Citation Nr: 1306590	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  09-16 013	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to service connection for a respiratory disorder, other than asthma, to include chronic obstructive pulmonary disease (COPD) and pleural plaques (claimed as asbestosis), including as a result of asbestos exposure.

2. Entitlement to service connection for asthma, to include as a result of asbestos exposure.

3. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, including on a secondary basis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission




WITNESS AT HEARING ON APPEAL

The Veteran; S.M.S., the Veteran's wife


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from March 1958 to November 1960. 

This appeal arises before the Board of Veterans' Appeals (Board) from a the May 2008 rating decision issued by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for a respiratory disorder, to include as a result of asbestos exposure, and service connection for a psychiatric disorder, to include on a secondary basis.  In September 2008, the Veteran filed a Notice of Disagreement.  In March 2009, the RO furnished the Veteran a Statement of the Case.  In May 2009, the Veteran filed his Substantive Appeal (VA Form 9).

A hearing before the undersigned Veterans Law Judge at the RO was held in January 2012.  A transcript of the hearing has been associated with the claims file.

A review of the Virtual VA paperless claims processing system includes VA medical records from October 2010 to April 2012.  Additional documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal.

The issues of entitlement to service connection for asthma, to include as a result of asbestos exposure, and service connection for an acquired psychiatric disorder, to include on a secondary basis, 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 evidence of record is in relative equipoise as to whether the Veteran was exposed to asbestos during active military service.

2. The Veteran did not exhibit COPD in service and COPD is not otherwise shown to be associated with service.

3. The evidence of record is in relative equipoise as to whether the Veteran's lung abnormality, diagnosed as pleural plaques (and claimed as asbestosis) is due to his asbestos exposure during active military service.


CONCLUSIONS OF LAW

1. The criteria for establishing service connection for COPD, including as a result of asbestos exposure, are not met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309(a) (2012).

2. The criteria for establishing service connection for a lung abnormality, diagnosed as pleural plaques (claimed as asbestosis), as a result of asbestos exposure, are met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309(a) (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

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) (2012); 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. 

Prior to initial adjudication of the Veteran's claims for service connection, a letter dated in May 2007 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  This letter indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining the evidence.  The May 2007 notice letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

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 (2012) (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, as well as 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. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the claims file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran also indicated that he was in receipt of Social Security Administration (SSA) Disability benefits that warranted obtaining additional records.  The VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits.  Murincsak v. Derwinski, 2 Vet. App. 363 (1992).  The AMC has attempted to obtain these records but was notified by the SSA Records Center in April 2012 that the medical records no longer exist.  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 also 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 several VA examinations (respiratory examinations in February 2008 and August 2012; and psychiatric examinations in March 2008 and August 2012) and the results of which have been included in the claims file for review.  The August 2012 VA examinations involved review of the claims file and thorough examinations of the Veteran and the opinion was supported by sufficient rationale.  Therefore, the Board finds that the examinations are adequate for rating purposes.  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).  Given the foregoing, 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.

Additionally, the Board finds there has been substantial compliance with its April 2012 remand directives.  The Board notes that the Court has recently 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.)  As stated above, the Veteran was afforded additional VA examinations and the AMC attempted to locate SSA records.  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).

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 argument 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 Claims

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).

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, No. 2011-7184, slip op. at 13-14 (Fed. Cir. Feb. 21, 2013) (overruling Savage v. Gover, 10 Vet. App. 488 (1997)).  In this context, given that COPD, pleural plaques, and asbestosis are not specifically listed as chronic diseases in 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) do not apply to the Veteran's respiratory claim.

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)).  As for the Veteran's respiratory claim, a medical nexus of a relationship between the condition and service is required.  Walker v. Shinseki, supra.

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 and Supp. 2012).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim.  See 38 C.F.R. § 3.102 (2012).


Respiratory disorder (other than asthma) to include as due to asbestos exposure

The Veteran contends that he has developed a chronic respiratory disorder as a result of having been exposed to asbestos during active duty service.

There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims.  VA has, however, issued a circular on asbestos-related diseases.  DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos.  The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.)  See also VAOPGCPREC 4-00 (Apr. 13, 2000).

The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h).

In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b).

The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f).

The evidence of record contains a February 2002 VA medical statement prepared by Dr. S.K., and a February 2008 VA examination report that reflect the Veteran was diagnosed with COPD.  In addition, a June 2010 VA computed tomography (CT) scan found multiple bilateral calcified pleural plaques that were "most likely related to prior asbestos exposure;" and, in August 2012, the VA examiner who performed the respiratory examination noted that the June 2010 VA CT scan showed findings suggestive of asbestosis.  Hence, the Board finds that the Veteran has a current disability as required by 38 C.F.R. § 3.303.  See also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet App. 341, 346 (1999).  Moreover, the Board observes that the diseases typically associated with asbestos exposure do most often affect the lungs and digestive tract.  While COPD is not specifically listed as part of the non-exclusive list for asbestos-related diseases, pleural plaques are a lung abnormality that is associated with asbestos exposure. 

At the January 2012 Board hearing, the Veteran testified that as a gunner's mate his duties included being in shipyards.  He stated that he was "standing fire watch over welders cutting galvanized metal... and I got poison from that smoke.  Because [I] didn't wear any mask or anything then."  He stated he was unaware of the existence of asbestos at that time.  The Veteran testified that when he became ill he "thought [he] had the flu but they found out it was from that smoke."  He stated his symptoms included shortness of breath and body aches.  The Veteran stated that he was discharged from the Navy and was taken to Portsmouth Naval Hospital as he "got real nervous."  

With regard to the Veteran's post-service occupation, he testified at the January 2012 Board hearing that prior to his diagnosis, he was employed as a truck driver and could not recall when he would have been exposed to asbestos.

The Veteran's DD 214 reflects that he served in the United States Navy.  Also, the Veteran has testified to the effect that his duties as a gunner's mate placed in the shipyards.  Given that the Veteran's testimony is consistent with the places, types and circumstances of his service, the Board accepts the Veteran's testimony in this regard as competent and credible.  Thus, while the record does not document with certainty if the Veteran's asbestos exposure took place during service, post-service, or both, based on the Veteran's testimony, the Board resolves all reasonable doubt in the Veteran's favor and finds that he was exposed to asbestos during active duty.

There is no medical evidence that the Veteran suffered from any lung disorder while in service.  In this regard, the Board notes that the Veteran's March 1968 entrance examination and chest x-ray indicates the Veteran's respiratory system as normal.  Indeed, the Veteran's service treatment records are devoid of any mention of any complaint or diagnosis of a lung disorder.  Therefore, there is no evidence of any in-service diagnosis of a chronic lung disorder.

A March 2012 private treatment record from Woodland Heights Medical Center indicated the Veteran was treated for shortness of breath.  A chest x-ray revealed calcified pleural plaques which "correlate for prior asbestosis exposure."

The Veteran was afforded a VA pulmonary examination in August 2012.  After reviewing the Veteran's in-service, VA, and private treatment records, the examiner confirmed the Veteran's diagnosis of COPD, and noted that the Veteran had a history of COPD since 2002.  The examiner opined that based on the evidence of record, the Veteran's lay statements, a physical examination, medical literature and his professional judgment, it was less likely as not that the Veteran's COPD had its onset during the Veteran's active duty service or was caused by any incident or event that occurred during his period of service.  The examiner based his opinion on two reasons: 1) the Veteran stated he did not have any respiratory disorders prior to or during his military service, and 2) there was no clear documentation in the record to support the opinion that his COPD had its onset during or was caused by his military service.

Here, the examiner's determination is consistent with the evidence of record.  The in-service treatment records revealed no complaint, treatment, or diagnosis of COPD.  A March 1958 chest x-ray indicates negative findings for any abnormality.  In addition, none of the post-service treatment records offer an opinion that the Veteran's COPD is related to his military service.  Instead, these same post service records indicate an onset of COPD in 2002, many years after service.  The Board, therefore, finds that the August 2012 VA examiner provided a negative nexus with regard to the Veteran's claim for direct service connection for COPD as well as service connection based on in-service asbestos exposure.  In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos.  Medical-nexus evidence is required in claims for asbestos-related disease related to alleged asbestos exposure in service. See VAOGCPPREC 04-00.  As such, the Board finds that the Veteran is not entitled to service connection for COPD on the basis of asbestos exposure.  Therefore, with no evidence of an in-service diagnosis of lung disorder and no medical link between the Veteran's currently diagnosed COPD and his active duty service, service connection for COPD is not warranted on a direct basis.

As aptly noted by the record, the Veteran currently has an additional lung abnormality, diagnosed as bilateral pleural plaques.  The Board notes that the condition of pleural plaques is to be rated as analogous to asbestosis.  See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (i).  While the August 2012 VA examiner acknowledged the appearance of pleural plaques on previous CT scans he opined, "I [cannot] resolve the issue whether [the Veteran's] [a]sbestosis 'had its onset during the Veteran's period of active duty service... or was caused by any incident or service that occurred during his period of service' without resorting to mere speculation because there is insufficient objective information to make such a medical determination."  However, the record evidence also contains a June 2010 CT scan of the chest and a March 2012 private chest x-ray report, the results of which reveal pleural plaques that were most likely related to prior asbestos exposure.

As previously noted, pleural plaques are a lung abnormality that is associated with asbestos exposure.  While the Board notes there is not a presumption associated with asbestos exposure and as such medical evidence of a link between asbestos exposure in service and a current disability is necessary, the Board finds the above competent and credible medical evidence (specifically, the June 2010 CT scan and March 2012 chest x-ray) linking the Veteran's current lung abnormality of pleural plaques to asbestos exposure coupled with the probable likelihood of in-service asbestos exposure associated with the Veteran's lay statements to be at least in equipoise with regard to a grant of service connection.  See Dyment, supra.  Therefore, the Board finds service connection is warranted for a lung abnormality, diagnosed as pleural plaques (claimed as asbestosis), as due to asbestos exposure during active duty

Furthermore, the Board finds that the lay statements as to a nexus are outweighed by the medical evidence of record which does not relate the Veteran's COPD to any incident of the Veteran's military service.  However, with regard to the Veteran's claim for a lung abnormality (pleural plaques associated with asbestos exposure, the Board finds there is competent and credible medical evidence that supports the Veteran's claim and therefore, warrants service connection for pleural plaques (claimed as asbestosis).

In consideration of all the above, the Board finds that while the Veteran does have a current diagnosis of COPD, there is no indication that the Veteran was diagnosed with any lung disorder in service or immediately thereafter, and no competent and probative medical evidence linking the Veteran's current diagnosis of COPD with his active duty service.  As such, the preponderance of the evidence is against this claim and service connection for COPD must be denied.  However, with regard to the issue of a lung abnormality, diagnosed as pleural plaques (and claimed as asbestosis), the Board notes the evidence is in relative equipoise and given the benefit of the doubt rule, the Veteran's claim for service connection for this disability is granted.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).


ORDER

Entitlement to service connection for COPD, including as due to asbestos exposure, is denied.

Entitlement to service connection for a lung abnormality, diagnosed as pleural plaques (claimed as asbestosis), due to asbestos exposure is granted.


REMAND

Although the Board sincerely regrets the additional delay that may be caused by this remand, it is necessary to ensure that there is a complete record on which to decide the Veteran's claims so that he is afforded every possible consideration.  

Asthma

A review of the record indicates the Veteran has a diagnosis of asthma.  While it is unclear exactly when the Veteran was diagnosed, according to the VA treatment records it is appears he was treated for asthma as early as April 2004.  In addition, private treatment records from the Woodland Heights Medical Center and Shelby Regional Medical Center reveals the Veteran was treated for bronchial asthma and acute asthma exacerbation.  The August 2012 VA respiratory examination failed, however, to discuss the Veteran's diagnosis for asthma and offer an opinion on its etiology.

The Veteran has consistently reported that his current asthma is related to his asbestos exposure during his military service.  As previously stated, the Board accepts that the Veteran has presented competent and credible evidence of his exposure to asbestos during his military service.

Given the evidence of a diagnosis for asthma, the Veteran's lay contentions, and a history of asbestos exposure during service, the Board finds that a remand for a VA examination of the claim of service connection for asthma as due to asbestos exposure is necessary.  38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006).


Psychiatric disorder

The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, including on a secondary basis.  As discussed in the decision above, the Veteran has established service connection for a lung abnormality, diagnosed as pleural plaques (claimed as asbestosis).  The Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  In this function, the most recent VA psychiatric examination in August 2012 does not contain a medical opinion that addresses the impact which the (now) service-connected condition might, or might not, have upon the possible development of psychiatric disability.  In light of the foregoing, an addendum to the August 2012 VA examination report should be obtained for the purpose of determining whether his service-connected pleural plaques (claimed as asbestosis) has caused or aggravated an acquired psychiatric disorder.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination with an appropriate examiner to evaluate the relationship between his asthma and active duty service. 

The examiner is then asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that the asthma had its onset in service or is otherwise causally related to service, to include asbestos exposure. 

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.  


Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  The examiner should discuss the relevant in-service and post-service treatment records and the Veteran's contentions and lay history.  If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and explain why with a supporting rationale.

2. Obtain an addendum opinion to the VA psychiatric examination report of August 2012 (preferably from the VA examiner who conducted the August 2012 examination, if available) for the purpose of determining whether any acquired psychiatric disorder, to include a depressive disorder, that the Veteran now has is due to the service connected pleural plaques (claimed as asbestos) or whether any such psychiatric disorder which now exists is aggravated by this service connection disability.

The claims file must be made available to and reviewed by examiner in connection with the examination.  All tests deemed necessary should be conducted.

The examiner should express an opinion as to whether it is at least as likely as not that any acquired psychiatric disorder that the Veteran now has was caused or aggravated (permanently worsened beyond normal progression) by the Veteran's service connection pleural plaques (claimed as asbestosis).  Please explain the reasons for your opinion.

If the examiner finds that the Veteran has an acquired psychiatric disorder that was aggravated by his service connected pleural plaques (claimed as asbestosis), the examiner should quantify the degree of aggravation, if possible.

Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record.  The examiner should discuss the relevant in-service and post-service treatment records and the Veteran's contentions and lay history.  If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should so state and explain why with a supporting rationale.

3. Upon completion of the above, readjudicate the issues of service connection for asthma and an acquired psychiatric disorder, to include a depressive disorder.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs