Citation Nr: 1543098	
Decision Date: 10/07/15    Archive Date: 10/13/15

DOCKET NO.  11-02 729	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for lung cancer.  

2.  Entitlement to service connection for a cervical spine (neck) disorder, to include whether new and material evidence has been received to reopen a previously denied claim.  

3.  Entitlement to a separate compensable disability rating for radiculopathy of the right lower extremity.  

4.  Whether the reduction of the 10 percent disability rating for radiculopathy of the right lower extremity was proper.

5.  Entitlement to a separate compensable disability rating for radiculopathy of the left lower extremity.  

6.  Whether the reduction of the 10 percent disability rating for radiculopathy of the left lower extremity was proper.

7.  Entitlement to service connection for radiculopathy of the upper extremities secondary to a cervical spine condition.

8.  Entitlement to service connection for bilateral hearing loss.

9.  Entitlement to service connection for tinnitus.
 
10.  Entitlement to special monthly compensation based on aid and attendance.  

11.  Entitlement to service connection for the cause of the Veteran's death.  

12.  Entitlement to Dependency and Indemnity Compensation under 38 U.S.C.A. § 1318.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Bosely, Counsel





INTRODUCTION

The Veteran had active service from March 1969 to December 1970.  He died in November 2012.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  In August 2013, the appellant was substituted for the Veteran for the purpose of pursuing his claims.  

With regard to issues 11-12, there was some question as to whether the appellant intended to withdraw her appeal.  Specifically, she filed a notice of disagreement (NOD) in June 2013 after the RO sent her its June 2013 decision.  Then, in September 2013, she returned a form sent to her by the RO.  In this form, she marked an option stating "I wish to withdraw my appeal and have my claim reconsidered by the adjudication team based on the new evidence I submitted."  Then, after the RO issued a second rating decision in December 2014, she filed a statement in January 2015 emphasizing that the RO's form had been "worded very badly," and that it was not her intention to withdraw her appeal.  In this January 2015 statement, she asked that her appeal be "reinstated."  

The Board finds that reinstatement is not needed because her original appeal remains in effect.  Indeed, such a course would be unnecessary because the language of the RO's form is confusing and necessarily implies her disagreement with the prior decision by asking that it be "reconsidered," notwithstanding the language expressly withdrawing the appeal.  Thus, it would itself stand as an NOD, thereby renewing the appeal.  See 38 C.F.R. § 20.204(c) (2015).  Importantly here, the Court has made clear that the VA adjudication process "'is not meant to be a trap for the unwary . . . a stratagem to deny compensation [nor] a minefield'" for claimants.  See Percy v. Shinseki,  23 Vet. App. 37, 47 (2009) (quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009).  Furthermore, any withdrawal of an appeal must be explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).  As such, her original appeal must be considered to have remained in effect.  

In September 2013, the appellant withdrew a prior request for a Board hearing.  

The issues not allowed herein 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 died of lung cancer; he was exposed to a minimal or high level of asbestos during service; and the evidence makes it at least equally likely that the lung cancer resulted from asbestos exposure.  

2.  A prior claim of service connection for a neck condition became final when the Veteran did not appeal an April 1991 determination, but new and material evidence has been received since that time.  


CONCLUSIONS OF LAW

1.  Service connection for lung cancer is granted.  38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107, 5121 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). 

2.  Because evidence received since April 1991 is new and material, the claim of service connection for a neck disorder is reopened.  38 U.S.C.A. § 5103, 5103A, 5107, 5108, 7104 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Service connection

Lung Cancer 

The appellant contends that the Veteran's lung cancer was caused by either asbestos exposure or Agent Orange exposure during service.  

After careful consideration, the Board grants this claim as the evidence is evenly balanced on the question of whether the Veteran's lung cancer resulted from asbestos exposure in service.  

A.  Applicable Law

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).

In cases where it is claimed that asbestos exposure during service caused a current disability, the claim must be analyzed under VA administrative protocols.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997).  

According to these administrative protocols, VA must address two questions.  First, whether a veteran's service records demonstrate asbestos exposure during active duty.  If so, the second question is whether the evidence establishes a relationship between that exposure and the claimed disease.  VA ADJUDICATION PROCEDURE MANUAL M21-1, Part IV, Subpart ii, Chapter 2, Section C, para. 9 (December 13, 2005) (M-21).  The Board notes that these administrative protocols do not constitute a presumption of asbestos exposure; rather, they are a guideline for adjudication.  See VAOPGCPREC 04-2000 (April 13, 2000).  

With regard to the initial question, regarding asbestos exposure during service, the M21-1 defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies.  Common materials that may contain asbestos include steam pipes for heating units and boilers; ceiling tiles; roofing shingles; wallboard; fire-proofing materials; and thermal insulation.  Due to concerns about the safety of asbestos, the use of materials containing asbestos has declined in the United States since the 1970s.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(a).

Some of the major occupations involving asbestos exposure include 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 products, such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(f).

If it is determined that a Veteran was exposed to asbestos during service, the consequent question becomes whether there is a relationship between that exposure and the claimed disease.  According to the M21-1, inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis; tumors; pleural effusions and fibrosis; pleural plaques; mesotheliomas of pleura and peritoneum; and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system, except the prostate.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(b).  Specific effects of exposure to asbestos include lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis; gastrointestinal cancer that develops in 10 percent of persons with asbestosis; urogenital cancer that develops in 10 percent of persons with asbestosis; and mesothelioma that develops in 17 percent of persons with asbestosis.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(c).  Disease-causing exposure to asbestos may be brief, and/or indirect.  Id.  Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer.  Mesotheliomas are not associated with cigarette smoking.  Id.  The latent period for development of disease due to exposure to asbestos ranges from 10 to 45 or more years between first exposure and development of disease.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (9)(d).  

B.  Discussion

(1) Existence of a Present Disability

The Veteran died in November 2012.  The Certificate of Death identifies the immediate cause of death as "Acute respiratory failure" due to or a consequence of "Recurrent lung cancer with metastasis adjacent to spine T11-T12 possibly from exposure to asbestose [sic]."  Accordingly, a disability for service connection purposes is established.  

(2) In-Service Incurrence or Aggravation of a Disease or Injury

The Veteran's military occupational specialty (MOS) during service was seaman.  According to the M21-1, this rate would normally involve "minimal" exposure to asbestos.  See M21-1 IV.ii.1.I.3.c.  However, the Veteran, during his lifetime, wrote in an undated statement that he was exposed to asbestos while working in the Portsmouth Navy yard during times when his ship was in the yard.  According to the M21-1, "High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers."  IV.ii.2.C.2.e.  This record makes it likely that the Veteran was exposed to at least "minimal" asbestos and possibly "high" exposure.  
 
(3) Nexus

There is conflicting evidence as to whether the Veteran's asbestos exposure, as opposed to his history of smoking, caused his lung cancer.  

In favor of a nexus, three different doctors have indicated a positive nexus.  

First, as indicated, the Veteran's doctor, Dr. Shah, wrote on the Certificate of Death that the Veteran's lung cancer was "possibly from exposure to asbestose [sic] (service connected when worked on shipyard)[.]"  In an October 2013 letter, this same private doctor explained that he had treated the Veteran since June 2010, and that the Veteran "had a history of asbestose [sic] exposure while he was in the service.  I believe his asbestos exposure is suspected as a contributing factor for his lung cancer and death.  As you know the fact that lung cancer can occur many years after exposure to asbestos."  While not definitive, this doctor's opinion is some evidence tending to increase the likelihood of a nexus in this case.  

In August 2010, a different private doctor, Dr. Smiddy, wrote that the Veteran was "suffering from lung cancer, that he was exposed to asbestos over a six-month time period during service."  

In August 2010, a third private doctor, Dr. Shipstone, wrote a letter giving general information regarding the risk factors for lung cancer, which were given to include asbestos and lung cancer.  Then, the doctor asked, "We would appreciate your evaluation of his lung cancer in terms of his service to our county."  In the contemporaneous medical treatment report, this doctor's office noted that the Veteran had requested a letter saying his asbestos during service could have caused the cancer.  It was noted that the Veteran had:

[M]ultiple questions regarding etiology of his lung cancer.  We discussed the number of lung cancers that are caused by smoking.  We discussed possible contributing factors of asbestos, but that it would be very difficult to determine specific etiology of this.  We do know that asbestos exposure has been linked to increased numbers of lung cancers."  

These two private doctors did not explicitly opine that the Veteran's lung cancer was likely caused by asbestos exposure.  However, based on the overall context of these statements, it appears they were at least indicating such a relationship.  

Finally, the Board notes that the M21-1 affirmatively identifies the specific diseases that may result from exposure to asbestos to include "lung cancer that originates in the lung parenchyma rather than the bronchi, and eventually develops in about 50 percent of persons with asbestosis."  See M21-1 IV.ii.2.C.2.c (internal bulleting omitted).  The appellant, through her representative, submitted further medical literature in August 2015, which further reinforces this conclusion.  

In conflict with this positive information, a VA examiner in December 2014 offered the following opinion: 

Based on the review of all available medical records (In C-file and EMRs), review of available medical literature in this regard and in accordance with accepted medical principles and treatises, it is my medical opinion with a very high degree of medical certainty that the veteran's cause of death is not due to his minimal asbestos exposure during military service.

The Board notes that this is a very definitive medical opinion.  However, the probative weight of this examiner's opinion is materially undermined by the rationale offered:

This opinion is based on the information in medical literature which clearly indicates that parenchymal lung cancers ( small or non-small cell ) are heavily predisposed to by history of smoking and veteran did have a significant/heavy smoking history ( all the way until his lung cancer diagnosis was made).  Literature review is also clear on this issue that Asbestos exposure can lead to "Asbestosis" which can cause pleural lung diseases such as pleural plaques, pleural effusion, or mesothelioma cancer but exposure to asbestos is not linked to parenchymal lung cancers like the one [Veteran] had.  In this veteran there was no medical evidence that he even suffered from Asbestosis or other listed conditions that can develop secondary to exposure to asbestos.

(Emphasis added.)  Determinatively, the VA examiner's rationale is directly contradicted by the M21-1 itself, which expressly identifies "lung cancer that originates in the lung parenchyma" as a consequence of asbestos exposure.  The VA examiner did not identify which medical literature was reviewed.  Therefore, the Board has no basis to determine whether the VA examiner's rationale can be reconciled with the M21-1 and other supporting evidence.  Thus, the VA examiner's opinion must be considered nonprobative evidence, which cannot increase the likelihood that the Veteran's lung cancer was not related to his asbestos exposure.  

Thus, the Board must find that the positive evidence, while not definitive, is at least in equipoise with the negative evidence.  Therefore, the evidence is in equipoise on all material elements of the claim, and the appeal must be granted.  

II.  Reopening a Prior Claim

Neck

A.  Applicable Law - New and Material Evidence

(1) Finality of Prior Claims

A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief.  38 U.S.C.A. § 5104 (West 2014).  Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement (NOD), plus the periods in which an appeal must be initiated and perfected.  38 C.F.R. § 3.103(f).  A claimant may then initiate an appeal from a VA decision by the timely filing of a NOD in writing.  38 C.F.R. § 20.200; see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  An NOD is a written communication from a claimant or from his or her representative expressing (1) dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and (2) a desire to contest the result.  While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review.  38 C.F.R. § 20.201.  An NOD must be filed within one year from the date that the RO mailed notice of the rating decision.  See 38 C.F.R. § 20.302(a).  All filings by a claimant must be construed based on a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); see also 38 C.F.R. § 20.200.  

Generally, a VA decision becomes final if an NOD is not filed.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.1100, 20.1103.  It is, however, incorrect to assert that a rating decision is necessarily final because the Veteran failed to file a NOD.  See Buie v. Shinseki, 24 Vet. App. 242, 252 (2011).  

(2) Subsequent Evidence Received

If new and material evidence is received during an applicable appellate period following an RO decision or prior to an appellate (Board) decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  Pursuant to 38 C.F.R. § 3.156(b), when a claimant submits new and material evidence within the one-year appeal period after a rating decision is issued, the RO must readjudicate the claim, and failure to do so may render the claim pending and unadjudicated.  Beraud v. Shinseki,  26 Vet. App. 313, 318 (2013).  Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim."  Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a).  See Young v. Shinseki, 22 Vet. App. 461, 468.  (2009).

Moreover, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim.  See 38 C.F.R. §§ 3.156(c), 20.1000(b).

Otherwise, to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  "[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied."  Kent v. Nicholson, 20 Vet. App. 1, 10 (2006); see Bostain v. West, 11 Vet .App. 124, 127 (1998) (noting that the "last final disallowance" of a claim was the denial of a request to reopen).  

"New" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  See 38 C.F.R. § 3.156(a) (2013).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

New and material evidence is not required "as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).  "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence."  Id.  at 117.  Rather, it is simply "a component of the question of what is new and material evidence," and should be informed by the question of whether the "evidence could, if the claim were reopened, reasonably result in substantiation of the claim."  Shade, 24 Vet. App. at 117-18.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  For purposes of the "new and material" analysis, the credibility of the evidence is presumed unless it is "inherently false or untrue" or "patently incredible."  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  

Furthermore, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary.  See Shade, 24 Vet. App. at 118-19, 123.  If the McLendon standard is met, the claim should be reopened.  See id.

B.  Discussion

(1) Finality of Prior Claims

In this case, the Veteran's original claim of service connection for a neck condition was denied in April 1991.  The Veteran did not appeal that determination, no pertinent evidence was received during the appeal period, and the RO undertook no further action on the issue.  As such, it became final.  See 38 C.F.R. § 3.156; Percy, 23 Vet. App. at 45.  

(2) Evidence Previously Considered 

The claim was denied in April 1991 on the basis that "this condition is not shown to have been incurred in or aggravated by" his service.  

At the time of the April 1991 decision, the evidence of record included the Veteran's service treatment records (STRs) and a February 1991 VA examination, which noted (a) complaints of neck pain since an injury in service; (b) persistent neck pain; and (c) a straightening of cervical curve (no nexus opinion was given).  

(3) Subsequent Evidence Received

Since the April 1991 decision became final, considerable evidence has been added to the record.  This includes VA outpatient treatment record related to the neck, plus a more recent submission from the appellant's representative, which indicates that there may be a relationship between a gait disturbance and other orthopedic abnormalities and a neck condition.  

The Board finds that this evidence is "new" because it was not before the adjudicator in April 1991.  The Board also finds that the new evidence is "material" because it suggests a relationship between service or a service-connected disability.  This evidence is not cumulative or redundant of evidence previously of record, and it raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  Accordingly, this claim must be reopened.  This represents a complete grant of this relief sought on appeal.  The reopened claim is further addressed in the remand portion of this determination herein below.  


ORDER

Service connection for lung cancer is granted.  

Because new and material evidence has been received to reopen the claim of service connection for a neck disorder, the appeal to this extent is granted.   


REMAND

(1) Neck Condition and 
(2) Radiculopathy of the Upper Extremities

A VA examination is needed to evaluate the medical questions raised by the claim of service connection for a neck condition, to include whether the condition might be secondary to a service-connected low back disability.  The claim of service connection for radiculopathy is intertwined with the neck condition.  

(3) Radiculopathy of Lower Extremities

The appeal for a separate compensable rating for radiculopathy of the lower extremities must be remanded because the appeal raises two distinct appealable issues, which have not, so far, been separately adjudicated.  

Historically, the RO issued a rating decision in December 2009 granting a separate noncompensable rating for the left lower extremity.  The Veteran submitted a notice of disagreement (NOD) disagreeing with this determination.  In November 2010, the RO issued a statement of the case (SOC) addressing the left, but not right, lower extremity.  At the same time, the RO granted separate 10 percent ratings for each lower extremity from January 21, 2010.  The Veteran filed a VA Form 9 (substantive appeal) in January 2011.  In this form, he requested a hearing.  Then, in September 2011, the RO issued a rating decision proposing to reduce these 10 percent ratings based on clear and unmistakable error.  In February 2012, the RO issued a rating decision discontinuing the separate 10 percent ratings effective May 1, 2012.  In February 2012, a supplemental statement of the case (SSOC) was issued addressing the issue of entitlement to an increased (separate) ratings for the right and left lower extremity.  

To summarize, the RO issued separate compensable ratings for each lower extremity, then discontinued those ratings.  It must be understood that the Veteran disagreed with these reductions by continuing his appeal for increased ratings.  Thus, at present, the issue of the propriety of the reduction has been appealed, but has not been developed or adjudicated as a separate issue.  This should be accomplished.  

Manlincon Issues

Issues listed as 8-12 on the title page must be remanded for issuance of an SOC.  Rating decisions were issued in September 2013 and December 2014, respectively, after which the appellant filed a timely NOD, with respect to these issues.  Because an SOC has not been issued, they must be remanded.  See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 

Accordingly, the case is REMANDED for the following action:

1. Issue the appellant an SOC with respect to the following appeals:  (1) service connection for bilateral hearing loss; (2) service connection for tinnitus; (3) special monthly compensation based on aid and attendance; (4) service connection for the cause of the Veteran's death; (5) Dependency and Indemnity Compensation under 38 U.S.C. 1318.  

2.  Arrange for the relevant evidence to be forwarded to a person with appropriate expertise for a medical opinion regarding the claimed neck condition.  

The reviewer is asked to consider the relevant information, and then separately address each of the following questions:

(a) Is it at least as likely as not (i.e., at least equally probable) that a neck condition had its onset directly during service, became manifest within a one-year period following discharge from service, or was ultimately causally related to any event or circumstance of the Veteran's active service, to include his confirmed fall from a ship?

(b) Notwithstanding you answer to questions (a), is it at least as likely as not (i.e., at least equally probable) that a neck condition was proximately due to, the result of, or caused by a different medical condition, such as a low back disorder?

(c) Notwithstanding the answer to questions (a)-(b), is it at least as likely as not (i.e., at least equally probable) that a neck condition has been aggravated (made permanently worse or increased in severity by a different medical condition, such as a back disorder?  If yes, was that increase in severity due to the natural progress of the disease?

In answering questions (b)-(c), the examiner is asked to consider medical articles submitted by the appellant's representative in August 2015.  

(d) Does the Veteran have radiculopathy in either upper extremity that results from a neck condition?  

In answering all questions (a) to (d), the examiner is asked to consider all witness (non-medical) statements, including those of the Veteran (during his lifetime), regarding the onset and recurrence of his symptoms.  If indicated, it should be explained whether there is a medical reason to believe that the Veteran's recollection of his symptoms during and after service was inaccurate or not medically supported.  

Please articulate the reasoning underpinning all medical opinions.  That is, (1) identify what facts and information support your opinion, and (2) explain how the facts and information justify your opinion.  

3.  After completing all actions set forth in paragraph 2, plus any further action needed as a consequence of the development completed in paragraph 1, readjudicate the remanded appeal with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement.  

This must include separate consideration of the propriety of the reduction issues involving the lower extremity radiculopathies.  

If any benefit sought on appeal remains denied, the RO should furnish to the appellant and her representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations.  They must then be given the opportunity to submit further evidence and/or argument on all issues.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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 2014).




______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs