Citation Nr: 1343487 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-31 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for gout. 3. Entitlement to service connection for a neurological condition of the right upper extremity, described as tingling and numbness in the extremities, including as due to a qualifying chronic disability to include undiagnosed illness (claimed as peripheral neuropathy). 4. Entitlement to service connection for a neurological condition of the left upper extremity, described as tingling and numbness in the extremities, including as due to a qualifying chronic disability to include undiagnosed illness (claimed as peripheral neuropathy). 5. Entitlement to service connection for a neurological condition of the right lower extremity, including meralgia paresthetic, to included as secondary to a service-connected disability (claimed as peripheral neuropathy). 6. Entitlement to service connection for a neurological condition of the left lower extremity, including meralgia paresthetic, to included as secondary to a service-connected disability (claimed as peripheral neuropathy). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 1977 to February 1992 and from July 2006 to September 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was previously remanded by the Board in February 2013 for additional development. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in October 2012. A transcript of the hearing is associated with the Veteran's claims folder. The Board observes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. The Veteran initially claimed entitlement to service connection for peripheral neuropathy of the upper and lower extremities. However, pursuant to Clemons, the Board concludes that the issues of entitlement to service connection for all neurological conditions of the upper and lower extremities are in appellate status. The Board has recharaterized the issues on the title page of this decision to reflect this finding. The Case was previously before the Board in February 2013, wherein it was, in part, remanded for additional development. The Board finds that there has been substantial compliance with the prior Board remand orders as the AMC provided the Veteran an opportunity to submit additional evidence, obtained outstanding VA treatment records, and provided the Veteran with VA examinations in relation to his claims for service connection for sleep apnea and gout. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The case was returned to the Board for appellate consideration and is now ready for disposition. The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. The issues of entitlement to service connection for peripheral neuropathy of the upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran's diagnosed obstructive sleep apnea had its onset during active service. 2. The Veteran had in-service treatment for a foot condition. 3. The Veteran has provided credible lay evidence of continuity of gout symptoms in service and since service separation. 4. The Veteran's gout had its onset in service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 1131 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection gout have been met. 38 U.S.C.A. §§ 1101, 1110, 1131 5103, 5103A, 5107, (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). In the present case, the Board is granting the claims for service connection for sleep apnea and gout. This decision constitutes a full grant of the benefits sought on appeal with regard to these two claims; therefore, no further discussion regarding VCAA notice or assistance duties is required. Additionally, the remaining issues on appeal, entitlement to service connection for neurological conditions of the upper and lower extremities, are being remanded for further evidentiary development. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further discussed. Service Connection Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2013). As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Gout is a chronic disease listed as "arthritis" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim for service connection for gout. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply with regard to this claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker, 718 F.3d 1331 (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including degenerative joint disease, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. As discussed below, because service connection for sleep apnea is being granted under a theory of direct service connection and service connection for gout is being granted under 38 C.F.R. § 3.303(b); therefore, other theories of entitlement to service connection are rendered moot and need not be discussed. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see 38 C.F.R. § 3.159(a)(2). Service Connection for Sleep Apnea The Veteran served on active duty from September 1977 to February 1992 and from July 2006 to September 2007. In August 2008, he filed a claimed seeking service connection for sleep apnea. At the October 2012 Board hearing, the Veteran reported that his sleep apnea began during his second period of active service in Iraq from July 2006 to September 2007. The Veteran reported having sleeping problems during service in Iraq. The Veteran testified that, at the time of his separation from service, he was told to make an appointment at VA for a complete physical. The Veteran reported that he went to a VAMC for a sleep study, after which he was prescribed a continuous positive airway pressure (CPAP) machine that he has been using ever since. At the April 2013 VA examination, the Veteran reported having breathing problems and fatigue while on active duty in 2006 through 2007. The Veteran stated that he was treated with allergy medication while in service. The Board finds that the Veteran has currently diagnosed sleep apnea syndrome, as evidenced by VA treatment records dated from January 2008 to present. After reviewing all the lay and medical evidence, including the Veteran's statements, the Board finds that the weight of the evidence is in equipoise as to whether the Veteran's currently diagnosed sleep apnea syndrome was incurred in active service. There is both unfavorable and favorable evidence regarding the question of whether the Veteran's current sleep apnea was incurred in active service. The unfavorable evidence includes the April 2013 VA examination report. The VA examiner opined that it was less likely than not that the Veteran's sleep apnea onset during active service, was due to an injury in service, or was due to the Veteran's service-connected diabetes, hypertension, or heart disease. The VA examiner noted that, in adults, the most common cause of obstructive sleep apnea is excess weight and obesity, as well as other factors including anatomical features such as a narrow throat, thick neck, and round head, many of which are heredity. The VA examiner noted that contributing factors may include hypothyroidism, excessive and abnormal growth due to excessive production of growth hormone, allergies, and other medical conditions such as a deviated septum that cause congestion in the upper airways. The VA examiner also noted that smoking, excessive alcohol use, and/or the use of sedatives is often associated with obstructive sleep apnea. The VA examiner noted that obstructive sleep apnea often develops gradually, over a period of several years. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). The April 2013 VA examiner made only general statements of what, other than active service, could have caused the Veteran's sleep apnea, but did not provide a clear rationale as to why the sleep apnea was not incurred during active service. The Board accords the April 2013 VA examination report low probative weight because the VA examiner, while listing various causes of sleep apnea, did not opine as to why it was less likely than not that the Veteran's sleep apnea had its onset in active service. The other piece of unfavorable evidence is the Veteran's February 2007 post-deployment health assessment in which the Veteran denied still feeling tired about sleep and difficulty breathing. On the February 2007 post-deployment healthcare provider review, interview, and assessment, no concern with regard to sleep apnea was noted. However, as will be discussed below, the Board finds that the Veteran's credible lay statements supported by the other evidence of record outweigh this omission on the Veteran's post-deployment health assessment. Having reviewed the evidence of record, the Veteran has provided credible testimony about the onset of symptoms and by VA treatment records showing complaints and treatment for sleep apnea. The Board finds that the Veteran's lay statements and the January through June 2008 VA treatment records to be competent and credible evidence that the Veteran's sleep apnea was incurred in active service. January 2008 VA treatment records note that the Veteran reported sleeping only two to four hours a night and that he felt this was due to being up for so long in Iraq. The Veteran reported snoring loudly with some gaps in breathing as well as the sensation of blood in his mouth when he awakens in the morning. A February 2008 VA treatment notes that the Veteran was for an initial consultation with the sleep center. A March 2008 VA treatment record notes that the Veteran had unspecified sleep apnea. The Veteran underwent a sleep study at the VAMC in May 2008. A June 2008 VA treatment record notes that, upon review of the May 2008 sleep study, the Veteran was diagnosed with obstructive sleep apnea syndrome. In a January 2009 notice of disagreement, the Veteran reported that the sleep study was not conducted until June 2008 because of the backlog at the VAMC sleep center and that the Veteran was seen at the VAMC within days of his discharge. A letter from Houston VAMC notes that there is no record of the Veteran receiving any treatment from the end of September 2007 (when the Veteran returned from active duty) and January 2008 (when the Veteran was seen for sleeping problems). However, the Board finds the Veteran's statement that he visited the VAMC shortly after service-separation to be credible and that his statement refers to the January 2008 VA treatment. For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's sleep apnea was incurred in active service. Thus, the criteria for service connection for sleep apnea have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Gout In this case, the Veteran seeks service connection for gout. He asserts that his gout is related to service, specifically, in a July 1996 written statement, the Veteran stated that his gout started when he served in Germany in 1987 to 1989 and he was treated at a local clinic. At the October 2012 Board hearing, the Veteran testified that he developed gout while stationed in Germany during his first period of active service, in the early to mid 1980s, by eating a lot of red meat and other food with high uric acid. The Veteran stated that, while stationed in Germany, he woke up and thought that he had hit his foot on something because it was swollen and discolored. The Veteran reported that the doctor he saw in service diagnosed him with gout due to high uric acid in his blood, gave him two medicines to take for the gout, that he has been given medication ever since, and that he self-medicated in service. The Veteran testified that, at the time of service separation in 1992, he reported that he had gout. First, the evidence of record reflects that the Veteran has a current diagnosis of gout. VA treatment records show that the Veteran was first diagnosed with gout in 1994, approximately two years after the first period of active service. The October 2008 and April 2013 VA examination reports reflect diagnoses of gout. Therefore, a current diagnosis of gout is shown. Next, the Board notes an in-service incurrence of treatment for a foot condition. An undated service treatment record notes that the Veteran was seen for a foot injury incurred during physical training. The service treatment record notes that the Veteran's foot was tender and painful when he put pressure on it. The Veteran was given aspirin and analgesic balm for his foot pain. The Board further finds that the evidence is at least in relative equipoise on the question of whether the Veteran's current gout is related to active service. Regarding continuity of symptomatology, in a July 1996 written statement, the Veteran reported that he was treated for gout during his first period of service and that, since that time, his gout condition has progressively gotten worse. At the October 2008 VA examination, the Veteran reported that he gout for the previous 16 years (i.e., 1992) that manifests as pain in both feet occurring two times per month and lasts for three days. At the October 2012 Board hearing, the Veteran stated that he took medication for his gout in-service and since service separation. At the April 2013 VA examination, the Veteran reported that foot problems began in 1986 during his first period of service, at which time he was given medication and diagnosed with gout. The Board finds that the Veteran has credibly reported continuity of symptomatology of his gout symptoms in-service and since service separation. Additionally, at the October 2012 Board hearing, the Veteran testified that, at the time of service separation in 1992, he reported that he had gout. The Board has reviewed the service treatment records of record and finds that a service separation physical is not of record. In cases involving missing or unavailable service treatment records, VA is under a heightened duty to assist the Veteran with respect to the processing of his claim. VA's heightened duty consists of "consider[ing] the applicability of the benefit of the doubt rule, . . . assist[ing] the claimant in developing the claim, and . . . explain[ing] its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 267 (1991). As it appears that the Veteran's service separation physical is unavailable, the Board has applied the benefit of the doubt doctrine in the Veteran's favor and accepts, for the purpose of this decision, that he informed the military physician at his service separation physical of the symptoms he felt were related to gout. On VA examination in April 2013, the VA examiner opined that the Veteran's gout was less likely than not incurred in or caused by the claimed in-service injury. The VA examiner noted that a review of records showed documentation of a foot injury in service treated with aspirin. The VA examiner noted no evidence of chronic gout or any treatment for gout during service or at time of service separation. The VA examiner noted that the Veteran was seen in 1994 for arthralgias that initially had an unknown cause but was later diagnosed as gout. The VA examiner stated that there was no evidence the Veteran had gout diagnosed in service or immediately after separation. However, the Board has applied the benefit of the doubt doctrine in the Veteran's favor and has accepted, for the purpose of this decision, that the Veteran informed the military physician at his service separation physical of the symptoms he felt were related to gout. Therefore the VA examiner made an inaccurate assumption that the Veteran did not report symptoms related to gout at service separation. A medical opinion based on an inaccurate factual predicate is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board finds that the April 2013 VA examination opinion in regard to the etiology of the Veteran's gout is of limited probative value. The Board finds that the Veteran's assertions of the onset of gout during service and his reports that he has had gout symptomatology since service, in the context of the demonstrated in-service treatment for a foot condition and current diagnosis, are sufficient to place in equipoise the question of whether the current gout was incurred in service and is etiologically related to the in-service treatment of a foot condition in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that gout was incurred in service and the criteria for service connection for gout have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for sleep apnea is granted. Service connection for gout is granted. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2013). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. Id. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When this matter was before the Board in February 2013, a remand was ordered. In pertinent part, the AMC was instructed to afford the Veteran a VA examination to determine whether the Veteran's claimed peripheral neuropathy of the upper and lower extremities was incurred or otherwise caused by active service and whether the claimed peripheral neuropathy was caused or aggravated by the service-connected diabetes mellitus type II or other service-connected disability. As such, in April 2013 the Veteran underwent a VA peripheral nerves conditions examination. The VA examiner did not diagnosis the Veteran with a peripheral nerve condition or peripheral neuropathy of either the upper or lower extremities, but did diagnose the Veteran with meralgia paresthetic of the lower extremities. The VA examiner reported that no pathology, finding, or condition of the upper extremities was found. With respect to the Veteran's lower extremities, the VA examiner did not opine as to whether it is at least as likely as not that the Veteran's meralgia paresthetic was proximately due to, or permanently aggravated by, the Veteran's service-connected disabilities, to include diabetes mellitus type II. Thus, the Board finds that an additional VA opinion is necessary as there remains some question as to the etiology of the current lower extremity neurological conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran's upper extremities, the Board finds an examination is necessary to determine the nature and etiology of the claimed upper extremity neurological conditions. The Veteran's DD Form 214 reflects that he had service in Iraq from July 2006 through August 2007. Therefore, he is a "Persian Gulf veteran" (i.e., had active military service in the Southwest Asian Theater of operations during the Gulf War) as defined by 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2). An undiagnosed illness is defined as a condition that, by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). At the October 2008 VA examination, the Veteran reported tingling and numbness in his hands and legs. At the October 2012 Board hearing, the Veteran contended he experienced tingling and numbness in his extremities. At the April 2013 VA examination, the Veteran reported minimal intermittent tingling in different extremities. The Veteran reported that he has right fingertip numbness related to use and driving or gripping things. Service treatment records are negative for any complaints, findings, or diagnosis of a neurological condition of the upper extremities, to include peripheral neuropathy. A review of the evidence of record reflects that the Veteran does not have a current diagnosis for any neurological conditions associated with the Veteran's upper extremities. The October 2008 VA examiner did not diagnose the Veteran with peripheral neuropathy of the upper extremities finding no pathology to render a diagnosis. The April 2013 VA examination noted that no pathology, finding, or condition was found of the Veteran's upper extremities. Based on the above, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran's claimed upper extremity neurological condition. Accordingly, the issues of service connection for neurological conditions of the upper and lower extremities are REMANDED for the following action: 1. Arrange for the Veteran's claims file, include a copy of this remand, to be reviewed by the VA examiner who prepared the April 2013 VA examination report for the purpose of preparing an addendum to the examination report. If it is determined that another examination is needed to provide the required opinion, the Veteran should be afforded the appropriate VA examination to determine the etiology of his current neurological conditions of the lower extremities. Following review of the claims file, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current meralgia paresthetica, or other neurological condition, of the lower extremities is caused or aggravated by the service-connected diabetes mellitus type II or other service-connected disability. The rationale for any opinion expressed should be set forth. 2. Schedule the Veteran for a VA examination in order to assist in determining the current nature and etiology of his upper extremity neurological complaints. The claims file should be made available to the examiner. The examiner should note all reported symptoms related to the Veteran's claimed upper extremity neurological conditions. The examiner should specifically state whether any of the Veteran's complaints are attributable to a known diagnostic entity. If there are known diagnostic entities to which the Veteran's complaints are attributable, the examiner should offer an opinion, with respect to each disability, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current disability was incurred or aggravated as a result of active service or caused or aggravated by the service-connected diabetes mellitus type II or other service-connected disability. If any symptoms related to the Veteran's claimed upper extremity neurological condition cannot be attributed to a known diagnostic entity, the examiner should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such signs or symptoms represent an objective indication of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness related to the Veteran's Persian Gulf War service. The rationale for any opinion expressed should be set forth. 3. Then, readjudicate the remaining issues on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs