Citation Nr: 1800317 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 17-07 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to an increased rating for right ankle degenerative arthritis status post right ankle avulsion fracture, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for lumbosacral strain, evaluated as 20 percent disabling, to include the propriety of reduction of the evaluation from 20 to 10 percent effective April 1, 2017. 4. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU) REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The Veteran had active service in the United States Marine Corps from September 1993 to September 1997, and in the United States Army from September 1998 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma. Jurisdiction over the Veteran's record currently resides with the RO in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge (VLJ) by videoconference in July 2017. A transcript of the hearing is of record. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U. S. Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During his July 2017 hearing, the Veteran testified to his belief that his service-connected right ankle and lumbar spine disabilities rendered him unemployable, raising the issue of entitlement to a TDIU. In light of the Court's holding in Rice, the Board considers the TDIU claim as part of the pending increased rating claims and has accordingly listed the raised TDIU claim as an issue on the title page of this decision. The Board notes that since the issuance of a January 2017 statement of the case (SOC), additional VA treatment records have been added to the Veteran's claims file. However, these records are either cumulative or not relevant to the issue of entitlement to service connection for a cervical spine disability. Thus, the Board has concluded that it may proceed with appellate consideration of this issue without prejudice to the Veteran. See 38 C.F.R. § 19.31 (2017). The Board observes that the Veteran submitted his claim for increased ratings in December 2013, and that an October 2014 rating decision proposed to reduce the evaluation of this disability from 20 to 10 percent based on demonstrated improvement. The Veteran submitted a notice of disagreement with this rating decision, and in January 2017, an SOC characterized the issue as entitlement to an evaluation in excess of 20 percent for this disability. However, the AOJ subsequently issued a rating decision which reduced the evaluation from 20 to 10 percent, effective April 1, 2017. In light of this procedural history, the Board has characterized the issue pertaining to the evaluation of lumbosacral strain to include the rating reduction. The issue of entitlement to service connection for scars of the right ankle has been raised by the record in a February 7, 2017 submission, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to higher evaluations for the right ankle and lumbar spine disabilities, as well as the issue of entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A cervical spine disability was not manifest in service and degenerative arthritis of the cervical spine was not manifest within one year of separation from service; a cervical spine disability is unrelated to service. 2. The record contains no indication that the appellant's service-connected lumbosacral strain exhibited improvement as of April 1, 2017, and the reduction in the disability rating for lumbosacral strain from 20 to 10 percent as of that date was therefore improper. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1111, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Restoration of the 20 percent disability rating for lumbosacral strain is warranted. 38 U.S.C. §§ 1155, 5110, 5112, 5107 (West 2012); 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.71a, Diagnostic Code 5237 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran was notified of the evidence necessary to support his claims in correspondence dated in December 2011. This correspondence notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims, identified the Veteran's duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, service and VA treatment records have been associated with the electronic claims file. A VA examination has been conducted, and the Board finds that it is adequate for the purpose of deciding the claim of entitlement to service connection for a cervical spine disability, as it was performed by a skilled provider who reviewed the Veteran's history and explained the rationale underlying his findings and conclusions. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate his claims. The Board is also unaware of any such outstanding evidence or information. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence of arthritis may be presumed if manifested to a compensable degree within a year of the Veteran's separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, has clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records reflect that the Veteran sustained cervical strain as the result of a motor vehicle accident in September 1995. He was seen in follow up in October and November 1995, and the condition was noted to be improving. On separation physical examination in September 1997, the Veteran denied recurrent back pain; arthritis, rheumatism, and bursitis; bone, joint, or other deformity; and lameness. Clinical examination revealed a normal spine. The Veteran was deemed qualified for separation. On Army enlistment examination in September 1998, the Veteran's spine was normal. At that time, he denied recurrent back pain; arthritis, rheumatism, and bursitis; bone, joint, or other deformity; and lameness. He indicated that his present health was good. He was deemed qualified for enlistment. On separation examination in August 2001, clinical evaluation the Veteran's spine was determined to be normal. The Veteran denied recurrent back pain or any back problem, swollen or painful joints, and deformity. VA treatment records reflect an initial treatment encounter in September 2009, during which the Veteran reported a history of right ankle and low back disabilities. Review of systems revealed no complaints referable to his neck. May 2011 and June 2012 records also reflect no neck complaints on review of systems. A December 2013 record indicates that cervical spine X-rays revealed mild arthritis. On VA examination in October 2014, the diagnosis was degenerative joint disease of the cervical spine. The Veteran related that he sustained cervical strain in a motor vehicle accident while in the Marine Corps. He stated that he wore a cervical collar and attended treatment, including physical therapy. He indicated that physical therapy improved his symptoms. He stated that he had noted increased neck pain during the previous year. The examiner noted that the Veteran was seen in September 1995 for cervical strain. Following physical examination, the examiner concluded that cervical spine degenerative joint disease was less likely than not caused by or a result of cervical strain due to a motor vehicle accident during service. The examiner indicated that the medical records failed to document chronicity of the claimed during service or after discharge. She opined that the cervical strain condition resolved before discharge. She further noted that the currently available medical literature failed to support a causative etiology between cervical strain and the development of degenerative joint disease. She indicated that degenerative joint disease or osteoarthritis was the most common form of arthritis, and occurred as the result of natural and normal wear and tear due to aging. She specifically noted that enlistment examination in 1998 and separation examination in 2001 were silent for any cervical spine condition, and that the Veteran's initial contact with a VA provider in 2009 was also silent for a cervical spine condition. She indicated that neck pain was first noted in 2013, at which time X-rays were ordered. During his July 2017 hearing, the Veteran testified that he sustained a neck injury as the result of a motor vehicle accident during service. He indicated that he sought treatment, and underwent physical therapy. He stated that following service, he began treatment for his neck in 2009 or 2010, but that he used over the counter medication prior to that. Having carefully reviewed the record, the Board concludes that service connection is not warranted for a cervical spine disability. The weight of the evidence does not demonstrate credible evidence of pathology in proximity to service or within years of separation. In fact, the first post-service complaint of neck problems found in the current record dates to 2013. Prior to that, VA treatment records indicate the Veteran's denial of complaints referable to his neck; therefore, presumptive service connection for arthritis of the cervical spine is not warranted. Likewise, continuity of symptomatology is not established for this claimed disability. In this regard, the Board observes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has recently testified that he experienced symptoms related to his cervical spine during and since service. However, the service treatment records indicate that although the Veteran was treated for cervical strain in 1995, his spine was normal on separation examination in 1997, and he denied relevant symptoms at that time. Moreover, he denied relevant symptoms on subsequent enlistment examination in 1998, and on separation in 2001. The records regarding the Veteran's second period of service in the Army are silent with respect to any diagnosis, complaint, or abnormal finding pertaining to his cervical spine. Of particular note to the Board is the fact that on an August 2001 report of medical assessment, the Veteran identified knee, ankle and wrist injuries, but did not mention any injury or impairment of his neck. The Board also observes that VA treatment records for the period from 2009 to 2012 also contain the Veteran's specific denial of problems with his neck. Thus, unlike Buchanan, this is not a case in which the record is merely silent. Rather, the record reflects that the Veteran specifically denied experiencing relevant symptoms. For this reason, the Board finds this contemporaneous denial during examination to be far more credible than the Veteran's statements offered in support of the current claim. The Board also notes that the October 2014 VA examiner concluded that the claimed cervical spine arthritis was unrelated to service, to include cervical strain therein. This examiner provided a reasoned opinion based on a complete review of the Veteran's history, interview and examination. In assigning high probative value to the VA examiner's opinion, the Board notes that she had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past history or that she misstated any relevant fact. The Board thus finds the VA examiner's opinion to be of greater probative value than the Veteran's unsupported statements. To the extent that the Veteran asserts that he has a cervical spine disability that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnoses because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record demonstrates complaints referable to the Veteran's cervical spine and a diagnosis of degenerative joint disease, it does not contain reliable evidence which relates this claimed disability to any incident of service. For these reasons, the Board concludes that the claims of entitlement to service connection for headaches must be denied as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evaluation of Lumbosacral Strain - Restoration of 20 Percent Evaluation VA's Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.10 (2017). In VA's Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a Veteran's disability claim may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. For disability ratings in effect for less than five years, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating. 38 C.F.R. § 3.344(c) (2017). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Prior to reducing a Veteran's disability rating, VA is required to "comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect." Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran's disability." Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath, 1 Vet. App. at 594 ("[t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"); see also 38 C.F.R. § 3.344(c). Service connection for lumbosacral strain was granted in an April 2012 rating decision, and a 20 percent evaluation was assigned. The evaluation of this disability was based on a February 2012 VA examination. The report of this examination reflects that the Veteran had flexion to 60 degrees with pain at 20 degrees, extension to 10 degrees with pain at 5 degrees, right lateral flexion to 30 degrees with pain at 20 degrees, left lateral flexion to 10 degrees with pain at 5 degrees, and lateral rotation to 30 degrees bilaterally with no objective evidence of painful motion. Following repetitive motion testing, flexion was to 35 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 30 degrees bilaterally. The examiner noted that there was no guarding or muscle spasm of the thoracolumbar spine. On VA examination in June 2014, range of motion testing revealed flexion to 65 degrees with pain at 65 degrees, extension to 15 degrees with pain at 15 degrees, lateral flexion to 15 degrees with pain at 15 degrees bilaterally, and rotation to 20 degrees bilaterally with pain at 20 degrees bilaterally. The examiner indicated that the Veteran had muscle spasm that resulted in abnormal gait or abnormal spinal contour. On the basis of the June 2014 VA examination, the AOJ issued a rating decision in October 2014 proposing to reduce the evaluation of lumbosacral strain from 20 to 10 percent. The general rating formula for disease and injuries of the spine, specifically, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides as follows a 10 percent evaluation 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; and a 20 percent rating 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. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Having carefully reviewed the record, as reflected by recitation of the evidence above, the Board finds that restoration of the 20 percent evaluation is in order. In this regard, the June 2014 VA examiner indicated that the Veteran had muscle spasm that resulted in abnormal gait or abnormal spinal contour. This is among the criteria for the award of a 20 percent evaluation. Accordingly, the 20 percent evaluation is restored. In sum, while the 2014 VA examination report appears to note improvement in the Veteran's thoracolumbar spine range of motion, physical examination also revealed muscle spasm that resulted in abnormal gait or abnormal spinal contour. Under these circumstances, the Board finds that the AOJ failed to observe the applicable law and regulation in reducing the disability rating assigned for the appellant's service-connected lumbosacral strain from 20 to 10 percent. Under these circumstances, the reduction is void ab initio. Brown, 5 Vet. App. at 422 ; Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). The issue of entitlement to an evaluation in excess of 20 percent for lumbosacral strain is addressed in the remand which follows. ORDER Entitlement to service connection for a cervical spine disability is denied. The 20 percent evaluation for lumbosacral strain is restored, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND The Veteran seeks higher evaluations for his right ankle and lumbar spine disabilities, as well as a TDIU. During his July 2017 hearing, the Veteran asserted that these disabilities have worsened. Regarding the right ankle disability, the Board observes that the Veteran underwent VA examination in June 2014. He attended a subsequent examination in March 2017, but the examiner reported that he was unable to perform range of motion testing because of a recent injury. The Board notes that since the June 2014 examination, the Veteran underwent right revisional lateral ankle stabilization in February 2015. In light of an additional surgery and the Veteran's assertions of worsening, the Board concludes that a current examination is warranted. With respect to the lumbar spine disability, the Board notes that, less than one week following the Veteran's July 2017 hearing, he underwent a VA spine examination. This examination included range of motion testing; however, the examiner did not report the point during motion that the Veteran experienced pain. As the Veteran has testified as to functional limitation due to pain, the Board concludes that this examination is not adequate for the purpose of deciding this claim, and that an additional examination is necessary to address the question of functional limitation due to pain pursuant to 38 C.F.R. § 4.40. Further development and adjudication of the increased rating claims may provide evidence in support of the claim for a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA orthopedic examination to determine the severity of his service-connected right ankle and lumbar spine disabilities. Any indicated diagnostic tests and studies should be accomplished. All pertinent symptomatology and findings referable to the Veteran's right ankle and lumbar spine disabilities should be reported in detail, including range of motion (ROM) testing. The examiner should set forth the Veteran's range of motion findings and note any pain (and the point during range of motion that pain is reported), pain on use, weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the knees due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should be noted as well. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. All associated neurologic manifestations related to the Veteran's lumbosacral strain should also be described. The Veteran's claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. The complete rationale for any conclusion reached should be provided. 2. Review the examination report for compliance with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 3. Then, readjudicate the Veteran's increased rating claims and adjudicate the claim for a TDIU, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have 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. §§ 5109B, 7112 (West 2012). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs