Citation Nr: 1801208 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-10 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent prior to February 27, 2014, and 40 percent thereafter, for left knee osteoarthritis. 2. Whether the reduction from 50 percent to 20 percent, effective May 1, 2013, was proper. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right hip disorder. 4. Entitlement to service connection for dementia. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran service on active duty in the United States Army from July 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2013 and October 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The January 2013 rating decision reduced the Veteran's disability rating for left knee osteoarthritis from 50 percent to 20 percent effective May 1, 2013. The October 2015 rating decision denied the claims for entitlement to service connection for a right hip fracture and dementia. The Board notes that a rating reduction claim is separate and distinct from an increased rating claim. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In a March 2014 rating decision, the RO increased the disability rating for the Veteran's left knee disorder to 40 percent, effective February 27, 2014. Thereafter, the March 2014 Statement of the Case addressed the rating reduction and whether an increased rating was warranted. The Veteran submitted a substantive appeal and the RO certified the appeal to the Board as an increased rating issue. Accordingly, the Board has characterized the issues to include the reduction as well as a claim for increase. A claim for a TDIU has been reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to an increased rating for left knee arthritis, service connection for a right hip disorder, service connection for dementia, and 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. An October 2012 rating decision denied the claim of entitlement to service connection for a right hip disorder; the Veteran did not file a substantive appeal. 2. Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a right hip disorder. 3. A comparison of the evidence upon which the 50 percent disability rating was awarded with the evidence reviewed in connection with the rating reduction to 20 percent, does not reflect sustained improvement in the Veteran's service-connected left knee disorder under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a right hip disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. The reduction from 50 percent to 20 percent effective May 1, 2013, was not proper, and the requirements for restoration of a 50 percent disability rating for left knee osteoarthritis, have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.71a, Diagnostic Code 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied service connection in October 2012. The RO concluded that the Veteran's service treatment record did not contain any complaints, treatment, or diagnosis of a right hip disorder. The Veteran submitted a notice of disagreement in November 2012 and a SOC was issued in February 2013. The Veteran did not perfect his appeal and the decision is final. 38 C.F.R. § 20.302 (2017). In July 2015, the Veteran filed a claim to reopen the issue of entitlement to service connection for a right hip disorder. May 2015 private treatment records showed that the Veteran fractured his right hip when he fell during a hospital stay. In November 2015, the Veteran stated that his left knee instability caused him to fall and fracture his right hip. The Veteran's statements and the private medical records constitute new and material evidence. This evidence is new as it was not previously considered by VA. This evidence is material because it relates to a previously unestablished fact necessary to substantiate the claim. As such, the Board finds that the evidence received since the October 2012 rating decision is both new and material. Consequently, the Board finds that the claim is reopened and, to this extent, the claim is granted. 38 C.F.R. § 3.303(b) (2017); see Shade, 24 Vet. App. at 117. Duties to Notify and Assist The Board notes that, pursuant to 38 C.F.R. § 3.105 (e), where a reduction in the evaluation of a service-connected disability 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 therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation 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. 38 C.F.R. § 3.105 (e) (2017). A copy of a rating decision proposing to reduce the rating for the Veteran's left knee osteoarthritis from 50 percent disabling to 20 percent was sent to the Veteran in October 2012. A letter sent with the rating decision informed the Veteran that he would be afforded 60 days for the presentation of additional evidence to show that compensation payments should be continued at the 50 percent level and that he could request a predetermination hearing. In January 2013, more than 60 days after the issuance of the October 2012 rating decision, the RO issued the rating decision effectuating the reduction. Thus, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. As such, the RO's reduction of the Veteran's left knee osteoarthritis disability was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. Legal Criteria In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). In this case, the Veteran's 50 percent disability rating was awarded effective March 29, 2010. The rating was reduced effective May 1, 2013. Accordingly, 38 C.F.R. § 3.344 (c) applies. Under 38 C.F.R. § 3.344 (c), reexaminations disclosing improvement in a service-connected disability will warrant reduction in rating. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2017); Brown v. Brown, 5 Vet. App. 413, 420 (1993). Section 4.1 provides: "It is ... essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 provides: "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." Thus, "[t]hese 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." Brown (Kevin) v. Brown, 5 Vet. App. 413, 420 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, 38 C.F.R. § 4.13 provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms." Based on the regulations quoted above, VA is required in any rating-reduction case "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." Brown (Kevin), 5 Vet. App. at 421; Schafrath, supra ("[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"). Furthermore, 38 C.F.R. § 4.10 provides that "[t]he 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," and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work." "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." In general, the RO's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. Diagnostic Code 5261 addresses limitation of motion with respect to extension. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Analysis The Veteran's 50 percent rating was assigned based on an April 2010 VA examination. At that time, he described symptoms of pain, stiffness, locking, effusion, dislocation or subluxation, swelling, heat, and tenderness. He reported flare-ups, which occurred once a week and lasted for 20 minutes. His flare-ups were precipitated by physical movement and alleviated with pain medication. He stated that his activities of daily living were not impacted by his left knee osteoarthritis. He was able to stand for ten minutes, although he had to shuffle between both legs. He could walk less than 200 yards. A physical examination revealed no redness, swelling, warmth, or rashes, but did show point tenderness. Range of motion revealed flexion to 120 degrees and extension to 30 degrees, without objective evidence of pain, spasm, weakness, or tenderness with single repetition. Following three repetitions, he had flexion to 114 degrees and extension to 36 degrees. Additional repetitions did not reflect additional pain, fatigue, weakness, lack of endurance, or incoordination. In May 2010, the Veteran was granted service connection for his left knee osteoarthritis, rated as 50 percent disability under Diagnostic Code 5261, effective March 29, 2010. The Veteran's left knee was reexamined in July 2010. He reported flare-ups of the left knee with brief sharp pains. He treated his knee symptoms with 800 milligrams of ibuprofen per day. Range of motion testing revealed flexion to 110 degrees and extension to 46 degrees. Following three repetitions, his flexion was limited to118 degrees and his extension was limited to 42 degrees. The Veteran underwent reexamination of the left knee in October 2012. He reported that his pain was mostly the same. He denied redness, heat, dislocation, and locking. His left knee symptoms were treated with steroid injections in August 2010, 2011, and December 2011. The VA examiner noted that the Veteran was noted to have flexion limited to 120 degrees in December 2011. The Veteran continued to report flare-ups. Range of motion testing showed flexion to 105 degrees, with objective evidence of pain beginning at 90 degrees and extension to 10 degrees with no objective evidence of painful motion. Following three repetitions, extension was limited to 15 degrees. The VA examiner noted additional functional loss following three repetitions due to less movement than normal, incoordination, pain on movement, and the Veteran's need to hold onto the exam table while performing repetitive-use testing. The VA examiner compared the current findings to the 2010 examination findings and noted that flexion had slightly lessened by five degrees and that extension improved by 30 degrees. The VA examiner concluded that the Veteran's left knee disorder impacted his ability to work. Specifically, any employment that would require frequent or prolonged standing, walking, squatting, or lifting heavy objects with his lower body, would limit his employment. As such, based on Diagnostic Code 5261, the Veteran's disability rating was reduced from 50 percent to 20 percent, effective May, 1, 2013. Thereafter, the Veteran's left knee was evaluated in February 2014. He reported that his left knee pain worsened and that he had pain when walking from one room to another. He continued to report flare-ups. Range of motion was 120 degrees flexion with objective evidence of pain at 120 degrees and 35 degrees of extension with pain at 35 degrees. There was no additional limitation in range of motion following three repetitions. His functional impairment included less movement than normal and pain on movement. There was also tenderness or pain to palpation. The VA examiner noted that the Veteran's recent left great toe amputation significantly reduced his bilateral knee range of motion. The Veteran's left knee was most recently examined in April 2017. Range of motion testing revealed flexion to 110 to zero degrees and extension to zero degrees to 110 degrees. The Veteran was unable to perform repetitive-use testing due to pain. Having reviewed the evidence of record, the Board finds that the record does not establish by a preponderance of the evidence that the Veteran's left knee disorder improved so as to warrant a rating reduction under the appropriate rating criteria. Notably, the award of a 50 percent rating in the May 2010 rating decision was predicated on a finding of left knee extension limited to 36 degrees without objective evidence of pain and no additional functional loss following three repetitions. The rating reduction was premised on a subsequent range of motion test reflecting extension to 15 degrees, with objective evidence of pain and additional functional loss following three repetitions. In addition, the next VA examination report showed decreased range of motion with extension limited to 35 degrees and functional impairment following three repetitions. The overall disability picture did not change appreciably, despite shifts in ranges of motion. Additionally, the Board observes that a new precedential opinion that directly affects this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. Unfortunately, the October 2012 examination report does not comply with Correia. Accordingly, the Board finds that the evidence of record fails to reflect that the Veteran had sustained improvement of his left knee disorder as of May 1, 2013. Moreover, the examination used to reduce the Veteran's rating does not comply with Correia. As such, the reduction of the Veteran's disability rating from 50 percent to 20 percent was improper. The prior rating of 50 percent must be restored. Restoration of a 50 percent rating for left knee osteoarthritis as of May 1, 2013, is warranted. ORDER New and material evidence, having been received, the claim to reopen the issue of entitlement to service connection for a right hip disorder is reopened. The reduction from 50 percent to 20 percent for the service-connected left knee disorder was not proper; a 50 percent disability evaluation effective May 1, 2010, is restored; the appeal is granted to this extent only. REMAND In November 2015, the Veteran reported left knee instability and a history of falling due to his claimed instability. However, the October 2012 VA examination report showed normal joint stability test results, the February 2014 VA examiner was unable to complete joint stability testing, and the April 2017 VA examiner determined that joint stability testing of the left knee was not indicated. The Board finds that a remand is required to afford the Veteran an additional VA examination to address the current severity of his left knee osteoarthritis, to include a determination as to whether there is medical evidence that the Veteran experienced recurrent subluxation and/or lateral instability at any point during the appeal period. With respect to his right hip disorder, the Veteran was provided a VA examination in November 2015. The VA examiner opined that it was less likely than not that the Veteran's right hip fracture was caused or aggravated by his service-connected left knee disorder. It was noted that the Veteran slipped on the wet surface and fell. The VA examiner explained that wet surfaces are known to contribute to falls. The Board finds that the VA examination is inadequate for adjudication purposes. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the VA examiner found that the wet floor contributed to his fall, but did not explain why the Veteran's left knee disorder did not cause him to fall despite the condition of the floor. Moreover, the Veteran was subsequently service-connected by for a right knee disorder. The Veteran argued that his bilateral knee disorder caused him to fall and injure his right hip. Accordingly, the Board finds a remand is required to obtain a VA examination. The Veteran asserted that his dementia was caused by his in-service treatment for heat exhaustion and severe hydration. In the alternative, he asserted that his dementia was caused by the medication used to treat his service-connected knee disorders. A VA medical opinion was obtained in December 2016. The VA examiner stated that the literature reviewed did not support a finding that the level of dehydration that the Veteran underwent during service caused his dementia. The Board finds that the November 2016 VA medical opinion is inadequate for adjudication purposes. The VA examiner stated that literature was reviewed, but did not explain what medical literature was used to form the opinion that the Veteran's dementia was not caused by his in-service treatment for heat exhaustion and dehydration. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In addition, the Veteran argued that his dementia was caused by the medication used to treat his service-connected knee disorders. Specifically, the Veteran asserted that he developed a stroke with residual cognitive impairment or dementia due to the medication used to treat his service-connected knee disorders. The VA examiner did not discuss the Veteran's statements. See Dalton v. Nicholson, 21 Vet App. 23, 39-40 (2007) (holding that a VA examination is inadequate if the examiner ignores the veteran's statements of an in-service event or injury unless the Board expressly finds that the injuries or event did not occur). Accordingly a remand is required to obtain a VA examination and opinion. The TDIU claim is intertwined with the increased rating claim remanded herein. Thus, the Board will defer its decision on the TDIU claim until the increased rating claim is resolved. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Provide and request the Veteran to complete and return an updated VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). 3. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected left knee disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. The examiner is also requested to express an opinion as to whether and during what periods since 2012, the Veteran had recurrent subluxation and/or lateral instability as a result of his service-connected left knee osteoarthritis and, if so, whether the instability was slight, moderate, or severe. The examiner is further asked to determine what is causing the Veteran to fall as he describes. That is, please opine as to whether it is at least as likely as not that he is falling due to lateral instability as defined at Diagnostic Code 5257, due to pain or weakness in the left knee, or due to some other cause. 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. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 4. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his currently diagnosed right hip disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that his right hip disorder was caused or aggravated by his service-connected bilateral knee disorders. A complete rationale must be provided for all opinions offered, and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. 5. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his currently diagnosed dementia. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion as to the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was incurred in, was caused by, or is otherwise etiologically related to his military service, to include his in-service treatment for heat exhaustion and dehydration. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was caused by or aggravated by his service-connected disabilities, to include his bilateral knee disorder and the medication used to treat knee disorder. In doing so, the examiner should consider and discuss the November 2015 statement that the medication used to treat the bilateral knee symptoms caused a stroke which led to his cognitive disorder or dementia. A complete rationale must be provided for all opinions offered, and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. 6. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs