Citation Nr: 1629103 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 14-24 811A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether the reduction in rating for traumatic brain injury (TBI) with residual headaches from 70 percent to 10 percent, effective January 20, 2011, was proper. 2. Entitlement to a rating in excess of 40 percent for TBI with residual headaches. ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1976 to February 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO) which reduced the rating for the Veteran's TBI with residual headaches from 70 to 10 percent, effective January 20, 2011. The Veteran appealed the reduction. [The Veteran had been represented by an attorney, but in August 2014 revoked the power of attorney for the attorney in this matter.] There are numerous other issues on appeal, pertaining to higher ratings for various service-connected disabilities; the Board has addressed those other issues in a separate decision. The issue of entitlement to a rating in excess of 40 percent for TBI with headaches is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action is required. FINDINGS OF FACT 1. Prior to an October 2012 rating decision, the Veteran's combined disability rating for numerous service-connected disabilities, including residuals of a TBI, was 90 percent, effective November 23, 2009. 2. In an October 2012 rating decision, the RO retroactively reduced the rating for the Veteran's TBI with residual headaches from 70 percent (which had been in effect for less than five years) to 10 percent, effective January 20, 2011, and also granted an increased (from 30 to 70 percent) rating for the Veteran's posttraumatic stress disorder (PTSD), effective October 19, 2010. 3. The Veteran's combined disability rating was 100 percent from October 19, 2010 and 90 percent from January 20, 2011, and there was no reduction in the Veteran's compensation payments as a result of the rating reduction effective January 20, 2011. 4. The reduction in rating for the Veteran's TBI with headache residuals was based on a January 20, 2011 VA examination, which shows improvement in the disability in all facets of cognitive impairment except for communication, warranting a TBI level of "2" impairment on the table of facets for impairment in comprehending spoken and written language more than occasionally but less than half of the time. CONCLUSION OF LAW Although the reduction in the rating for TBI with residual headaches from 70 to 10 percent effective January 20, 2011, was compliant with legal criteria governing such actions, the extent of the reduction was not proper; from January 20, 2011 a 40 percent rating for TBI with residual headaches is warranted. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.344(c), 4.124a, Diagnostic Code 8045 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, describe VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. This appeal flows from actions by the AOJ pursuant to the Veteran's claim for rating increases. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided content-complying, pre-adjudication VCAA notice by letter, dated in December 2010, wherein the Veteran was informed of the type of evidence needed to substantiate the claim for a higher rating, and was also notified what records VA would obtain and what records he could submit or authorize VA to obtain on his behalf. He was also advised how VA assigns disability ratings and effective dates of awards. Regarding the reduction issue on appeal, the regulatory provisions pertaining to rating reductions contain notification and due process requirements that fall outside the ambit of the VCAA. See 38 C.F.R. § 3.105. Those particular requirements are discussed in the analysis below. Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b), and (c). The Veteran was given an opportunity to testify at a personal hearing, but he declined a hearing. The RO has obtained the Veteran's relevant VA treatment records. He has not identified any other records pertinent to the issue on appeal. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran underwent a VA compensation examination in January 2011, to address the nature and severity of the service-connected TBI residuals. As the examination report contains the Veteran's medical history and pertinent clinical findings sufficient to evaluate the disability under governing rating criteria, the Board finds that the report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran is required to comply with the duty to assist. Factual Background, Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate; the analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A May 2010 rating decision granted service connection for residuals of a TBI, rated 70 percent, effective from November 23, 2009. At that time, service connection was also in effect for posttraumatic stress disorder (PTSD) with depression, rated as 30 percent. His combined rating for the Veteran's numerous service-connected disabilities was 90 percent effective from November 23, 2009. In a statement received on October 19, 2010, the Veteran asserted that the symptoms of his TBI and PTSD had become much worse in the past six to 12 months and that his quality of life had suffered. He claimed that his ratings should be higher. On January 20, 2011, he underwent VA examinations to assess the current severity of his TBI residuals and PTSD. An October 2012 rating decision, based in large part on the results of the VA examinations reduced the rating for the Veteran's TBI with residual headaches (as it was now characterized) from 70 to 10 percent, , effective January 20, 2011, and also granted an increased (to 70 percent) rating for PTSD, effective October 19, 2010 (the date of receipt of the Veteran's claim). Regarding the reduction, the RO stated that the VA examination showed improvement in the Veteran's disability and that his overall rating was not affected by its action. As a result of the October 2012 rating decision the combined rating for the Veteran's service-connected disabilities was 100 percent from October 19, 2010 and 90 percent from January 20, 2011. (A total disability rating based on individual unemployability was not in effect.) Initially, based on the foregoing, the Board finds that the due process requirements for rating reductions, as provided in 38 C.F.R. § 3.105(e), do not apply. The regulation states: Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level... if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Here, while the RO did not notify the Veteran of a proposal to reduce the rating for TBI with residual headaches, or give him a period of time for response, before implementing the reduction retroactively, the Board finds that the RO was not required to comply with the due process requirements of 38 C.F.R. § 3.105(e). That is, a proposal and waiting period before implementation of a rating reduction prospectively is only required where the reduction in rating results in a reduction in compensation payments currently being made. Here, although the October 2012 rating decision increased the combined rating for the service-connected disabilities to 100 percent effective October 19, 2010 (by increasing the PTSD rating to 70 percent effective that date), and reduced the combined rating to 90 percent effective January 20, 2011 (by reducing the evaluation for TBI with residual headaches), the RO accomplished this in a single rating decision. In other words, the reduction in this case did not actually result in a reduction of compensation payments currently being made, as the Veteran continued to receive the same 90 percent combined rating he relied on before the reduction as he does after. The provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. See also VAOPGCPREC 71-91 (November 7, 1991). Rather, they only apply where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Here, the Veteran's monthly monetary compensation from VA never actually decreased from the effective date of the reduction on January 20, 2011. Case law derived from the U.S. Court of Appeals for Veterans Claims (Court) and U.S. Court of Appeals for the Federal Circuit (Federal Circuit) likewise provides that where ratings are changed in a single decision that does not result in actual decrease in the compensation the Veteran receives each month, there is no reduction. In O'Connell v. Nicholson, 21 Vet. App. 89 (2007), the Court examined a claim in which the Board, in assigning staged ratings for a disability, simultaneously increased the base rating assigned by the RO for a period of time, and then decreased it. The Court explained that there was no diminished expectation with which to be concerned, and no reduction in benefits to contest. Id. at 93. The Federal Circuit agreed with this reasoning in Reizenstein v. Shinseki, 583 F.3d 1331, 1337-38 (Fed. Cir. 2009), noting that benefits for past periods of disability are distributed in a lump sum that is paid on top of the Veteran's ongoing disability compensation (as would be the case here, where the Veteran was found retroactively entitled to a combined 100 percent rating until the effective date of the reduction.) In Hamer v. Shinseki, 24 Vet. App. 58 (2010), the Court further explained that the purpose behind 38 C.F.R. § 3.105(e) is to enable veterans to adjust to the diminished expectation. Id. at 61-62. Given that the October 2012 rating decision simultaneously assigned a retroactive combined 100 percent evaluation (effective October 19, 2010) and a reduction of the combined evaluation to 90 percent (effective January 20, 2011), and as the Veteran's combined disability rating has at no relevant point been reduced below 90 percent, the Board finds that the provisions of 38 C.F.R. § 3.105(e) do not apply. The Board turns to whether the evidential requirements for reducing the evaluation were met. The Board notes that the provisions of 38 C.F.R. § 3.344(a) and (b), regarding stabilization of disability ratings, are not for application because the Veteran's 70 percent rating for his TBI residuals had not been in effect for a period of five years or more. The 70 percent rating was in effect from November 23, 2009 until the effective date of the reduction on January 20, 2011. See 38 C.F.R. § 3.344(c); Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction). However, a single VA examination disclosing improvement, physical or mental, in the Veteran's TBI disability (versus the more stringent evidentiary standard of sustained material improvement in the disability that would be maintained under the ordinary conditions of life, as required in 38 C.F.R. § 3.344(a) and (b)) will warrant a reduction in rating. 38 C.F.R. § 3.344(c). In reviewing the records pertaining to the rating reduction, particularly the VA examination of January 20, 2011 upon which the reduction was in large part based, the Board finds that improvement in the Veteran's TBI residuals is shown, but not to the extent determined by the RO when it assigned a 10 percent rating from January 20, 2011. Rather, it is the Board's judgment that a 40 percent rating from that effective date is the proper evaluation, under 38 C.F.R. § 4.124a, Code 8045, based on application of the medical evidence on file, as will be explained. In a May 2010 rating decision, the RO granted service connection for residuals of a TBI, assigning a 70 percent rating under 38 C.F.R. § 4.124a, Code 8045. This rating was based on a VA examination in March 2010. In relation to his claim for a higher rating for TBI residuals (and PTSD) filed in October 2010, the Veteran underwent a VA examination on January 20, 2011. A December 2012 rating decision reduced the rating under Code 8045 from 70 to 10 percent, based on findings of the January 2011 VA examination. Under Code 8045, which provides disability rating for residuals of TBI, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Adjudicators are to rate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to rate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, they are to separately rate any residual with a distinct diagnosis that may be rated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. Adjudicators are to rate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, they are to evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Adjudicators are to rate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, adjudicators are to rate under the most appropriate diagnostic code. Adjudicators are to rate each condition separately, as long as the same signs and symptoms are not used to support more than one rating, and combine under § 4.25 the ratings for each separately rated condition. The rating assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the rating for a single condition for purposes of combining with other disability ratings. Id. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms, namely, (1) Memory, Attention, Concentration, Executive Functions; (2) Judgment; (3) Social Interaction; (4) Orientation; (5) Motor Activity (with intact motor and sensory system); (6) Visual Spatial Orientation; (7) Subjective Symptoms; (8) Neurobehavioral Effects; (9) Communication; and (10) Consciousness. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," as any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100 percent rating if "total" is the level of evaluation for one or more facets. If no facet is rated as "total," adjudicators are to assign the overall percentage rating based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent rating is assigned if 3 is the highest level of evaluation for any facet. Id. The rating assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one rating is assigned for all the applicable facets. A higher rating is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are rated separately. Id. On the March 2010 VA TBI examination (upon which the Veteran's initial 70 percent rating was based), the examiner addressed each of the 10 facets in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table (listed above). The examiner opined that the Veteran's TBI injury was of moderate severity, with moderate impairment of memory, attention, concentration, or executive functions [a level of severity of "3" is assigned for this facet]; moderately impaired judgment [a level of severity of "2" is assigned for this facet]; social interaction that was routinely appropriate [a level of severity of "0" is assigned for this facet]; occasional disorientation to time [a level of severity of "1" is assigned for this facet]; motor activity that was normal most of the time but mildly slowed at times due to apraxia [a level of severity of "1" is assigned for this facet]; moderately severe impairment of visual spatial orientation [a level of severity of "3" is assigned for this facet]; three or more subjective symptoms that moderately interfere with family and work [a level of severity of "2" is assigned for this facet]; one or more neurobehavioral effects that frequently interfere with workplace interaction or social interaction or both but do not preclude them [a level of severity of "2" is assigned for this facet]; ability to communicate by spoken and written language and to comprehend spoken and written language [a level of severity of "0" is assigned for this facet]; and a normal state of consciousness. Given the foregoing findings that show the highest level of severity for any facet is "3," the RO initially assigned the Veteran a 70 percent rating for TBI residuals. In his October 2010 claim for a higher rating for both TBI residuals and PTSD, the Veteran described many symptoms that are contemplated by the criteria for evaluating PTSD, such as reduced reliability and productivity due to various weekly symptoms as panic attacks, memory impairment, impaired judgment, and disturbance in motivation and mood. In a December 2010 statement, his wife described his increase in occupational and social impairment, including problems with judgment, thinking, and mood swings. She also noted his slurring while he talked and frequent loss of his train of thought during conversation. She stated that he suffered from hallucinations and debilitating depression. On the January 20, 2011 VA TBI examination (upon which the subsequent rating reduction was based), the examiner addressed the symptoms of the Veteran's PTSD, as well as each of the 10 facets in the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table, some of which overlap. Regarding the Veteran's TBI injury, the examiner stated that there was mild complaints of impairment of memory, attention, concentration, or executive functions without objective evidence on testing [a level of severity of "1" is assigned for this facet]; normal judgment [a level of severity of "0" is assigned for this facet]; social interaction that was occasionally inappropriate [a level of severity of "1" is assigned for this facet]; always oriented to person, place, time, and situation [a level of severity of "0" is assigned for this facet]; motor activity that was normal [a level of severity of "0" is assigned for this facet]; normal visual spatial orientation [a level of severity of "0" is assigned for this facet]; three or more subjective symptoms that mildly interfere with instrumental activities of daily living, family, work, and close relationships [a level of severity of "1" is assigned for this facet]; one or more neurobehavioral effects that occasionally interfere with workplace interaction or social interaction or both but do not preclude them [a level of severity of "1" is assigned for this facet]; impairment in comprehending spoken language and comprehending written language, which occurs more than occasionally but less than half of the time, with an ability to generally communicate complex ideas but with struggles to communicate through spoken and written language [a level of severity of "2" is assigned for this facet]; and a normal state of consciousness. Based on the statements of the Veteran and his wife, and the findings on VA medical reports, the RO increased the Veteran's PTSD rating to 70 percent, effective in October 2010, but also reduced his TBI residuals rating to 10 percent, effective January 20, 2011, based on reexamination disclosing improvement in his disability. While the Board agrees that the January 2011 examination showed improvement in many facets of the rating criteria (and that some symptoms were manifestations of PTSD and therefore not to be evaluated under both PTSD and TBI residuals), the Board also finds that the TBI rating reduction to 10 percent was not proper, and that the rating should instead have been reduced to 40 percent. As noted by the RO, some of the clinical findings are assignable to the evaluation for PTSD, such as social interaction and neurobehavioral effects. However, the findings regarding communication are not shown by the VA PTSD examination to be a manifestation of PTSD but rather of the TBI. While the RO felt that the level of severity of this facet was "1," the Board finds that the description of this facet of TBI was reflective of a level of severity of "2," and thus a 40 percent rating is warranted. A higher level of severity of "3" (for restoration of the 70 percent disability rating) is not warranted unless an examiner finds evidence of an inability to communicate either by spoken language, written language, or both at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time; may rely on gestures or other alternative modes of communication; able to communicate basic needs. This level of severity was not described by the VA examiner. Moreover, restoration of the 70 percent rating is not warranted unless a higher level of severity is shown for at least one of the following other TBI rating facets: moderate impairment on objective testing of memory, attention, concentration, or executive functions resulting in moderate functional impairment; moderately severe impaired judgment; inappropriate social interaction most or all of the time; often disoriented to two or more of the four aspects of orientation (person, time, place, situation); moderately decreased motor activity due to apraxia; moderately severe impairment of visual spatial orientation; or one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Any finding cannot also be a manifestation of, and evaluated under, the Veteran's PTSD (rated 70 percent disabling). As described by the VA examiner in January 2011, a higher level of severity was not shown. In summary, while reduction of the rating for TBI residuals from 70 percent was warranted based on improvement shown upon reexamination in January 2011, the more appropriate rating upon reduction, effective January 20, 201, is 40 percent. The decision above addresses only the rating reduction aspect of the October 2012 rating decision that was appealed by the Veteran. The issue regarding a higher current rating for TBI with residual headaches is addressed in the remand portion below. ORDER The reduction in rating, from 70 percent to 10 percent, for TBI with residual headaches, effective January 20, 2011, was not proper with respect to the extent to which the rating was reduced; from the January 20, 2011 date of the reduction partial (to 40 percent) restoration of the rating is granted. REMAND As the appeal flows from the Veteran's claim for an increased rating, which was filed in October 2010, there remains for appellate review the issue seeking a current rating in excess of 40 percent for TBI with residual headaches (as that claim encompasses the period to the present). In the October 2010 claim, the Veteran asserted that his TBI residuals have increased in severity. The most recent VA examination to assess the severity of his TBI with residual headaches was on January 20, 2011, and numerous medical records, some pertinent to this disability, have been added to the claims file since that examination. For example, additional VA medical records include inpatient records showing that the Veteran was admitted to the hospital for three days from January 2011 to February 2011 for treatment of a migraine headache (he was discharged with a referral to neurology for long-term management and control of headaches). A December 2012 rating decision re-characterized the Veteran's TBI disability as "TBI with residual headaches," but did not appear to consider whether a separate rating for such headaches under 38 C.F.R. § 4.124a, Code 8100 was warranted (as 38 C.F.R. § 4.124a, Code 8045, affords for any TBI residuals with a distinct diagnosis such as migraine headache). Therefore, a contemporaneous examination to assess the severity of the TBI residuals (separate from his PTSD) is necessary. Accordingly, the case is REMANDED for the following: 1. The AOJ should ask the Veteran to identify all providers of evaluations and/or treatment he has received for TBI residuals since January 20, 2011, and to submit authorizations for VA to secure records of any such private treatment. The AOJ should secure for the record complete VA clinical records and any other records of evaluations and treatment from all providers identified by the Veteran (i.e., any pertinent records that are not already in the record). 2. Thereafter, the AOJ should arrange for the Veteran to be examined by a neurologist to assess the current severity of his TBI residuals including headaches, as separate from his PTSD symptoms, to the extent feasible. The entire record must be reviewed by the examiner in conjunction with the examination. All findings should be described in detail. The examiner should comment on any restrictions on occupational and daily activity functions due to the TBI residuals. The examiner should include rationale with all opinions. 3. The AOJ should then review the record and readjudicate the claim for a rating in excess of 40 percent for TBI with residual headaches. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran 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 that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs