Citation Nr: 1514836 Decision Date: 04/07/15 Archive Date: 04/21/15 DOCKET NO. 13-17 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to sleep apnea, to include as due to in-service asbestos exposure. 2. Entitlement to service connection for a respiratory disability, to include as due to in-service asbestos exposure. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, to include as due to asbestos exposure. 4. Entitlement to service connection for hypertension, to include as due to asbestos exposure. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from March 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran later testified before the undersigned at a February 2014 Video Conference hearing. The hearing transcript is of record. The Board must decide on its own whether new and material evidence sufficient to reopen the claim of entitlement to service connection for hypertension has been received prior to considering the merits of that underlying issue. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of entitlement to service connection for sleep apnea, hearing loss, and hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have a current respiratory disability. 2. In an unappealed rating decision issued in August 1996, the RO denied the Veteran's claims for service connection for hypertension. 3. The evidence associated with the claims file subsequent to the August 1996 denial includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). 2. The August 1996 rating decision which denied service connection for hypertension is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104 (2014). 3. The evidence received since the August 1996 denial is new and material, and the claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, 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. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Regarding the issue of service connection for a respiratory disability, the Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. A July 2009 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. This letter also informed the Veteran of disability rating and effective date criteria. The Veteran has had ample opportunity to respond and supplement the record. Regarding the application to reopen the claim for service connection for hypertension, since the claim will be reopened, no further discussion of the VCAA is necessary with respect to this claim. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA has obtained records of treatment reported by the Veteran, including service treatment records, and private treatment records. The Board also acknowledges that the Veteran has not been afforded a VA examination for his claimed lung disability. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As discussed below, no competent evidence of a diagnosis or symptoms of a lung disability has been submitted. Accordingly, it was not necessary to obtain a medical examination or medical opinion in order to decide the claim for service connection for a lung disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Claim to Reopen As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Analysis In an August 1996 rating decision, the RO denied service connection for high blood pressure due to Agent Orange exposure, based on a finding that there was no presumption of service connection based on exposure to herbicides in Vietnam for hypertension. The RO also noted that the Veteran reported that he was not initially treated for hypertension until January 1996, and there was no evidence that he had been treated for hypertension in service or within one year of his discharge from active duty. The Veteran did not file an appeal and the decision became final. The Veteran's current claim to reopen was received in May 2009. Evidence of record at the time of the August 1996 rating decision included the Veteran's service treatment records that showed no complaint or manifestation of hypertension while the Veteran was on active duty and post-service treatment records that were negative for any evidence of hypertension in the years immediately following service. There was no medical opinion of record that established any relationship between service and the development of hypertension. As hypertension was not shown to have been related to Agent Orange exposure in service, manifested during service, within one year thereafter, or otherwise related to service, the claim was denied. See Boyer v. West, 210 F.3d 1351 (Fed. Cir 2000). Evidence received subsequent to the August 1996 rating decision includes private treatment records, which show a current diagnosis of hypertension, and the Veteran's reports that his hypertension is related to his conceded exposure to asbestos during active duty. The record also includes the Veteran's reports during his February 2014 Video Conference hearing that his hypertension possibly developed as a result of his him having to take salt tablets during active duty. As before the August 1996 decision, there are no nexus opinions relating the Veteran's hypertension to his active military service, asbestos exposure therein, or his claimed regimen of salt tablets during service. However, while some of the Veteran's assertions are deemed cumulative, the Board can find no statements in the record at the time of or prior to the August 1996 decision in which the Veteran asserted that his excessive use of salt tablets during service contributed to his development of hypertension after service. Accordingly, given the low threshold applicable to the evidence needed to reopen claims under Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that this newly expressed theory and testimony is new and material since it could be substantiated through further development, and that the reopening of the claim is therefore warranted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Respiratory Disability The Veteran contends that he has a current lung disability, which developed as a result of exposure to asbestos during active military service. Service personnel records indicate that he served aboard the USS Hollister from September 1970 to November 1970 and that his military occupational specialty (MOS) was Machinist's Mate, an occupation associated with probable exposure to asbestos. Thus, the evidence indicates and the RO has conceded that the Veteran may have been exposed to asbestos in service. However, service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a lung disability during service or at the time of the Veteran's discharge. The post-service medical evidence of record, which consists of private treatment records, shows that the Veteran has reported a past medical history of allergic rhinitis and bronchitis. The Veteran also reported during his February 2014 Video Conference hearing that he suffers from a sinus condition. However, there is no evidence of any definitive diagnosis of a respiratory disability in the record. In this regard, private treatment records dated October 2011 show that the Veteran's lungs were clear and although obstructive sleep apnea was diagnosed, there was no evidence of a respiratory disability. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet App 319 (2007). The Veteran is competent to report that he was exposed to asbestos in service and that he subsequently developed a respiratory disability. However, an underlying disability has never been identified. There are no other findings of a respiratory disability in the record. In essence, the evidence of a current diagnosis of a respiratory disability is limited to the Veteran's own statements. The Veteran is competent to report his symptoms, but his reports are not competent evidence of the claimed disability since laypersons, such as the Veteran, are not qualified to render a medical diagnosis. 38 C.F.R. § 3.159(a)(1),(2) (2014). In light of the absence of any competent evidence of a respiratory disability in service or thereafter, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Service connection for a respiratory disability is denied. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, and the request to reopen is granted. REMAND Sleep Apnea The Veteran contends that his currently diagnosed sleep apnea developed as a result of exposure to asbestos in service. VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he was exposed to asbestos in service. His service personnel records indicate that he served aboard the USS Hollister from September 1970 to November 1970 and that his military occupational specialty (MOS) was Machinist's Mate, an occupation associated with probable exposure to asbestos. Thus, the evidence indicates and the RO has conceded that the Veteran may have been exposed to asbestos in service. Current medical evidence of record shows that the Veteran was diagnosed with obstructive sleep apnea based on the findings of a polysomnogram study in June 2005. In an April 2014 statement, the Veteran's private physician noted that the Veteran was diagnosed with obstructive sleep apnea in June 2005, but stated that it was impossible to know when he first began to suffer with the disability since he did not undergo a sleep test prior to that time. The doctor indicated that a review of the Veteran's past medical records could be helpful. The Board finds that the doctor's statement lacks probative value, due to its indefinite nature and the fact that the doctor suggested that he had not reviewed the Veteran's medical records, but more importantly, the statement does not support the Veteran's claim. There is no other medical opinion of record addressing the etiology of the Veteran's claimed sleep apnea. The Board finds that as the Veteran may have been exposed to asbestos in service and has been diagnosed with sleep apnea, a VA examination is necessary to determine whether his sleep apnea is related to service. Bilateral Hearing Loss The Veteran contends that his currently diagnosed bilateral hearing loss is related to noise exposure during active military service. VA must make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(c), (d) (2014). The duty to assist contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4) (2014). Service treatment records show that the Veteran was noted to have hearing loss on the right at the time of his induction physical. Hearing was within normal limits for the left ear. Hearing was recorded as normal for both ears at the time of the Veteran's separation physical in November 1970. The Veteran's personnel records show that his military occupational specialty (MOS) was Machinist's Mate, an occupation associated with noise exposure. Accordingly, the Board finds that considering the places, types, and circumstances of his service, noise exposure in service is conceded. 38 U.S.C.A. § 1154(a) (2014). In-service incurrence of injury is therefore met as to acoustic trauma. It is not in dispute that the Veteran has current bilateral hearing loss. The question is whether the disability is related to service. The Veteran was afforded a VA audiological examination in August 2010. The Veteran reported noise exposure in service from engines while serving in the Navy, without the use of hearing protection. He also reported post-service noise exposure while working as a pipe inspector, with hearing protection used occasionally, and recreational noise exposure from fire arms, power tools, and lawn equipment, with hearing protection. The examiner noted as discussed above, that the Veteran was noted to have right ear hearing loss at the time of induction, but hearing was noted to be within normal limits at separation, per whispered voice test. The examiner diagnosed the Veteran with normal to profound sensorineural hearing loss on the right, and normal to severe sensorineural hearing loss on the left, and concluded that because the whispered speech evaluation (which showed hearing within normal limits in both ears), given at the time of the Veteran's separation, is known to be unreliable because it is insensitive to high frequency loss; he could not determine without resorting to speculation if the current right hearing loss was aggravated in service, and if the current left ear hearing loss was due to noise exposure in service. The Board finds that due to the indefinite nature of the examiner's opinion, it is inadequate and does not contain enough information upon which to base a decision. VA regulations provide that, where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2014); see 38 C.F.R. § 19.9 (2014). Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner was not required to state with certainty whether the Veteran's hearing loss was related to military service, including noise exposure, although the opinion implies that she was under the impression that the opinion required such certainty. In addition, an examiner's reports that he or she cannot provide an opinion without resort to speculation, is inadequate unless the examiner provides a rationale for that statement and states whether there is additional evidence that would enable the necessary opinion to be provided. Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner did not adequately explain why she could not provide the opinion without resort to speculation, nor did she indicate whether there was other evidence or information that she could use to adequately form the opinion. Hearing loss is manifested by symptoms that the Veteran is competent to report. The Veteran's reports provide competent and credible evidence of hearing loss during active military duty and a continuity of symptoms since. Therefore, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current bilateral hearing loss is necessary. 38 U.S.C.A. § 5103A(d) (West 2014). Hypertension As was noted previously, the Veteran has recently raised the additional contention that his excessive intake of salt tablets during service contributed to his development of hypertension many years after service. Consequently, as there has never been an opinion provided in this regard, the Board finds that an appropriate examination should also be scheduled for an opinion as to whether excessive salt intake during several years of active service can lead to the development of hypertension years after service. The appellant is advised that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2014). Accordingly, the case is REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. After undertaking the above development to the extent possible, the RO should schedule the Veteran for a VA examination to determine the etiology of his current sleep apnea. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current sleep apnea is related to service, to include due to exposure to asbestos. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the appellant is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Then, afford the Veteran a VA examination to determine the etiology of his hypertension. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current hypertension is related to service, to include as due to his excessive intake of salt tablets during service and exposure to asbestos. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the appellant is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, afford the Veteran a VA examination to determine the etiology of his currently diagnosed bilateral hearing loss. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should elicit from the Veteran a detailed account of any instances of noise exposure before and after service, and whether the Veteran used hearing protection devices. The examiner is advised that military noise exposure is conceded. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current hearing loss is the result of noise exposure or other injury or disease in active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any pre-existing right ear hearing loss was aggravated (increase in severity beyond the natural progression of the disease) by noise exposure or other injury or disease in active service. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the appellant is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. After completion of the above and any other development deemed necessary, review the expanded record, and readjudicate the remaining issues on appeal. If any claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate consideration. 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 2014). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs