Citation Nr: 1415513 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 08-33 901A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable disability evaluation for herpes simplex, type II. 2. Entitlement to an initial disability evaluation in excess of 10 percent for right knee strain with arthroscopic scars, status post medial meniscus tear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from June 1985 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Montgomery, Alabama. The January 2007 rating decision addressed 25 issues. In April 2007, the Veteran filed a timely Notice of Disagreement (NOD) for eight of those issues, including those listed above. The RO issued a Statement of the Case (SOC) in September 2008. In his timely December 2008 VA Form 9, the Veteran checked the box stating, "I have read the statement of the case and any supplemental statement of the case I received. I am only appealing these issues[,]" and listed his right knee disability and "eczema" ratings. It is clear from the statement attached to the VA Form 9 that the Veteran was describing his herpes claim because he stated that he "fe[lt] the rating should be rated at 10 [percent]. [He] had to take oral medication due to recurrence of the virus. [He] had recurrent episodes and use immunosuppressive drugs during such out[]breaks." Because the Veteran specifically stated that he wished to appeal only the two issues specified in his VA Form 9, the remaining six issues addressed in the September 2008 SOC are no longer considered to be on appeal and are not before the Board. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from November 2007 to March 2012 that are pertinent to the present appeal that were not initially reviewed by the RO. In March 2014, the Veteran, through his representative, waived initial RO consideration of this evidence. 38 C.F.R. § 20.1304(c) (2013). Any future consideration of this case should take into consideration the existence of these electronic records. The issue of entitlement to an initial compensable evaluation for herpes simplex 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 Throughout the appeal period, the Veteran's right knee disability picture approximates no more than painful motion that is noncompensable in degree without recurrent subluxation or lateral instability. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-5263 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Prior to initial adjudication, a letter dated in April 2006 satisfied the duty to notify provisions with regard to the Veteran's claims. He did not receive notice that he needed to show that his disability had increased in severity. Because this appeal arises from disagreement with an initial evaluation following the grant of service connection, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. VA examinations adequate for adjudication purposes were provided to the Veteran in connection with his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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 Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2013). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2013). If, as here, there is disagreement with the initial ratings assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's right knee disability is currently evaluated under Diagnostic Code 5260-5024, limitation of flexion of the leg and tenosynovitis. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5024, the rater is instructed to evaluate the disability on limitation of motion of the affected parts or as degenerative arthritis. Id. Under Diagnostic Code 5003, degenerative arthritis, if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). As in this case, in the absence of compensable limitation of motion, a 10 percent evaluation is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted under Diagnostic Code 5003 where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2013). However, these criteria do not apply to ratings under Diagnostic Code 5024 even though there is x-ray evidence that the Veteran has degenerative joint disease (DJD) of the right knee. The Board must consider other potentially applicable Diagnostic Codes for the evaluation of the Veteran's right knee DJD. There are two Diagnostic Codes for limitation of motion of the knee, they provide criteria for limitation of flexion and extension of the leg. 38 C.F.R. § 4.71a (2013). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board notes that the initial grant of a 10 percent disability rating for the Veteran's right knee disability was based solely upon painful, limited motion. Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable evaluation is warranted when flexion is limited to 60 degrees. A 10 percent evaluation is warranted when flexion of the leg is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a (2013). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2013). Even when considering painful motion and functional loss, the Veteran's loss of flexion does not more closely approximate limitation to 30 degrees. An April 2007 VA treatment record notes right knee flexion to 125 degrees with some medial joint line tenderness. At his November 2007 VA examination, his right knee flexion was limited to 125 degrees with pain throughout motion. He did not have additional limitation of motion after repetitive testing. The examiner noted that the knee had moderate impact on his ability to do chores and travel, and a severe impact on his ability to exercise and participate in sports. At his June 2008 VA examination, his flexion was limited to 116 degrees with pain from 110 to 116 degrees. He had no additional limitation of motion following repetitive testing. He reported pain, stiffness, and repeated effusions, but denied weakness. He denied flare-ups. The examiner noted objective evidence of painful movement and tenderness and specifically found that there was no effusion. The examiner concluded that the Veteran had decreased mobility due to pain. At his June 2012 VA examination, the Veteran reported flare-ups precipitated by activity. His flexion was limited to 120 degrees with pain beginning at 120 degrees. There was no additional limitation of motion following repetitive testing. The examiner found that the Veteran had functional loss due to less movement than normal, weakness, excess fatigability, and interference with sitting, standing, and weight bearing. Upon examination there was no tenderness to palpation in the joint line or soft tissues. His right knee strength was 4/5. The examiner noted that the Veteran used a brace. The examiner diagnosed mild DJD of the right knee with femororbital joint space narrowing. Over the course of the appeal, at worst, the Veteran's flexion was limited to 116 degrees with pain beginning at 110 degrees in June 2008 and had painful motion throughout testing in November 2007. His limitation of flexion does not more closely approximate limitation to 30 degrees. In fact, it does not more closely approximate the criteria for a noncompensable evaluation. 38 C.F.R. § 4.71a (2013). Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable evaluation is warranted when extension is limited to 5 degrees. A 10 percent evaluation is warranted when extension of the leg is limited to 10 degrees. A 20 percent evaluation is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a (2013). Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II (2013). The record has consistently shown that the Veteran's extension has been normal at 0 degrees. It was normal at his November 2007, June 2008, and June 2012 VA examinations. Although pain throughout motion testing was noted at his November 2007 examination, his extension was normal and there was no additional limitation of extension following repetitive motion. Even when considering pain, the Veteran's right knee extension does not more closely approximate limitation of extension to 15 degrees, which is required for a 20 percent evaluation. In fact, it does not more closely approximate the criteria for a noncompensable evaluation. 38 C.F.R. § 4.71a (2013). Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, and assuming that the Veteran's flexion ended at 110 degrees, his limitation of flexion is not limited to 45 degrees, which is necessary for a compensable evaluation under Diagnostic Code 5260, and his limitation of extension is not limited to 10 degrees, which is necessary for a compensable evaluation under Diagnostic Code 5261. The Veteran has advanced competent, credible lay assertions of right knee pain. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. For these reasons, Diagnostic Codes 5260 and 5261 are not more favorable to the Veteran. The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA. 38 U.S.C.A. § 7104(c) (West 2002 & Supp. 2013); 38 C.F.R. § 20.101(a) (2013). VA's General Counsel has held that a claimant who has arthritis as shown by x-ray and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). However, the General Counsel subsequently clarified that for a knee disability rated under Diagnostic Codes 5257 or 5259 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, the limitation of motion under Diagnostic Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a noncompensable rating. VAOPGCPREC 9-98 (1998). But, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by x-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Id., citing Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). As noted above, a 10 percent evaluation was granted in the January 2007 rating decision based upon painful limitation of motion even though it did not meet the criteria for a noncompensable evaluation. Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2013). The criteria in Diagnostic Code 5257 are based upon instability and subluxation, not limitation of motion, as a result, the criteria set forth in DeLuca do not apply. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 The competent medical evidence of record shows that the Veteran's right knee is stable. At his November 2007 VA examination, the examiner found that the Veteran did not have instability. The June 2008 VA examiner found that the Veteran did not have giving way, instability, or subluxation. The June 2012 VA examiner noted that the Veteran's knee was stable, based on negative anterior, posterior, and medial-lateral instability tests. The Veteran did not report a history of subluxation or dislocation. In his December 2008 Substantive Appeal, the Veteran reported that he had "instability and abnormal mobility of the knee," that it was difficult to walk, climb, and get in and out of chairs. He also stated that he experienced grinding and catching sensations. The Veteran is competent to report observable symptoms such as his knee giving way. Layno v. Brown, 6 Vet. App. 465 (1994). There is nothing in the record to indicate that the Veteran's statement at the time was not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, it has less probative value than the reports of the three VA examinations wherein the Veteran did not report instability and none was found upon examination. The preponderance of the evidence is against a finding of instability to warrant a separate evaluation under Diagnostic Code 5257. Separate ratings are also available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As noted above, the Veteran's limitation of flexion does not meet the criteria for a noncompensable evaluation under Diagnostic Code 5260 and his extension is normal. Therefore, separate evaluations under Diagnostic Codes 5260 and 5261 are not warranted. VAOPGCPREC 9-98 (1998); VAOPGCPREC 9-2004 (2004). Under Diagnostic Code 5258, dislocation of the semilunar cartilage, a 20 percent evaluation is warranted for frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a (2013). The criteria in Diagnostic Code 5258 are conjunctive, not disjunctive and therefore must all be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991). The evidence does not show the Veteran has had frequent locking in his right knee since his partial meniscectomy in March 2008. At his June 2008 VA examination, he specifically denied subluxation and dislocation. The VA examiner noted that one half of the Veteran's medial meniscus was surgically absent. However, the examiner specifically found that there was no effusion, dislocation, or locking. The June 2012 examiner noted the March 2008 partial meniscectomy but found that there was no locking or dislocation. The Veteran reported daily grinding and catching of his knee in his December 2008 substantive appeal. The Board finds that this competent, credible statement is less probative than the findings of the VA examiners because he did not report this symptom and locking was not found on objective examination. This symptom has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran reported effusion at his June 2008 VA examination. However, the examiner specifically found that the Veteran did not have effusion. The Veteran reported daily "signs of effusion" in his December 2008 Substantive Appeal. He is certainly competent to report symptoms such as swelling, but in this case the Veteran is not competent to diagnose himself with effusion, which is "the escape of fluid into a part or tissue." Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313 (2009); see also Dorland's Illustrated Medical Dictionary at 591 (30th ed. 2003). Significantly, the June 2012 VA examiner specifically found that the Veteran did not have frequent episodes of joint effusion. Therefore, the medical evidence of record is more probative than the Veteran's lay assertion that he has daily effusion. Even though the Veteran has frequent episodes of joint pain, he does not have frequent episodes of locking or effusion into the joint. Therefore, all criteria for a 20 percent evaluation under Diagnostic Code 5258 have not been met. Melson, 1 Vet. App. 334. Application of Diagnostic Code 5258 is not warranted. The Veteran underwent a partial meniscectomy in March 2008 for right knee pain, "probably a medial meniscus tear." Under Diagnostic Code 5259, symptomatic removal of the semilunar cartilage, a 10 percent evaluation is the only available rating and no criteria are specified. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2013). In VAOPGCPREC 9-98, VA's General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In this case, the June 2008 VA examiner noted that one half of the Veteran's medial meniscus was surgically absent. The June 2012 examiner noted the March 2008 partial meniscectomy and concluded that the residuals of the surgery were frequent episodes of joint pain and stiffness. However, Veteran's pain and stiffness are contemplated by the 10 percent rating already assigned under Diagnostic Code 5260. 38 C.F.R. § 4.71a (2013); see also DeLuca, 8 Vet. App. at 206. To assign a separate evaluation for residuals of his meniscectomy would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (2013). Therefore, the assignment of a separate evaluation under Diagnostic Code 5259 is not warranted. As for other potentially applicable Diagnostic Codes, the Veteran's knee has never been ankylosed, there is no malunion or nonunion of the tibia and fibula, and there is no genu recurvatum. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2013); see also VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998). Accordingly, application of these Diagnostic Codes is unwarranted. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of Diagnostic Code should be upheld if supported by explanation and evidence). Accordingly, the Veteran's right knee disability symptoms do not more closely approximate an initial disability rating in excess of 10 percent under Diagnostic Code 5260 or any other potentially applicable Diagnostic Code. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Veteran's symptoms from his right knee disability have not met the criteria for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. With respect to an extraschedular rating under 38 C.F.R. § 3.321(b), the applicable rating criteria adequately contemplate the manifestations of the Veteran's painful but noncompensable limitation of motion with some functional loss due to the factors set forth in DeLuca. The criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected right knee disability. See 38 C.F.R. § 4.1 (2013). Further, no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). C. Total Disability Rating Based on Individual Unemployability (TDIU) Finally, a TDIU is not warranted because the evidence does not show that his right knee disability renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Although the Veteran has been unemployed at times during the appeal period, the evidence did not show that it was solely because of his service-connected right knee disability, nor does he so contend. ORDER An initial disability evaluation in excess of 10 percent for a right knee disability is denied. REMAND The Veteran has periodically been prescribed valacyclovir, an oral systemic medication, for his herpes simplex. The record does not provide information as to the frequency or duration of his use of this medication. This information is necessary for the Board to adjudicate his claim. Accordingly, the case is REMANDED for the following actions: 1. Either through contacting the Veteran or his VA health care providers directly, or through his VA treatment records, determine the frequency of his prescriptions for valacyclovir (Valtrex) during the appeal period. For each period he was prescribed this medication, determine the duration of each treatment, in weeks, for each 12 month period during the appeal period. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs