Citation Nr: 1605503 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 07-38 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1 Entitlement to a rating in excess of 30 percent for the Veteran's status post left total knee arthroplasty (left knee disorder). 2. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran had active service from September 1961 to September 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). In October 2011, the Board remanded the appeal to provide the Veteran with the hearing he had requested before a Veterans' Law Judge traveling to the RO. In October 2012, the Veteran withdrew this hearing request. The matter was remanded again in October 2013, and has been returned to the Board once again for appellate review. The Veteran's record before the VA consists of an electronic record located in Veterans Benefits Management System (VBMS)/Virtual VA. In the January 2016 informal hearing presentation, the Veteran's representative asserts claims of secondary service connection for the right knee and back disability and prostate cancer, as well as left leg post-phlebitic problems and heart problems, as well as interstitial lung disease based on aggravation. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Status post left total knee arthroplasty (left knee disorder), is manifested by left knee pain awakening him at night and on movement, instability, swelling, disturbance of locomotion, and limitation of motion to, at worst, 85 degrees of flexion and 0 degrees of extension; these manifestations more nearly approximate intermediate degrees of residual weakness, pain, or limitation of motion than chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. Resolving reasonable doubt in the Veteran's favor, mild symptoms of left knee instability have manifested throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for status post left total knee arthroplasty (left knee disorder) have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2015). 2. The criteria for a separate 10 percent rating, and no more, for left knee instability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.10, 4.71a, Diagnostic Code 5257 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Compliance with Stegall As noted in the Introduction, the Board previously remanded this claim in October 2011 for a hearing request, which was withdrawn, and again in October 2013. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). There was substantial compliance with the latter remand directives. To that end, outstanding VA treatment records were requested and obtained, medical records associated with his Social Security Administration (SSA) disability claim were obtained, a release for private records was sent to the Veteran, examination with adequate opinion was obtained in May 2015 and the claim has been readjudicated in a March 2015 Supplemental Statement of the Case (SSOC). II. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). The duty to notify requires VA to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was advised by February 2007 and April 2014 letters, in combination, of the evidence and information necessary to substantiate his claims and the responsibilities of the Veteran and VA in obtaining such evidence. While complete notice was not provided prior to the rating decisions now on appeal, the claims were readjudicated subsequent to the Veteran's receipt of fully-compliant VCAA notice in the aforementioned SSOC. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated available service treatment records and VA treatment records with the file. Private treatment records identified by the Veteran are of record, as are SSA records. The record does not indicate and the Veteran has not notified VA that additional VA medical records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded VA examination most recently in May 2014 for the issue on appeal. The examination was thorough and contains appropriate findings and supported conclusions to rate the disability. As a result, the Board finds that VA has complied with its duty to assist in terms of providing an examination. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. III. Analysis and Discussion At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2015). In general, all disabilities, including those arising from a single disease entity, are rated separately; however, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2015). The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he or she should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Board will consider whether further staged ratings are appropriate. The Veteran essentially contends that his left total knee replacement is more severe than contemplated by the current 30 percent evaluation. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45 , 4.59 (2015). Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca, 8 Vet. App. at 202. The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14 (2015). The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. The Board notes that the provisions of 38 C.F.R. § 4.40 (2015) and 38 C.F.R. § 4.45 (2015) should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Additionally, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. § 4.40 and 4.45, but may cause functional loss if affecting some aspect of the normal working movements of the body, such as exertion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In this case, the service-connected left knee replacement is evaluated under 38 C.F.R. § 4.71a, DC 5055. Under DC 5055, for one year following implantation of a knee prosthesis for service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned, when there are intermediate degrees of residual weakness, pain, or limitation of motion. These intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, DCs 5256, 5261, or 5262. See 38 C.F.R. § 4.71a, DC 5055. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. The Board further notes that VA's Office of General Counsel held in VAOPGCPREC 23-97 that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additionally disability is shown, a veteran rated under 5257 can also be compensated under 5003 and vice versa. The Board finds for the reasons herein that the preponderance of the evidence is against a rating in excess of 30 percent for service-connected left knee disability under DC 5055. It also finds, however, that a separate 10 percent rating is warranted for instability under DC 5257 at all times relevant to the claim. Historically, service connection for left knee disability was granted in a 1977 rating action, along with a 10 percent rating. Thereafter, following a total knee replacement, the Veteran was awarded a temporary 100 percent rating from July 2005 through August 2006, after which the rating was reduced to 30 percent. He appeals this current 30 percent rating, set forth in the December 2006 rating decision. VA treatment records reflect that the Veteran underwent a total left knee replacement in July 2005 and thereafter was followed with conservative management. VA examination in October 2006 showed dull, constant pain associated with prolonged standing and walking long distances as well as with arising from sitting. He denied significant flare-ups or incapacitating pain requiring bed rest or hospitalization. He complained of mild instability but denied any significant buckling or locking. On examination, there was a moderate antalgic gait, left lower extremity, but he ambulated without the aid of assistive devices. Left knee flexion was -10 degrees extension to 0, flexion to 85 degrees with associated discomfort. Collateral ligaments were intact and there was 1+ anterior cruciate laxity for instability pattern for the left knee. Pain to palpation was over the mediolateral joint line space, reproduced with passive range of motion. X-rays revealed total knee arthroplasty with satisfactory alignment. The impression was left total knee arthroplasty for posttraumatic osteoarthritis with chronic swelling, synovitis and loss of range of motion. The examiner could not assess DeLuca criteria because exercise testing was contraindicated. SSA records reflect that the Veteran was granted disability under that agency's rules in a February 2006 determination based on bilateral total knee replacements and prostate malignancy. In May 2014, the Veteran underwent an additional VA examination of the left knee. He reported daily left knee pain that awakens him at night. His pain is aggravated by ambulation. He denied other left knee surgeries. He ambulated with an antalgic gait. He was taking no medication for his knee condition. He denied flare-ups impacting function of the knee. Flexion was to 100 degrees not additionally limited with pain; extension was 0 degrees. Range of motion was not diminished following 3 repetitions. Functional loss included reduced movement, pain on movement, swelling and disturbance of locomotion. Anterior instability of 2+ was noted in the left knee as well as 1+ medial lateral instability of the left knee. There was no recurrent subluxation or dislocation. There was not functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner assessed intermediate degrees of residual weakness, pain or limitation of motion. He also observed that the Veteran's left knee and leg limit him to sedentary employment only. His ambulation is likely limited by comorbidities in addition to his bilateral knee conditions, including his left total knee arthroplasty. It was not possible determine how much this Veteran was limited by his knee as compared to his other known comorbidities. This Veteran's last gainful employment involved working as a mechanic at a power plant. At examination his left knee condition would prevent him from doing this job. Veteran did not have left knee severe painful motion or weakness. His left knee did have increased swelling compared to his left. In addition his left leg venous stasis was worse that his right leg. Finally, he did have some ligamentous instability regarding his left knee. The examiner also noted that it was impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the left knee was used repeatedly over a period of time. Ongoing VA treatment records dated into early 2015 reflect complaints of left knee pain and instability. Considering the entirety of the evidence, including the treatment records, VA examinations, and lay statements, and the functional limitations identified by VA examiners, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's left total right knee replacement rating under DC 5055. See 38 C.F.R. § 4.71a , DC 5055. Consistent with the 2014 examiner's assessment as to intermediate degree of disability, rating should be assigned by analogy to DC's 5256, 5261 or 5262. However, application of these DC's does not produce a rating in excess of 30 percent in this case. The Veteran's range of motion has been between zero degrees of extension (which is normal) and 85 degrees of flexion. This is well above the threshold for a compensable rating under either 5260 or 5261. Accordingly, a minimum 30 percent rating is assigned. Moreover, because DC 5055 contemplates painful and/or limited motion and weakness, rating the Veteran's right knee under both DC 5055 and DC 5256, 5257, 5258, 5260, or 5261 would compensate the Veteran's symptoms twice. Double compensation, or pyramiding, is prohibited under 38 C.F.R. § 4.14 (2015). Notably, a 60 percent rating is not approximated in this case. The reports of pain and weakness in the record are not considered to approximate severe painful motion or weakness. Again, it is noted that the 2014 examiner assessed intermediate levels of residual pain, weakness and limited motion. The Board finds this assessment to be well-supported and consistent with the treatment records and thus highly probative as to the degree of pain and weakness present. In this regard, severe weakness has not been observed on either examination, muscle strength was normal. The Veteran reportedly takes no medication for the knee symptoms. It is reasonable to infer that the Veteran would take pain medication if there was severe painful motion. As to instability, the Board notes that the Veteran has demonstrated slight instability at all times relevant to the appeal period. This is evidenced by both the 2006 and 2014 examination reports. Accordingly, a 10 percent rating is assigned under DC 5257. However, the preponderance of the evidence is against a finding in excess of 10 percent. There is no finding by an examiner of moderate instability. Specifically, the 2006 examination showed 1+ anterior cruciate laxity for instability only and the instability was described as mild. The Board finds this evidence of mild instability only and notes it does not show any recurring subluxation. Moreover, the 2014 examination also demonstrates what the Board finds is at most mild instability, as there is anterior instability of 2+ and 1+ medial lateral instability. Posterior instability was not shown. There was no recurrent subluxation or dislocation. Overall, the Board finds this does not suggest moderate instability. As noted, the Board has considered the Veteran's statements regarding his left knee. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report symptoms such as pain and instability as a result of his total knee replacement, as such symptoms are observable by a layperson. However, as to the specific rating criteria, the Board finds the examination reports more probative. The Board next finds that the record does not support granting a rating in excess of 30 percent at any time for the Veteran's service-connected left knee disability. The Board cannot identify any manifestations of the left knee disability that satisfy any higher rating criteria. In reaching this rating determination, the Board has considered whether, under Hart a different rating might be warranted for any period of time during the pendency of this appeal. See Hart, supra. The Veteran's ongoing pain, weakness and instability, described in his written statements in detail, approximate intermediate residuals; there are no findings that show any appreciable varying degree of disability. Intermediate levels of disability are not shown. Therefore, staged ratings are not appropriate in this case. In summary, the competent evidence does not demonstrate that a schedular rating of 60 percent is warranted for service-connected left total knee replacement at any time during the applicable period on appeal. The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2015); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Id. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2015). The Board finds that referral of the left knee disability for extraschedular consideration is not warranted. The manifestations of the Veteran's service-connected left total knee replacement are contemplated and reasonably described by the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2015). In this regard, the Veteran's left total knee replacement has been manifested by pain, weakness, limited motion and instability throughout the entire appeal period. This type of disability picture is specifically addressed in the rating criteria set forth in the above Diagnostic Code. In sum, the Board finds that a comparison of the Veteran's left total knee replacement with the schedular criteria for the disability does not show that it presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2015). Consequently, the Board finds that the available schedular evaluations are adequate to rate this disability. As such, in the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). ORDER For the entire rating period, a 10 percent rating, and no more, for left knee instability is granted, subject to the laws and regulations governing the payment of VA compensation. A rating in excess of 30 percent for the Veteran's status post left total knee arthroplasty (left knee disorder) (exclusive of the separate 10 percent rating for left knee instability) is denied. REMAND In the January 2016 brief presentation before the Board, the Veteran's representative urges that additional development be undertaken prior to the adjudication of the TDIU. Specifically, it is asserted now that the Veteran is unable to work due to the combined effects of his multiple service-connected disabilities. Subsequent to the SSOC denying TDIU, service connection was granted for tinnitus and hearing loss disability. In the February 2014 examination report for the left knee, the examiner noted that the Veteran's left knee and leg limit him to sedentary employment only. Additional evidence has been added to the record relevant to the issue of TDIU since the issuance of the March 2015 SSOC that has not been considered by the AOJ, and a waiver of AOJ review of this evidence has not been provided. Moreover, in January 2016, the representative asserts multiple claims for secondary service connection and service connection based on aggravation related to his left knee disability that are being referred to the AOJ in the Introduction of this Decision. The Board notes that the claim for entitlement to TDIU is inextricably intertwined with these claims of entitlement to service connection for right knee disorder, back disorder, heart disease, interstitial lung disease, left leg post-phlebitic problems and prostate cancer. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, adjudication of the TDIU must be deferred until the required evidentiary development discussed above is completed. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ensure that all VA treatment records relevant to the TDIU claim have been associated with the claim. 2. The AOJ should determine whether referral for extraschedular consideration for TDIU is warranted. 3. Following the adjudication of the claims being referred to the AOJ and noted in the Introduction, the RO should then re-adjudicate the claim for TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, issue an appropriate SSOC and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. 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 A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs