Citation Nr: 1342932 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 07-34 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for the service-connected diabetes mellitus, type II. 2. Entitlement to an evaluation in excess of 10 percent prior to June 28, 2010, and in excess of 20 percent thereafter, for the service-connected peripheral neuropathy of the right lower extremity. 3. Entitlement to an evaluation in excess of 10 percent prior to June 28, 2010, and in excess of 20 percent thereafter, for the service-connected peripheral neuropathy of the left lower extremity. 4. Entitlement to an evaluation in excess of 10 for the service-connected peripheral neuropathy of the right upper extremity. 5. Entitlement to an evaluation in excess of 10 for the service-connected peripheral neuropathy of the left upper extremity. 6. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to July 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran presented testimony before the Board in May 2008. A transcript has been obtained and associated with the claims folder. The matters were previously before the Board in January 2009 and September 2011. The claims were remanded for further development and adjudication. In September 2011, the Board awarded a total disability evaluation based on individual unemployability (TDIU). The RO implemented the award in October 2011. The matter is no longer before the Board. In July 2010, the RO awarded increased 20 percent ratings for both the right and left lower extremities effective from June 28, 2010. The matters remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that, in a claim for an increased disability rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded). The Board previously referred claims for service connection for erectile dysfunction and peripheral artery disease secondary to the service-connected diabetes mellitus. These matters have still not been adjudicated by the Agency of Original Jurisdiction (AOJ and once again referred to the AOJ for appropriate action. The claim for hypertension 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 service-connected diabetes mellitus is not shown to be productive of a disability picture that is manifested by the required regulation of activities at any time during the appeal period. 2. The service-connected peripheral neuropathy right upper extremity is not shown to be productive of a disability picture that is manifested by moderate, incomplete paralysis of the median nerve. 3. The service-connected peripheral neuropathy left upper extremity is not shown to be productive of a disability picture that is manifested by moderate, incomplete paralysis of the median nerve. 4. The service-connected peripheral neuropathy of the right lower extremity is not shown to be productive of a disability picture that is manifested by moderate, incomplete paralysis of the sciatic nerve prior to June 28, 2010, or severe, incomplete paralysis of the sciatic nerve from June 28, 2010. 5. The service-connected peripheral neuropathy if the left lower extremity is not shown to be productive of a disability picture that is manifested moderate, incomplete paralysis of the sciatic nerve prior to June 28, 2010, or severe, incomplete paralysis of the sciatic nerve from June 28, 2010. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913 (2013). 2. The criteria for an evaluation in excess of 10 percent for the service-connected peripheral neuropathy right upper extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.124a, Diagnostic Code 8515 (2013). 3. The criteria for an evaluation in excess of 10 percent for the service-connected peripheral neuropathy left upper extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.124a, Diagnostic Code 8515 (2013). 4. The criteria for an evaluation in excess of 10 percent prior to June 28, 2010, and in excess of 20 percent thereafter, for the service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.124a, Diagnostic Code 8520 (2013). 5. The criteria for an evaluation in excess of 10 percent prior to June 28, 2010, and in excess of 20 percent thereafter, for the service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran adjudication notice by letters dated in May 2004, April 2005, and April 2006. A notice pursuant to the Dingess decision was sent in March 2006. VA also has a duty to assist the Veteran in the development of the claims. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which has been obtained. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board has reviewed all the evidence in the Veteran's claims file and virtual record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Diabetes Mellitus As an initial matter, the Board notes that entitlement to service connection for erectile dysfunction and peripheral artery disease associated with diabetes mellitus has been referred to the AOJ for adjudication. Service connection is in effect for peripheral neuropathy of the bilateral lower and upper extremities and is separately discussed. There has been no evidence of nonproliferative diabetic retinopathy associated with diabetes mellitus. The service-connected diabetes mellitus is currently rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this Code section, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119. A 40 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to diabetic care providers, plus complications that would not be compensated if separately evaluated. Id. A 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would not be compensated if separately evaluated. Id. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the service-connected diabetes mellitus more closely approximates the criteria for the current 20 percent rating. 38 C.F.R. § 4.7. In this regard, there is no dispute the Veteran's service-connected diabetes mellitus has required the use of oral medications and insulin for control. What is in question, however, is whether the Veteran has a regulation of activities. In this regard, VA examination reports and outpatient treatment records do not show regulation of activities. Notably, treatment records dated in December 2004 and February 2005 show the Veteran was educated on the importance of diet and exercise. In November 2005, the Veteran was involved in a home program of progressive walking. VA examination dated in November 2004 revealed the Veteran remained on insulin, oral medication, and restricted diet. The examiner noted the Veteran's activities were not restricted as a result of his diabetes. The examiner further indicated the Veteran was encouraged by his diabetic care provider to increase his exercise. VA outpatient treatment records dated in February 2006 indicate the Veteran was exercising three or more times a week. He was walking for 30 minutes or more. He continued to walk in April 2006. Upon VA examination in September 2006, the Veteran continued to control his diabetes with insulin, oral medication and restricted diet. The Veteran's activities were not restricted as a result of his diabetes. He denied any episodes of ketoacidosis or hypoglycemic reactions. VA treatment records dated in November 2007 show he was walking for exercise. In December 2008, he was exercising three or more times a week. His exercise was described as moderate in nature. He also swam for exercise in December 2008. In July 2009 he was counseled on the importance of 30 minutes of daily exercise to assist in control of his diabetes. In April 2009, he was exercising more. Notably, he was walking on a treadmill. He was involved in a home exercise program in January 2010. Upon VA examination in December 2010, the Veteran remained on both insulin and oral medication for control of his diabetes. He followed a restricted diet. The Veteran was not restricted in his ability to perform strenuous activities. VA outpatient treatment records dated in June 2011 show the Veteran was encouraged to engage in physical activity. In February 2012, the Veteran walked for exercise. Upon VA examination in January 2012, there was again no regulation of activities as part of the medical management of the Veteran's diabetes mellitus. He saw his diabetic care provider less than two times per month. He denied hospitalizations for ketoacidosis or hypoglycemia in the past 12 months. He did not have loss of strength or progressive unintentional weight loss attributable to diabetes. Based on the foregoing, there is no evidence of record to support an increase to 40 percent disabling. Specifically, there has been no persuasive evidence showing that the diabetes mellitus more nearly approximates a disability picture that includes a required regulation of activities. 38 C.F.R. § 4.119. In light of the above, there is no basis for assignment of an evaluation, to include "staged" ratings, other than the 20 percent disability rating which has been assigned. 38 C.F.R. § 4.7. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms and resulting impairment demonstrated with regard to management of the Veteran's diabetes mellitus, taking insulin and oral medication, and following a restricted diet, fall within the schedular criteria. The rating criteria contemplate a higher rating, which includes the above criteria but also requires a regulation of activities, but has not been found in the instant decision. See Diagnostic Code 7913. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). B. Peripheral Neuropathy of the Upper Extremities The service-connected peripheral neuropathy of the right and left upper extremity is each currently rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8515. Under this Code section, a 10 percent rating is assigned for mild, incomplete paralysis of the median nerve (major and minor). 38 C.F.R. § 4.124a. A 20 percent rating (minor) and 30 percent (major) is assigned for moderate, incomplete paralysis of the median nerve. Id. A 40 percent rating (minor) and 50 percent (major) is assigned for severe, incomplete, paralysis of the median nerve. Id. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the service-connected peripheral neuropathy of the right and left upper extremities closely approximates the criteria for the current 10 percent ratings. 38 C.F.R. § 4.7. In this regard, there is no evidence of moderate, incomplete paralysis of the right or left upper extremity. Upon VA examination in November 2004, there was decreased upper extremities to filament testing. Vibratory sensation in the fingertips and palms of the hand were glove-like in nature. Muscle strength was 5/5. He had good finger to thumb dexterity. VA outpatient treatment records dated between 2004 and 2010 were devoid of complaints referable to the upper extremities. Upon VA examination in September 2006, the Veteran reported paresthesias to the hands. The upper extremity deep tendon reflexes were +2/4 and equal bilaterally. Grip strength was +4/5 bilaterally. He had decreased sensation to monofilament testing on both the palmar and dorsal aspects of his hands bilaterally. There was also decreased sensation to the bony landmarks of both hands to vibration. The radial and ulnar pulses were +2/4 and equal bilaterally. Capillary refill was brisk and less than three seconds. There was no evidence of thenar atrophy. During VA examination in June 2010, vibration was normal on both hands. Pinprick was normal except on the fingertips where it was only mildly decreased. The Veteran had active movement against full resistance in bilateral elbow flexion and extension, wrist extension, finger flexion, finger abduction, and thumb opposition. Despite findings that light touch was moderately decreased on all the fingers and mildly on the dorsum of both hands but not the palms, there was no evidence of paralysis (incomplete or complete) of the median nerve. Upon VA examination in January 2012, the Veteran had mild pain in the upper extremities. He had no paresthesias or dysesthesias. There was mild numbness. Strength was 5/5 in bilateral elbow flexion and extension, wrist extension and flexion, grip, and pinch. Deep tendon reflexes were normal in the biceps, triceps, and brachioradialsis. Light touch and monofilament was normal in the shoulder and the inner and outer forearm, it was decreased in the hand and fingers. Vibration sensation was normal in both upper extremities. The Veteran was diagnosed with mild, incomplete paralysis of the radial, median, and ulnar nerves. VA outpatient records do not contain treatment for peripheral neuropathy of the upper extremities between 2010 and 2012. Based on the foregoing, there is no evidence of record to support an increase to 20 (minor) or 30 (major) percent disabling. Specifically, there has been no persuasive evidence showing that the peripheral neuropathy of the upper extremities more nearly approximates a disability picture that includes moderate, incomplete paralysis of the median nerve. 38 C.F.R. § 4.119. In light of the above, there is no basis for assignment of an evaluation, to include "staged" ratings, other than the 20 percent disability rating which has been assigned. 38 C.F.R. § 4.7. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms (pain, weakness) and resulting impairment (mild, incomplete paralysis) demonstrated with regard to the Veteran's peripheral neuropathy fall within the schedular criteria. The rating criteria contemplate a higher rating for moderate, incomplete paralysis of the median nerve, but it has not been found in the instant decision. See Diagnostic Code 8515. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). C. Peripheral Neuroathy of the Lower Extremities The service-connected peripheral neuropathy of the right and left lower extremity is each currently rated as 10 percent disabling prior to June 28, 2010, and 20 percent thereafter, under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this Code section, a 10 percent rating is assigned for mild, incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A 20 percent rating is assigned for moderate, incomplete paralysis. Id. A 40 percent rating is assigned for moderately severe, incomplete paralysis. Id. A 60 percent rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. Id. A 80 percent rating is assigned for complete paralysis. Id. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claims in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the service-connected peripheral neuropathy of the right and left lower extremities closely approximates the criteria for the current 10 percent ratings prior to June 28, 2010, and 20 percent thereafter. 38 C.F.R. § 4.7. Prior to June 28, 2010, there was no evidence of moderate, incomplete paralysis of sciatic nerve. In this regard, upon VA examination in November 2004, there was simply decreased filament and vibratory sensation in the palms and toes, plantar, ankle area of the bilateral lower extremities. There was no sign of dehydration, edema , or stasis of the lower extremities. There was normal hair growth. Upon VA examination in September 2006, the Veteran had decreased sensation to vibration to the bony landmarks of the feet bilaterally. Proprioception of the great toes was intact bilaterally. The feet had no ulcerations or lesions. There was no evidence of onychomycosis to the toenails. While Achilles tendon reflexes were +0/4 and equal bilaterally and there was sparse hair distribution, there was no evidence of incomplete paralysis of the sciatic nerve described as moderate in nature. From June 28, 2010, there was no evidence of severe, incomplete paralysis of the sciatic nerve. In this regard, upon VA examination in June 2010, pinprick was only moderately decreased on both feet and mildly decreased above the malleoli to the mid tibias. There was absent vibration on both feet to about six centimeters above the malleoli. While light touch was absent on both feet distal to the mid-foot and decreased to above the mid tibia, there was active movement against full resistance in the bilateral hip flexion and extension, knee flexion and extension, ankle dorsiflexion and plantar flexion, and great toe extension. Muscle tone was normal. There was no muscle atrophy. VA outpatient treatment records dated in 2012 simply show the Veteran had an unsteady gait and complained of falls. Upon VA examination in January 2012, the Veteran reported severe pain and numbness in the lower extremities. There were no paresthesias or dysesthesias. He had ataxia due to loss of position sense in the foot and ankle joints. He reported unsteady gait and falls. There was normal strength in the knees and ankles. Deep tendon reflexes were decreased in the knees and absent in the ankles. Light touch/monofilament was decreased in the ankle and lower legs, normal in the knees and thighs, and absent in the foot and toes. Vibration was decreased. He had some trophic changes in the mid calf bilaterally. While the examiner found severe, incomplete paralysis of the femoral nerve (anterior crural), there was only mild, incomplete paralysis of the sciatic nerve. Based on the foregoing, there is no evidence of record to support an evaluation in excess of 10 percent prior June 28, 2010, or in excess of 20 percent thereafter, for peripheral neuropathy of the lower extremities. Specifically, there has been no persuasive evidence showing that the overall disability picture was productive of peripheral neuropathy of the lower extremities resulting in moderate, incomplete paralysis of the sciatic nerve prior to June 28, 2010 or severe, incomplete paralysis of the sciatic nerve from June 28, 2010. 38 C.F.R. § 4.124a. In light of the above, there is no basis for assignment of an evaluation, to include "staged" ratings, other than the disability ratings which have been assigned. 38 C.F.R. § 4.7. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms (pain, weakness, unsteady gait, falls) and resulting impairment (incomplete paralysis of the sciatic nerve) demonstrated with regard to the Veteran's peripheral neuropathy fall within the schedular criteria. The rating criteria contemplate higher ratings for incomplete paralysis of the sciatic nerve, but moderate paralysis prior to June 28, 2010, and severe paralysis from that date has not been found in the instant decision. See Diagnostic Code 8520. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An evaluation in excess of 20 percent for the service-connected diabetes mellitus is not warranted. An evaluation in excess of 10 percent for the service-connected peripheral neuropathy of the right upper extremity is not warranted. An evaluation in excess of 10 for the service-connected peripheral neuropathy of the left upper extremity is denied. An evaluation in excess of 10 percent prior to June 28, 2010, and in excess of 20 percent thereafter, for the service-connected peripheral neuropathy of the right lower extremity is denied. An evaluation in excess of 10 percent prior to June 28, 2010, and in excess of 20 percent thereafter, for the service-connected peripheral neuropathy of the left lower extremity is denied. REMAND The Veteran also claims entitlement to service connection for hypertension. As noted in the Introduction, the matter was most recently before the Board in September 2011 and remanded for further development and adjudication. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). As the orders of the Board were not complied with, the matter must be remanded so the Board's instructions can be carried out. By its prior remand, the Board specifically directed the AMC to afford the Veteran a VA examination to determine the etiology of the claimed hypertension. The examiner was asked to opine whether hypertension was proximately due to or aggravated by a service-connected disability, to include PTSD. While the Veteran was afforded a VA examination in January 2012, the examiner failed to address the aggravation component of the question. The Board is thus compelled to remand for corrective action. Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion from the January 2012 VA examiner, or a similarly qualified provider if he is unavailable, and ask the examiner to offer an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that hypertension was aggravated (chronically worsened) by the service-connected PTSD, and if aggravated by PTSD, a determination as to baseline and current levels of severity should be reported, to include a determination as to the extent of aggravation by deducing the baseline of severity, as well as any increase in severity due to the natural progress of the disease, from the current level, to the extent possible. The examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against service incurrence or causation. More likely and as likely support the contended onset date or causal relationship; less likely weighs against the claim. 2. After the development above is completed readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case, which should contain notice of all relevant actions taken on the claims for benefits. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs