Citation Nr: 1604294 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 14-10 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for coronary artery disease, status post coronary artery bypass graft. 2. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran had active service from January 1951 to May 1971. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In October 2011, the RO granted service connection for the Veteran's cardiac disability, and assigned an initial 30 percent rating, effective August 31, 2010; as well as a 0 percent rating for associated surgical scarring. The Veteran submitted a notice of disagreement in November 2011 as to the initial rating assigned for his cardiac disability. He asserted that he was entitled to a 50 percent or higher rating, and that he became totally disabled from his prior employment in 1980 and was still unable to work due to his cardiac disability. The Veteran also submitted a claim for compensation for ischemic heart disease; however, as the RO explained, this condition is another name for his service-connected coronary artery disease; thus, there was no separate claim. In August 2013, the RO denied entitlement to a TDIU because the Veteran did not submit a formal claim (VA Form 21-8940) as requested. The Veteran then submitted a VA Form 21-8940 in August 2013. The RO readjudicated and denied this claim in the February 2014 statement of the case (SOC), as part of the claim for a higher rating for the service-connected cardiac disability. Moreover, the TDIU issue is under the Board's jurisdiction is part of the appeal for a higher rating for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran requested a Board hearing at the RO in his March 2014 substantive appeal (VA Form 9); however, he withdrew this request for a hearing in multiple written statements, to include in February 2015. No hearing is required. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran's cardiac disability has resulted in occasional dyspnea, fatigue, or angina, at a workload of greater than 5 METs but not greater than 7 METs; with an ejection fraction of greater than 50 percent; and there has been no acute or chronic congestive heart failure, placement of an automatic implantable cardioverter-defibrillator, myocardial infarction, heart transplant or other surgery, or sustained ventricular arrhythmia during the appeal period. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for the Veteran's cardiac disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7005 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran's claim arises from the initial rating assigned following the grant of service connection for his cardiac disability. Where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. No additional notice is required as to downstream issues, including the disability rating. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Veteran was provided adequate notice, including as to the evidence and information necessary to establish a disability rating, in January and February 2011 letters, prior to the initial 2011 rating decision. There is no allegation of prejudice concerning notice as to the downstream element, and no further notice is necessary. The AOJ assisted the Veteran by obtaining all identified, available treatment records, including VA and private records from primary care and cardiac providers. The Veteran was also provided VA cardiac examinations in February 2011 and January 2014, with an addendum report by another examiner in February 2014, after review of additional treatment records that were received after the January 2014 examination. The Veteran also submitted a private cardiac evaluation via a Disability Benefits Questionnaire (DBQ) in 2011. There is no argument or indication that the medical evidence is insufficient to decide the Veteran's claim or that his disability has worsened in severity since the last examination in January 2014. In sum, VA has satisfied its duties to inform and assist, at least insofar as any errors were not harmful to the essential fairness of the proceedings. There is no indication of additional notice or assistance that would be reasonably likely to aid the Veteran in substantiating the appeal. II. Analysis VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability, and different rating codes set forth applicable criteria. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology or manifestations of the conditions is not duplicative or overlapping. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Cardiac disabilities are rated, in part, on symptomatology that occurs at certain workload levels of METs. One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note 2. A 30 percent rating is assigned for coronary artery disease where a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 38 C.F.R. § 4.104, DC 7005. A 60 percent rating will be assigned where there is more than one episode of acute congestive heart failure in the past year; or workload greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent disability rating is warranted where there is chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. An evaluation of 100 percent is also assigned if there is an automatic implantable Cardioverter-Defibrillator in place. Id. The Veteran primarily relies on a letter from a prior provider, Dr. S, in September 1980, as showing that he is entitled to a higher disability rating. See, e.g., March 2014 VA Form 9. In this letter Dr. S. stated that the Veteran was totally disabled due to a cardiac disability, diagnosed as coronary artery disease (CAD), significant coronary insufficiency, and ventricular arrhythmia. Dr. S summarized that symptoms at that time were dyspnea and chest pain on exertion, relief with rest or nitroglycerin. The Veteran retired from his position with the U.S. Postal Service in 1980. This was approximately 30 years prior to the effective date of service connection for his cardiac disability. Therefore, it has very low probative value and does not establish a higher level of disability during the period on appeal. The evidence reflects that the Veteran had a myocardial infarction (MI, or heart attack) in 1980 and underwent cardiac catheterizations in 1980 and 1992, as well as a four vessel coronary artery bypass graft (CABG times four) in September 2006. In a February 24, 2011, DBQ form, the Veteran's private provider, Dr. S.P., stated that the Veteran had ischemic cardiomyopathy and CAD status post CABG. He noted a history of percutaneous coronary intervention (PCI) in 1980, myocardial infarction with no date specified, and coronary bypass surgery in 2006. There was no history of a heart transplant, implanted cardiac pacemaker, or implanted automatic implantable cardioverter defibrillator. Dr. S.P. checked that the Veteran had fatigue, but a cardiac functional assessment was not performed and no level of METs was identified. Dr. S.P. also checked that the Veteran's cardiac disability impacted his ability to work, but did not provide any detail or description for this. Also on February 24, 2011, the Veteran underwent a VA cardiac examination; the examiner provided a report in March 2011. The Veteran's treatment plan included taking continuous medication of atenolol 50 mg and aspirin 325 mg daily. This examiner stated that the Veteran's past myocardial infarction occurred with treatment in Tucson in 1980; and that the Veteran did not have acute or chronic congestive heart failure (CHF). A diagnostic exercise was not conducted, but the examiner indicated, based on the Veteran's reported symptoms, that he had dyspnea at greater than 5 but less than 7 METs. The examiner stated that there was no evidence of cardiac hypertrophy or dilatation based on a chest X-ray and EKG in February 2011 and an echocardiogram (echo) in March 2011; and that the LVEF was 60 percent based on a March 2011 test. The March 2011 echo report showed, inter alia, mild left atrial enlargement and LVEF of 55 to 60 percent. This examiner checked that the Veteran's cardiac disability did not impact his ability to work. In October 2011, the Veteran reported palpitations at a follow-up visit with his cardiac provider, Dr. J.G., but he denied symptoms of arm pain, chest pain, claudication, dyspnea, pedal edema, exercise limitation, fatigue, orthopnea, or paroxysmal nocturnal dyspnea. Subsequent treatment records from this provider also noted that the Veteran denied such symptoms, and he also denied palpitations; heart rhythm and other findings were normal upon examination. See, e.g., records in November 2011, February 2012, June 2012, June 2013, and July 2013. In November 2011, a cardiac study showed significant CAD. An arterial Doppler study of the lower extremities was unremarkable, and the reported noted that this mitigated against a hemodynamically significant area of stenosis in either extremity. Similarly, VA treatment records in December 2011 (in Virtual VA, CAPRI pp. 2, 8) noted that the Veteran was establishing primary care, he had CAD with a CABG x4 in 2006, old myocardial infarction (MI) with no symptoms, and no current complaints. The provider noted that the last stress test had been completed by Dr. G about a month earlier, the echo was okay, and he had a leg and AA study that was clear. The Veteran reported that he was still active and that he mowed, worked around the house, and walked 1 mile a day. Upon review of systems, he denied chest pain and reported good exercise tolerance. Physical examination showed no abnormalities, and the Veteran was to follow-up with his private cardiologist. In an assessment of daily activities, the Veteran reported that he took care of all shopping needs independent; planned, prepared, and served adequate meals; maintained his home alone with occasional assistance for heavy work; did his personal laundry completely; traveled independently on public transportation or drove his own car. A June 2013 stress report showed an abnormal stress echo, pre ejection fraction (EF) of 55 percent, and post EF of 60 percent. A July 2013 Echo Doppler report showed an estimated LVEF of 55 percent. The conclusions were segmental wall motion abnormality with normal LVEF; concentric left ventricular hypertrophy; dilated left atrium; and mild mitral, tricuspid, and pulmonic insufficiency. Records in December 2013 from Dr. S.P. noted that the Veteran's current treatment regimen for heart disease consisted of daily aspirin, a beta blocker, and a lipid lowering agent. No associated symptoms were reported or found on examination. The Veteran was afforded another VA cardiac examination in January 2014. At that time, the Veteran reported that he had been told in 1980 that he had a myocardial infarction (MI) based on an EKG. He underwent a cardiac catheterization at that time, but he was treated medically with no coronary intervention. The Veteran later developed angina, a stress test in 2005 was abnormal, and he underwent a four vessel CABG in 2006. The Veteran reported that, over time, he developed fatigue and mild dyspnea with moderate exertion, but he denied angina. He was taking four medications for his cardiac disability. This examiner again noted that the Veteran did not have CHF. The examiner indicated that, based on his reports during the examination, the Veteran dyspnea and fatigue at greater than 3 but less than 5 METs. There was evidence of cardiac hypertrophy or dilatation in February 2011 and July 2013, and the LVEF was 55 percent based on the July 2013 test, as noted above. This examiner stated that the Veteran's cardiac disability impacted his ability to work by limiting employment requiring moderate exertion; this was based on the Veteran's reports during the examination. At the time of the January 2014 examination, the records available for review did not include recent or current records from the Veteran's private primary care doctor or his cardiologist from July 2013. In a February 2014 addendum, another VA examiner provided an opinion based upon review of the claims file, including the records that were previously not considered. The February 2014 examiner noted that, during the January 2014 examination, the Veteran reported having dyspnea and fatigue at what would be a MET range of greater than 3 to 5. The examiner also noted that the Veteran's body mass index (BMI) was 33.5 and he was 81 years old; he opined that some dyspnea and fatigue might be expected for non-cardiac reasons based on those factors alone. This examiner noted that, in December 2013, Dr. S.P. recorded that the Veteran had no symptoms associated with his cardiac disability and that he walked daily. The VA examiner also noted that the private cardiologist, Dr. J.G., specifically stated in June and July 2013 that the Veteran had no dyspnea, arm pain, chest pain, edema, or exercise limitation. The examiner stated that, although a stress echocardiogram was interpreted as abnormal, there was only segmental wall motion abnormality and an LVEF of 55 percent; and Dr. J.G. did not deem a followup necessary before one year. This examiner stated that, based on the private records, and particularly the history that the Veteran reported to those doctors, as well as the other available data, the Veteran appeared to have few limitations of exercise based solely on his cardiac disability, and his exertional capability was in the MET range of greater than 5 to 7. The Veteran is competent to report observable symptoms of cardiac disability, such as fatigue, shortness of breath, or angina. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Neither the Veteran nor his representative, however, are competent, as lay witnesses, to offer an opinion as to whether any such symptoms are actually due to his cardiac disability, as opposed to other conditions or circumstances. Rather, in light of the Veteran's multiple medical conditions and the complex nature of the cardiologic system, this question requires medical training, knowledge, or experience to interpret the evidence. Id. The February 2014 addendum report to the 2014 examination is highly probative because it considered all pertinent evidence and applied medical knowledge to interpret the facts based on an accurate factual history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). In particular, this examiner considered the Veteran's reports as to the degree of his symptoms during activities requiring certain levels of exertion, as well as the notations of his medical providers and the Veteran's reports during those treatment sessions. The February 2014 examiner noted that the primary care and cardiac treatment records strongly suggested a better exercise capability than the impression that the Veteran conveyed during the January 2014 the VA examination, at least with regard to the cardiac component of limitations. This examiner's summary of the information contained in treatment records in 2013 is consistent with the Board's review of those records, as summarized above. The Veteran had a strong motive to tell the truth when he sought treatment in order to receive proper care. See Fed.R.Evid. 803(4) (generally finding statements for the purposes of medical diagnosis or treatment to be reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (the Board may cite to the Federal Rules of Evidence where they will assist in the articulation of reasons for a decision). Moreover, again, although the Veteran may report his noticeable symptoms, he is not competent to identify whether they are due to his cardiac disability. Jandreau, 492 F.3d at 1376-77. Thus, the Veteran's reports regarding his exertional level are outweighed by the other evidence. Additionally, earlier private treatment records in 2011 and 2012, as summarized above, showed a similar of symptomatology for the Veteran's cardiac disability. Although a 2011 cardiac study noted "significant" CAD, it is the manifestations of that condition that must be considered in determining the appropriate rating. The Veteran consistently denied symptoms pertinent to the diagnostic codes from 2011 through 2013, with the exception of one report of palpitations in October 2011, although he denied all other symptoms at that time as well. VA treatment records in December 2011 also noted that the Veteran had no symptoms or current complaints relating to his CAD, and he was active, had good exercise tolerance, and engaged in activities including mowing, working around the house and maintaining things with occasional assistance with heavy items, walked daily, and completed other activities of daily living independently. As noted by the February 2014 VA examiner, the December 2013 private record also noted that the Veteran had no symptoms associated with his cardiac disability and that he walked daily; and records in July 2013 (as well as in 2011 and 2012) noted that the Veteran denied symptoms or any exercise limitations. Further, the Veteran reported that his symptoms had developed over time, and there was no indication that his symptoms or disability level increased between these treatment sessions and the 2014 examination. The February 2014 examiner gave an opinion as to the cause of the Veteran's dyspnea and fatigue considering his cardiac disability along with other factors that contribute to these symptoms, and the level of exertional capability based on cardiac symptoms. The opinion is consistent with the 2011 VA examiner's estimation of MET levels based on similar symptoms and effects on activity as reported throughout the appeal period, as shown by the Veteran's reports for treatment purposes since at least 2011. Indeed, private records from Dr. S.P. in November 2008 and July 2009 noted that the Veteran was doing "very well" with CAD on aspirin after his CABG. The Veteran denied chest pain or shortness of breath. Similarly, a September 2009 internal medicine treatment record from Dr. J.M. noted that the Veteran reported that he seldom had angina and had good exercise tolerance since having a bypass surgery for his CAD, and he denied dizzy spells or palpitations. The January 2014 examiner's estimation of the MET level is outweighed by the February 2014 examiner's opinion because the January examiner did not have the additional pertinent evidence, to include private records in 2013, for review. In sum, the Veteran's cardiac disability has required continuous medication, and the weight of the evidence shows that he had occasional dyspnea, fatigue, and angina due to his cardiac disability resulting from a workload of greater than 5 METs but not greater than 7 METs during the appeal period. The Veteran also had cardiac hypertrophy and dilatation shown by echocardiogram and EKG. This symptomatology meets the 30 percent rating criteria. 38 C.F.R. § 4.104, DC 7005. Other than based on the MET levels, a higher rating is not warranted for the Veteran's cardiac disability because his LVEF was consistently higher than 50 percent, ranging from 55 to 60 percent during the appeal period. Further, there has been no acute or chronic congestive heart failure, and the Veteran does not have an automatic implantable cardioverter-defibrillator. Id. Although there were some notations of congestive heart failure and LVEF of 50 percent or less, these were several years prior to the appeal period. See, e.g., August 2005 and June 2006 private records. Moreover, these records were prior to the Veteran's CABG in September 2006, after which time he reported improved symptoms. There is also no indication that the Veteran had a coronary bypass surgery or a myocardial infarction (heart attack) during the appeal period. Instead, the last myocardial infarction was in 1980, and his coronary bypass surgery was in 2006. Thus, a 100 percent rating is not warranted based on a myocardial infarction or for the three months following such condition or coronary bypass surgery. See id. DCs 7017 (for coronary bypass surgery) & 7006 (for myocardial infarction). Although the 1980 letter also noted ventricular arrhythmia, the Veteran's heart rate and rhythm were consistently noted as normal during the appeal period; therefore, a higher rating is not wanted for sustained ventricular arrhythmia. Id. at DC 7011. Otherwise, these diagnostic codes provide for ratings of 10, 30, 60, or 100 percent based on the same criteria as DC 7005. 38 C.F.R. § 4.104. The Veteran has not had a heart transplant, so a higher rating is not warranted under DC 7019. Id. Only one rating may be assigned for the same disability manifestations. See 38 C.F.R. § 4.14. VA has a duty to maximize benefits when considering ratings on appeal. In this regard, the February 2011 and January 2014 VA examiners noted that the Veteran had scars on his left leg from graft donor sites and on his chest at the midline sternum from his CABG in 2006. The Veteran did not appeal from the assignment of a noncompensable (0 percent) initial rating for his surgical scars. Moreover, the evidence does not indicate that a compensable rating is warranted based on the size of the scars, tenderness or instability of one or more scars, or limitation of function due to the scars. See 38 C.F.R. § 4.118, DC 7801 to 7805. Accordingly, the Veteran is not entitled to a separate or higher rating for his cardiac disability, upon consideration of all potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). A staged rating is not warranted, as the Veteran's symptomatology remained relatively stable throughout the appeal period, and any increases in severity were not sufficient for a higher rating as discussed above. See Fenderson, 12 Vet. App. at 126-127. The evidence is not sufficient to decide the question of entitlement to higher rating for a TDIU. Extraschedular consideration under 38 C.F.R. § 3.321(b) and TDIU are not inextricably intertwined as a matter of law, but both issues require a complete picture of the service-connected disabilities and their effects on employability. Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, if either referral for extraschedular consideration or TDIU is denied, the Board should take care to ensure that a remand of the other aspect of a claim does not order further development pertinent to the denied issue. Id. For example, where remand of TDIU is necessary to attempt to obtain potentially favorable material evidence that may also be relevant to the issue of referral for extraschedular consideration, remand of both issues is warranted. Todd v. McDonald, 27 Vet. App. 79, 90 (2014). In this case, the remand development is to refer the case for an extraschedular opinion regarding entitlement to a TDIU; this does not require obtaining additional evidence but, rather, interpretation of the available evidence by a VA official. Cf. Brambley v. Principi, 17 Vet App 20 (2003); see 38 C.F.R. § 4.16(b). As such, the Board may determine whether this case should be referred for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). In this regard, the Veteran's cardiac disability required continuous medication, and resulted in dyspnea and fatigue with exertion at times, as well as hypertrophy and dilatation of the heart, with ejection fraction above 50 percent, as discussed above. Such symptomatology is fully contemplated by the schedular rating criteria. Therefore, the rating schedule is adequate, and it is not an exceptional or unusual disability picture. Moreover, the Veteran has not had frequent periods of hospitalization, and he has been unemployed throughout the appeal period. Thus, referral for consideration of an extra-schedular rating under § 3.321(b)(1) is not necessary. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Further, applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no symptoms of the disability on appeal that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate for a disability that can be attributed only to the combined effect of multiple conditions. Cf. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The preponderance of the evidence is against a rating in excess of the currently assigned rating for the Veteran's cardiac disability. As such, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 C.F.R. § 4.3. ORDER An initial rating in excess of 30 percent for coronary artery disease, status post coronary artery bypass graft, is denied. REMAND A TDIU may be granted where the schedular disability rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. If there is more than one service-connected disability, to meet the schedular percentage threshold for a TDIU, there must be one disability rated at least 40 percent disabling, and additional disabilities to combine for at least a 70 percent rating. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran does not meet this threshold because his combined total evaluation for cardiac and other disabilities is 40 percent. A TDIU may be granted on an extraschedular basis, however, if he is unemployable due to service-connected disabilities, after referral to VA's Under Secretary for Benefits or Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). There is some indication that the Veteran may not be able to perform the duties of his former occupation. Contrary to the AOJ's notations in the SOC, there is no requirement of a total inability to work, or to be incapable of all types of employment, including light or sedentary. Instead, the Veteran's prior education, training, and work history must be considered in determining unemployability. See 38 C.F.R. §§ 4.16, 4.19. As noted above, a 1980 letter from the Veteran's prior provider indicated that he was totally disabled due to his cardiac disability, with symptoms including dyspnea and chest pain on exertion. The Veteran's symptoms improved after his 2006 surgery, but there are still medical opinions from 2011 and 2014 that the Veteran was at least partially unemployable due to cardiac disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the issue of entitlement to TDIU to the Director of VA's Compensation Service, for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) (2015). 2. If the benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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 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 expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs