Citation Nr: 1341932	
Decision Date: 12/18/13    Archive Date: 12/31/13

DOCKET NO.  06-34 415	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to service connection for respiratory failure due to trauma and pneumothorax.

2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and suicide attempts, other than posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Navy from September 1973 to October 1976. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and has subsequently been transferred to the Atlanta, Georgia, RO.

The record reflects that in September 2009, April 2010, and February 2011 the Board remanded some of the claims to the RO via the Appeals Management Center (AMC) in Washington, DC.  Such has been completed and this matter is returned to the Board for further consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

In the most recent February 2011 Board remand, the issues of entitlement to service connection for a stomach disorder and for chest wall pain, status-post motor vehicle accident, were also remanded for further development.  Following the development requested by the Board was completed, the RO granted entitlement to service connection for both claims in a September 2013 rating decision.  As this grant of service connection represents a full grant of benefits on appeal with respect to these issues, it is no longer in appellate status or before the Board.

In addition, the issue of whether new and material evidence had been submitted to reopen the claim for entitlement to service connection for PTSD, to include complaints of sexual assault and physical abuse, was remanded by the Board in February 2011 for an issuance of a Statement of the Case.  In June 2012, a Statement of the Case was issued denying the Veteran's request to reopen the claim.  Subsequently, a Substantive Appeal (VA Form 9) has not been submitted by the Veteran.  As such, this issue is no longer before the Board.

In a September 2013 statement, the Veteran referred to his PTSD claim and new evidence.  It is unclear, however, whether the Veteran intends to pursue a claim to reopen his claim for entitlement to service connection for PTSD, to include complains of sexual assault and physical abuse.  If the Veteran does, in fact, desire to reopen this claim, he should file an appropriate claim with the RO.  

The Veteran requested a hearing before a member of the Board in his September VA Form 9 for the issues listed above.  However, in a July 2007 statement, the Veteran stated he withdraws his previous request for a hearing.  Accordingly, the hearing request is deemed withdrawn.  See 38 C.F.R. § 20.702 (2013).

The Board additionally notes that records within the Veteran's electronic Virtual VA file have been reviewed in conjunction with the adjudication of the claim currently on appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression and suicide attempts, other than PTSD, 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 and competent medical evidence does not reveal a diagnosis of respiratory failure due to trauma and pneumothorax, or any residuals, related to the Veteran's active service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for respiratory failure due to trauma and pneumothorax have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.56(a), 3.159 and 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide.

The notice requirements described above apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In January 2006 and March 2006, the agency of original jurisdiction (AOJ) provided the notice required by 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013).  Specifically, the AOJ notified the Veteran of information and evidence necessary to substantiate the claims for service connection; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  In a separate March 2006 notice letter, the Veteran was provided with the notice pursuant to Dingess.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The Board acknowledges that some of the Veteran's service treatment records (namely, the separation examination records) are absent from the claims file.  Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule.  See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 

As some of the Veteran's in-service treatment records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind.  It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant.  See Russo v. Brown, 9 Vet. App. 46 (1996).

The Veteran's private and VA medical records, and Social Security Administration (SSA) records are in the file.  As stated above, the Veteran's records within the Virtual VA electronic system have been reviewed in conjunction with the adjudication of this appeal.  Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded a VA examination in July 2012 pursuant to the February 2011 Board remand, the results of which have been included in the claims file for review.  This examination involved a summary of the history from a review of the record and from reports by the Veteran, a thorough clinical examination in compliance with regulations and protocols, and opinions on the relationship of the disability to active duty service.  The Board concludes that the examination was performed by a qualified physician with appropriate consideration of the history and clinical observations.  Therefore, the Board finds that the September 2011 is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  The Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim and there has been substantial compliance with its February 2011 remand directives.

The Board notes that the United States Court of Appeals for Veterans Claims (Court) has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted arguments and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

The Veteran claims he currently has a respiratory disorder which was sustained or a residual of respiratory failure (due to trauma and pneumothorax) during his military service. 




Governing Laws and Regulations

Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 C.F.R. § 3.303(d).

Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). 

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period.  In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

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.  If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). 

Here, the Board notes that the Veteran has not been diagnosed a disability subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a).  As such, the Veteran cannot establish service connection solely based on lay statements of continuity of symptomatology since service.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  See 38 U.S.C.A. § 1154(a) (West 2002).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Turning to the relevant evidence of record, the Veteran's in-service treatment records show that the Veteran was in a motor vehicle accident on May 13, 1976. The records indicate that following the accident in May 1976 the Veteran "developed respiratory distress secondary to a right pneumothorax."  The Veteran was diagnosed with "trauma, blunt, chest wall, secondary to automobile accident" and "respiratory failure, treated and improved, secondary to trauma."  As noted above, the Veteran's separation examination records are not of record. 

Pursuant to the February 2011 Board remand, the Veteran was afforded a VA examination in July 2012 where the examiner determined that the Veteran is not currently, or ever been, diagnosed with a respiratory condition.  The examiner noted the Veteran's specific report that he sustained chest wall trauma, a "collapsed lung," and respiratory failure requiring ventilatory support during service in 1976.  He stated that he recovered from the accident but stated that he has continued to experience dyspnea with exertion and has been unable to "take a full deep breath." The examiner noted there was no history of asthma, chronic bronchitis, or chronic obstructive pulmonary disease and there was no evidence of restrictive lung disease.  The Veteran stated he currently uses an Albuterol inhaler when he feels dyspnea which would help.  The examiner determined that after the motor vehicle accident in 1976, the Veteran "developed a large pneumothorax and respiratory failure but recovered and does not have chronic respiratory residuals related to this."

Upon review of the evidence of record, a physical examination, the Veteran's lay statements, the examiner opined:

There is no evidence for any chronic pulmonary residuals of [the in-service] injury or development of any chronic respiratory condition.  [The] Veteran's chest x[-]rays and pulmonary function tests have been unremarkable.  [The] Veteran does not have a current respiratory disorder."

On careful review of the medical record evidence since service, the Board finds that despite the in-service injury during service, and the Veteran's complaints of current symptomatology, the July 2012 VA examiner did not find a current disability.  There is no evidence of record demonstrating a present diagnosis of respiratory failure.  Although the medical records on file does show complaints of chest pain following service, the VA treatment records contain no diagnosis or problem listed referable to the claimed respiratory failure.  In sum, the most probative and competent medical evidence does not show a diagnosis pertaining to any respiratory failure due to trauma and pneumothorax. 

While the Veteran is capable of stating he has dyspnea, he is not competent to say his dyspnea is associated with a particular diagnosis.  This evidence must therefore be provided in the form of competent medical opinion.  Therefore, as there is no competent and probative medical opinion evidence demonstrating that the Veteran has a current respiratory disorder or any residuals of in-service respiratory failure, service connection for such disorders are not warranted.  Without a disability, there can be no entitlement to compensation.  See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

Moreover, the Veteran's symptoms of chest wall pain have already been considered in the disability rating for his service-connected costchrondritis, unspecified chest wall pain, status post motor vehicle accident, also claimed as blunt chest wall.  To assign a separate rating based on this same symptomatology would therefore violate the rule against pyramiding.  See 38 C.F.R. § 4.14 (2013). 

Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability.  38 C.F.R. § 4.14 (2013).  Although it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).  Here, the Veteran's symptomatology of a chest wall pain is already considered as a symptom of his service-connected disability and in the considerations of the assigned disability rating.  As such, to separately rate such symptoms as respiratory failure due to trauma and pneumothorax, generally, would be duplicative and overlapping with the symptomatology of the Veteran's already service-connected disability.

The Board acknowledges the Veteran has reported currently experiencing respiratory failure and chest wall pain due to his military service.  In that regard, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge, such as his current symptomatology.  His assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Laypersons, however, are not generally considered to be competent to render an opinion as to the cause or etiology of any current disability because they do not have the requisite medical knowledge or specialized training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). 

The Board acknowledges the Veteran's belief that he has a respiratory disorder that is a separate and distinct disability other than those that have already been service-connected.  However, given the complex nature of this condition and the objective medical evidence, the Board concludes that the Veteran's statements and opinions as to diagnosis and etiology are of minimal probative weight.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Accordingly, his opinions are not significantly probative and are outweighed by the medical evidence of record noted above.

The Board finds that the preponderance of the evidence is against this claim of entitlement to service connection for respiratory failure due to trauma and pneumothorax.  This being the case, the doctrine of reasonable doubt is not for application concerning this claim.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, the appeal of this claim must be denied.


ORDER

Entitlement to service connection for respiratory failure due to trauma and pneumothorax is denied.


REMAND

Unfortunately, a remand is required in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a), 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). 

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.     38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2013).

The Veteran claims service connection is warranted for an acquired psychiatric disorder, to depression and suicide attempts, based on an in-service incurrence.  The Veteran asserts that he was sexually assaulted while on active duty.  He maintains that following the incident he attempted suicide in May 1976.  He has been diagnosed and is currently treated for depression, mental illness, and major depression.  

In April 2013, the Veteran underwent a PTSD disabilities benefits questionnaire (DBQ).  The Board finds this examination is inadequate as it did not assess any of the Veteran's acquired psychiatric disabilities, other than PTSD.

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).  As such, the Board finds that this matter should be remanded and that, upon remand, the Veteran should be provided an adequate VA examination and opinion with adequate rationale, and with proper consideration of the lay statements.  Here, the Board observes that VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88 (1996); Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1. Schedule the Veteran for appropriate examination to determine the nature and etiology of his acquired psychiatric disability, other than PTSD, to include depression and suicide attempts. 

Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder(s), the examiner is asked to diagnose all acquired psychiatric disorder(s) and opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed acquired psychiatric disability other than PTSD had its onset in service or is otherwise linked to service. 

The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged.  All appropriate testing should be accomplished.  The Veteran's lay statements within the claims file and made at the examination must be considered. 

All findings and conclusions should be set forth in a legible report.  A clear rationale for all opinions rendered must be made.  If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation.

2. Review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, an adequate opportunity to respond must be provided, and the appeal must thereafter be returned to the Board for further appellate review.

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. 2013).




______________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs