Citation Nr: 1737599 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 07-00 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for erectile dysfunction, including as secondary to diabetes mellitus. 3. Entitlement to a higher initial evaluation for residuals of a fracture with compression deformity of the thoracic spine, evaluated as 0 percent disabling from January 27, 1987, and as 10 percent disabling from August 22, 2005. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran and K.W. ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, and from an August 2009 rating decision of the Appeals Management Center (AMC) in Washington, D.C. The Board denied service connection for diabetes mellitus and erectile dysfunction, and entitlement to TDIU, in an April 2010 decision. This decision was vacated by the United States Court of Appeals for Veterans Claims (Court) with respect to these claims pursuant to an April 2011 joint motion for remand (JMR), and remanded to the Board for further action in accordance with the JMR. The Board remanded these claims in May 2012 for further development, and remanded them again in July 2016 in order to afford the Veteran an opportunity to testify at another hearing before the Board. The Veteran testified at a hearing before the undersigned in February 2017. A transcript is of record. He also testified at a hearing before a different Veterans Law Judge (VLJ) in June 2008 regarding the claims for diabetes, erectile dysfunction, and TDIU. A transcript is of record. The VLJ who presided at that hearing is not currently available to participate in a decision on the Veteran's appeal. The issues of service connection for erectile dysfunction and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran had regular contact with the perimeter of the Nakhon Phanom Royal Thai Air Force Base during active service, and is presumed to have been exposed to an herbicide agent. 2. The Veteran is diagnosed with diabetes mellitus, type II, and there is no affirmative evidence showing that it is not due to herbicide exposure. 3. The Veteran's thoracic spine disability is manifested by a compression deformity with pain on prolonged standing, walking, lifting, and bending, and occasional flare-ups, but not by limitation of motion, ankylosis, intervertebral disc syndrome requiring bedrest and treatment prescribed by a physician, or neurologic abnormality. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are satisfied. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017); Veterans Benefits Administration Manual, M21.IV.ii.1.H.5.b. 2. The criteria for an initial rating of 10 percent for residuals of a fracture with compression deformity of the thoracic spine are satisfied from January 27, 1987, through August 21, 2005, inclusive. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5285, 5291 (1987, 2002). 3. The criteria for an initial rating higher than 10 percent for residuals of a fracture with compression deformity of the thoracic spine as of August 22, 2005, have not been satisfied or more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Diabetes Mellitus Service connection will generally be awarded for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a). Certain diseases associated with exposure to an herbicide agent, including diabetes mellitus, type II, shall be presumed to be service connected even if there is no evidence of the disease in service, provided that such exposure is established in accordance with VA regulation, and the presumption is not rebutted with the evidence to the contrary. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017). The Veteran's service personnel records show that he served at Nakhon Phanom for a period of time from 1970 to 1971, during the Vietnam Era. It is VA policy that when there is credible evidence of service near the base perimeter of one of the listed Royal Thai Air Force Bases (RTAFB's), including Nakhon Phanom (NKP), herbicide exposure will be found. Veterans Benefits Administration (VBA) Manual, M21.IV.ii.1.H.5.b; VA Compensation Services "Memorandum for the Record: Herbicide Use in Thailand During the Vietnam Era" (noting that there was sporadic use of non-tactical (commercial) herbicides within fenced perimeters of RTAB's, and thus if a Veteran's duties regularly took him or her to the base perimeter, there was a greater likelihood of exposure). The Veteran did not have one of the military occupational specialties associated with service at the RTAFB perimeter listed in the VBA Manual. See M21-1, Part IV, Subpt. ii, ch. 2, sec. C, topic 10(q). However, he has provided sufficient evidence of contact with the perimeter through his February 2017 hearing testimony and the circumstances of his service, resolving reasonable doubt in favor of the claim. See 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a). Specifically, he stated that in connection with his duties in the MEDCAP program he was responsible for transporting supplies to the helicopter pad on a weekly basis, which was located on the tarmac near the perimeter. He noted in this regard that NKP is a very small base. Accordingly, the Board finds that the Veteran had contact with the base perimeter, and thus presumes that he was exposed to an herbicide agent. See VBA Manual, M21-1, Part IV, Subpt. ii, ch. 2, sec. C, topic 10(q) VA treatment records shows that the Veteran has been diagnosed with diabetes mellitus, type II. As there is no affirmative evidence to the contrary, his diabetes is presumed to be caused by exposure to an herbicide agent. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Accordingly, service connection for diabetes is granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. II. Increased Rating for Fracture of the Thoracic Spine A. Law VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, VA assesses the level of disability from the effective date of service connection. Fenderson, 12 Vet. App. at 125; 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59 (2017). Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). B. Analysis During the pendency of this claim, the criteria for rating disability of the spine were revised effective September 23, 2002, and again effective September 26, 2003. The current rating criteria may not be applied prior to their effective dates. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the previous criteria, Diagnostic Code (DC) 5285 applied to residuals of fracture of the vertebra. 38 C.F.R. § 4.71a (1987, 2002). The Board's October 2008 decision granted service connection for a compression fracture of the thoracic spine. Accordingly, this diagnostic code applies. Under DC 5285, when a fracture of the vertebra has cord involvement, results in being bedridden, or requires long leg braces, a 100 percent rating is assigned. Id. When the fracture is without cord involvement, and there is abnormal mobility requiring a neck brace (jury mast), a 60 percent rating is assigned. In other cases, the fracture residuals are rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Id. Under the prior version of the rating criteria, DC 5291 pertains to limited motion of the dorsal (i.e. thoracic) spine. 38 C.F.R. § 4.71a (1987, 2002). Under DC 5291, a 10 percent rating is assigned for severe or moderate limitation. A 0 percent rating is assigned when the limitation of motion is slight. Id. Under the current rating schedule, normal range of motion of the thoracolumbar spine is defined as forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 30 degrees, and left and right lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71a DCs 5235-5243, Note (2); see also 38 C.F.R. § 4.71a, Plate V. The older version of the rating schedule did not define normal range of motion of the thoracolumbar spine. However, in adopting specific range-of-motion measurements to define what is normal, as reflected in Plate V in the current version of the rating schedule, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed. (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, although the earlier version of the schedule did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984. Accordingly, the Board finds that the normal range of motion of the spine defined under the current rating schedule may be used as a guideline in evaluating the Veteran's thoracic spine disability under the prior version of the rating criteria. The preponderance of the evidence shows that prior to August 22, 2005, the Veteran did not have limitation of motion of the thoracic spine. A February 1987 VA examination report reflects that forward flexion of the back was to 90 degrees, extension to 30 degrees, and lateral flexion and rotation were to 30 degrees bilaterally. Thus, range of motion of the thoracolumbar spine was normal at this time. There are no other range-of-motion findings prior to the October 2005 VA examination report. The evidence does not show additional functional loss on repeated use or during flare-ups warranting a compensable rating based on limitation of motion prior to August 22, 2005. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 20. The February 1987 VA examination report reflects that the Veteran had periodic low back pain with prolonged standing, and occasionally with bending and lifting. Very occasionally he had pain radiating into his legs. At a February 1987 hearing before a Decision Review Officer (DRO), the Veteran testified that he experienced back aches. He continued to work as a truck driver, but stated that his back had "gone out" on him a couple of times. In those instances, he had to limp to where he was going. However, he once had to put ice on his back and lay down for eight hours before he was able to walk again. He stated that driving did not cause symptoms, but he was unable to stand for any length of time. He could lift 200 pounds, but could not lift anything over his head, or lift for any length of time. VA and private treatment records dated in 2002 and 2003 show complaints of mid to upper back pain following a work-related shoulder injury. A June 2003 private treatment record notes that the Veteran was able to be active, such as laying some bricks and riding his motorcycle, in spite of his upper back pain. However, he still had some discomfort in the mid back and shoulder regions. The evidence reviewed above shows that while the Veteran has had some back pain with more intensive use or with prolonged standing, he has not had limitation of motion of the thoracic spine. The occasional flare-ups he reported, which did not last longer than a day when they occurred, are not shown to have been frequent enough or to have lasted long enough to warrant a higher or staged rating. Cf. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (observing that VA examinations are not warranted for short-lived flare-ups, as opposed to cases where a person experiences a worsened condition for weeks or months which impairs earning capacity). Accordingly, as the Veteran's thoracic spine disability was not manifested by limitation of motion of the dorsal spine prior to August 22, 2005, the criteria for a compensable rating under DC 5291 were not more nearly approximated. See 38 C.F.R. § 4.71a (1987, 2002). Because the evidence does not show definite limited motion or muscle spasm for this period, the Veteran's compression deformity may not be assigned an additional 10 percent rating under DC 5285. See id. Although limitation of motion of the thoracic spine is not shown prior to August 22, 2005, the Veteran's credible testimony shows that he had back pain with bending, lifting, and prolonged standing. Under 38 C.F.R. § 4.59, actually painful joints due to healed injury are entitled to at least the minimum compensable rating for the joint. The Veteran's history of a compression fracture of the thoracic spine, with X-ray findings of a compression fracture, and the treatment records and hearing testimony showing back pain with occasional exacerbations, warrants a 10 percent rating under DC 5291 pursuant to section 4.59 of the regulations. See Sowers v. McDonald, 27 Vet. App. 472 (2016) (holding that section 4.59 cannot provide an independent basis for a compensable rating, but rather instructs that the minimum compensable rating be assigned under the diagnostic code applicable to the affected joint). Because a compensable rating under DC 5291 is only assigned via section 4.59, an additional 10 percent rating under DC 5285 for deformity of the vertebra is not warranted, as the evidence does not show definite limited motion or muscle spasm. See 38 C.F.R. § 4.71a (1987, 2002). A separate compensable rating for arthritis of the thoracic spine is not warranted prior to August 22, 2005. Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. In this case, there are no X-ray findings of arthritis prior to August 22, 2005. A December 2002 bone scan was interpreted as showing degenerative disk and joint disease of the cervical spine and right shoulder. However, there is no mention of the thoracic spine in this report. Moreover, the bone scan does not constitute an X-ray finding. See id. Finally, even assuming the Veteran had arthritis of the thoracic spine at this time, a separate 10 percent rating may not be assigned without contravening the provisions of DC 5003 and the rule against pyramiding, as a compensable rating for painful motion has already been assigned under DC 5291 pursuant to section 4.59. See 38 C.F.R. § 4.14. No other diagnostic codes under the previous rating criteria apply. The evidence does not show intervertebral disc syndrome prior to September 23, 2002. Therefore, old DC 5293 does not apply. See id. The Veteran has not had ankylosis of the thoracic spine. Therefore, old DC's 5286 and 5288 do not apply. Se id. Finally, as service connection has only been established for disability of the thoracic spine, the remaining diagnostic codes under the old rating criteria do not apply, as they pertain to the cervical, lumbar, lumbosacral, and sacro-iliac sections of the spine. See id. The current rating schedule provides for the evaluation of all disabilities of the spine under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula, evaluations are assigned as follows: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where unfavorable ankylosis of the entire spine is demonstrated. See id. The above criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine. Id. Unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Id., Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The preponderance of the evidence shows that the criteria for a rating higher than 10 percent have are not satisfied under the current rating criteria at any point since their September 2002 effective date. The evidence from September 2002 forward, including the October 2005 and September 2013 VA examination reports, does not show limitation of motion of the thoracolumbar spine that satisfies the criteria for a compensable rating under the General Rating Formula. See 38 C.F.R. § 4.71a. Both examination reports show full range of motion. The September 2013 VA examination report shows that range of motion remained the same on repeat testing. The Veteran's painful and limited motion of the thoracic spine is already contemplated by the 10 percent rating currently assigned. The examination reports also show that the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The guarding and pain noted in the October 2005 VA examination report is already contemplated by the 10 percent rating assigned under the General Rating Formula. See 38 C.F.R. § 4.71a. With regard to flare-ups, the October 2005 VA examination report reflects that the Veteran reported flare-ups that were mainly caused by standing. During such flare-ups, the pain would intensify to a 7 or 8 out of 10 in severity, and the Veteran would lose function especially with respect to flexion of the spine. At those times, it was difficult to stand and walk, and he would have to sit wherever he was at, including on the floor if no seat was available. The September 2013 VA examination report states that the Veteran had flare-ups that occurred off and on, and indicates that the Veteran found treatment by a chiropractor to be beneficial in this regard. The evidence does not show that these flare-ups occurred frequently enough or lasted long enough to warrant a higher or staged rating. Cf. Voerth, 13 Vet. App. at 122-23. The fact that there are exacerbations of the Veteran's symptoms is a component of the 10 percent rating currently assigned, and does not in and of itself warrant a higher rating. Cf. 38 C.F.R. § 4.1 (2017) (providing that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability). The Board notes that the VA examination reports do not show both passive and active range-of-motion testing, and with weight-bearing and non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. As the Veteran has not stated that his thoracic spine disability is manifested by limitation of motion other than during flare-ups (which are addressed above), and as the VA examinations showed full range of motion, there is no indication that current findings regarding passive range of motion or with weight-bearing or non-weightbearing would support entitlement to a rating higher than 10 percent based on range of motion. Thus, such testing is not warranted to evaluate the Veteran's thoracic spine disability. The evidence shows that the Veteran does not have ankylosis of the thoracolumbar spine. Accordingly, a higher rating may not be assigned on this basis under the current rating criteria. The evidence does not show intervertebral disc syndrome with incapacitating episodes requiring treatment and bedrest prescribed by a physician. Accordingly, the criteria under Formula for Rating IVDS do not apply. See 38 C.F.R. § 4.71a. Finally, there is no evidence of associated neurologic abnormality. In the September 2013 VA examination report, the examiner indicated that the Veteran did not have associated neurologic abnormality. Accordingly, consideration of a separate rating for neurological manifestations is not warranted. A separate rating for arthritis may not be assigned, as this would violate the rule against pyramiding and the provisions of DC 5003 since the Veteran's painful motion has already been assigned a 10 percent rating. See 38 C.F.R. §§ 4.14, 4.71a. At the February 2017 hearing, the Veteran stated that he had a dislocated rib associated with his thoracic spine disability. Service connection has not been claimed or established for a dislocated rib. The examination reports and treatment records do not show that the Veteran has a dislocated rib associated with his thoracic spine disability. Accordingly, further consideration of this issue is not warranted. Because the preponderance of the evidence weighs against a rating higher than 10 percent at any point during the pendency of this claim, staged ratings are not warranted, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for diabetes mellitus, type II is granted. An initial rating of 10 percent for residuals of a fracture with compression deformity of the thoracic spine is granted from January 27, 1987 through August 21, 2005, inclusive, subject to the laws and regulations governing payment of monetary benefits. An initial rating higher than10 percent for residuals of a fracture with compression deformity of the thoracic spine as of August 22, 2005 is denied. REMAND In light of the grant of service connection for diabetes, the AOJ must readjudicate the issue of service connection for erectile dysfunction as a complication of diabetes. See 38 C.F.R. § 3.310 (2017) (providing for service connection on a secondary basis). A VA examination evaluating the Veteran's diabetes and identifying its complications must be obtained for this purpose, as such an examination has not yet been conducted. The AOJ must also readjudicate entitlement to TDIU in light of the grant of service connection for diabetes. Accordingly, the case is REMANDED for the following action: 1. Add any recent outstanding VA treatment records to the claims file. 2. Arrange for a VA diabetes examination to evaluate the severity of the Veteran's diabetes. In the report, the examiner must discuss its impact on occupational functioning. The examiner must also provide an opinion as to whether the Veteran's erectile dysfunction is a complication of diabetes. 3. Then, after completing any other development that may be indicated, readjudicate the issues of entitlement to service connection for erectile dysfunction, and TDIU. If the benefits sought are not granted, the Veteran must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). These claims 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs