's military service. The Board does note that there are conflicting medical opinions on this point (the December 2011 VA examination report and the opinion statement of J.A., CNP); however, the Board finds the December 2011 VA examination report to be more probative. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). While J.A., CNP, provided an opinion that the Veteran's leg disorder was more likely than not related to his injury in service, no rationale was provided for this opinion. Moreover, J.A., CNP specifically noted in the letter that only limited records had been reviewed in connection with this opinion. As such, it is unclear whether she had an accurate factual premise on which she based her opinion. Indeed, she did not discuss the fact that the Veteran's examinations in service were negative despite his complaints, including the May 1964 separation examination, and the fact that the Veteran himself denied having any medical problem when he separated from service. She also did not address the decades-long evidentiary gap between the Veteran's separation from service and his first complaints regarding his left leg. In contrast, the December 2011 VA examiner offered his opinion based on a thorough and detailed review of all of the evidence, including the Veteran's service treatment records and post-service treatment records, and he offered a thorough rationale for the opinion reached that is clearly supported by the evidence of record. Indeed, the examiner specifically discussed the Veteran's assertions as well as other possible causes. Moreover, he noted that the Veteran had arthritis to an equal degree in both knees, despite only sustaining an injury to the left leg in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that it is what an examiner learns from the claims file for use in forming the expert opinion that matters and that, when the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment). The 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." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). In this case, and based on the foregoing, the Board attaches the greatest probative weight to the opinion of the December 2011 VA examiner who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. The Board notes that the Veteran has asserted that his left leg disorder is related to his in service injury during the course of his appeal. While the Board has considered the Veteran's opinion, the Board finds that the VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and are supported by a complete rationale based on such knowledge, a review of the claims file, and the Veteran's medical history. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a left leg disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left leg disorder is not warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a left leg disorder is reopened, and to this extent only, the appeal is granted. Service connection for a left leg disorder is denied. REMAND In an October 2012 rating decision, the RO granted the Veteran's claim for service connection for asbestosis and assigned a noncompensable evaluation effective from April 28, 2010. In May 2013, the Veteran's representative submitted a letter to the Board with accompanying medical records regarding asbestosis and asked that it be considered as supporting documentation for the Veteran's appeal. However, an SOC has not been issued. Under these circumstances, a remand is necessary. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO/AMC should issue a statement of the case addressing the issue of entitlement to a higher initial evaluation for asbestosis. The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The RO/AMC should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless he perfects his appeal. 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 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). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs