Citation Nr: 1803587 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-13 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to benefits for Hodgkin's disease based on service connection due to radiation exposure and/or due to VA medical treatment under 38 U.S.C. § 1151. 4. Entitlement to service connection for a left ear disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from August 1977 to July 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal from December 2011 and March 2012 rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The Board notes that the RO adjudicated the issue of entitlement to benefits for Hodgkin's disease due to VA medical treatment under the provisions of 38 U.S.C.A. § 1151 in a November 2016 rating decision. The Veteran has not appealed the decision. However, the Board finds it appropriate to take jurisdiction of this theory of the claim as it elicited testimony from the Veteran at the October 2016 regarding this issue. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). Document in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. The issues of entitlement to service connection for a low back disorder, Hodgkin's disease, and a left ear disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a low back disorder was denied in a June 2003 rating decision. The Veteran did not perfect an appeal of this rating decision nor submit new and material evidence within one year. 2. Evidence received since the June 2003 rating decision includes evidence that supports a link between the Veteran's current disabilities and active service, thus relating to unestablished facts necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The June 2003 rating decision that denied service connection for a low back disorder is final. 38 U.S.C. §7105 (2012); 38 C.F.R. § 20.302(b) (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the Board's favorable decision to reopen the issue of entitlement to service connection for a low back disorder, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim are moot. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C.A. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). A Veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111 (2012). The condition must be noted on the induction examination. 38 C.F.R. § 3.304(b). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b) (2017); VAOPGCPREC 3-03; Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the Veteran's claim is one for service connection. Wagner, 370 F.3d at 1096. A March 1980 rating decision denied entitlement to service connection for a low back disorder on the grounds that the Veteran had a pre-existing back condition that was not incurred in or aggravated by military service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In a November 2002 rating decision, the RO denied the Veteran's claim for a low back disorder stating new and material evidence was not submitted and as a result found that the condition existed prior to service and was not aggravated by service. In a June 2003 rating decision, the RO found there was no new and material evidence to reopen the claim. The RO acknowledged receipt of additional medical records, but found that it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. Thereafter, no communication from the Veteran was received until February 2011. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the June 2003 rating decision included 1) service treatment records (STRs); 2) the March 1980 rating decision; 3) a November 2002 statement from the Veteran that a back specialist indicated he had scoliosis and has been treated for aggravation of his back including in 1998 when his back gave out; and 4) private treatment records including a June 1998 lumbar spine MRI indicating a bulge and facet hypertrophy at L4-L5 without evidence of herniation or stenosis, and a May 2003 statement from Dr. VM that the Veteran has had intermittent back pain since military service and experienced an April 1998 work injury which exacerbated his back. Evidence submitted after June 2003 rating decision includes 1) the Veteran's claim; 2) private treatment records; 3) VA treatment records indicating complaints of low back pain; 4) a February 2011 private examination and opinion by Dr. JF that it would be impossible to have unilateral spondylosis with a grade I spondylolisthesis as indicated in STRs and that the Veteran's low back condition arose out of his military injury; 5) a February 2013 VA opinion; and 6) the October 2016 Board hearing testimony where the Veteran testified that he experienced aggravation of his back condition during service including a 14 foot fall. The Board finds that new and material evidence has been presented. The evidence, including the February 2011 private examination and opinion and the Veteran's October 2016 Board hearing testimony, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - specifically evidence that the Veteran's pre-existing back condition was aggravated by service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran's claim is reopened. ORDER New and material has been presented, and the claim for entitlement to service connection for a low back disorder is reopened. REMAND Regarding the claim for entitlement to benefits for Hodgkin's disease based on service connection due to radiation exposure and for VA treatment under 38 U.S.C.A. § 1151, remand is required for additional development. The Veteran contends that his Hodgkin's disease is due to service in Alaska where the Veteran was exposed to radiation. Additionally, the Veteran contends that a delay in diagnosis by the VA caused accelerated progression of his disease. First, remand is required to obtain outstanding VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Here, the Veteran testified at the October 2016 Board hearing, that he received chemotherapy related to his treatment for Hodgkin's disease at the VA Medical Center (VAMC) Puget Sound in Seattle, Washington. The only VA medical records associated with the claims file are from Ann Arbor and Battle Creek facilities. Upon remand, these records must be obtained. Next, remand is necessary to obtain an addendum opinion regarding the Veteran's claim for entitlement to benefits for Hodgkin's disease for VA treatment 38 U.S.C. § 1151. In November 2016, the VA examiner opined that there was no negligence in not performing a chest x-ray in April 2011. The examiner explained that the Veteran presented at the time with allergic symptoms and responded to therapy directed at allergy, chest exam was normal, and normal medical practice would not indicate a chest x-ray was needed at that time. The examiner also opined that the Hodgkin's disease did not progress in a clinically significant way due to the roughly five weeks delay from April to May 2011 and that the Veteran was not harmed in any way by the delay, explaining that Hodgkin's disease is slowly progressive and that a less than two month delay in diagnosis is highly unlikely to result in any significant progression. The examiner explained that had the chest mass been discovered in April, the subsequent evaluation and therapy would have been identical. Ultimately, the examiner noted that the Veteran has achieved and maintained complete remission which is the optimum clinical outcome. As noted above the Veteran's claims file does not contain a complete record of the Veteran's treatment. Therefore remand is necessary to allow the VA examiner to render an opinion based on a complete claims file. Next, regarding the Veteran's claim for service connection for Hodgkin's disease due to radiation exposure, the Veteran was afforded a VA examination in December 2011. The diagnosis was Hodgkin's disease. The examiner noted a medical history that the Veteran had presumed exposure to Agent Orange from serving in the Republic of Vietnam and opined that the condition was at least as likely as not incurred in-service. The Veteran did not serve in Vietnam. Therefore, the examination is based upon the incorrect theory of entitlement and is inadequate. Rather, the Veteran in his May 2013 substantive appeal stated that his Hodgkin's disease was a result of exposure to radiation during his military service in Alaska, specifically at the Adak Island. The Veteran stated that he wore a radiation badge and radiation exposure came from early warning devices. The Veteran also stated that he was in Alaska for a year approximately from 1976 to 1977 or from 1977 to 1978. A review of the service treatment records (STRs) indicate that the Veteran was seen at the Adak Branch Hospital including in February 1978 and December 1978. The Veteran was not provided with proper notice regarding a claim for service connection involving in-service exposure to radiation. Additionally, the AOJ did not undertake the requisite development to determine whether the Veteran was exposed to radiation during service. A remand is necessary to provide the Veteran with the required notice and to verify whether the Veteran was exposed to radiation during service. Regarding the claim of entitlement to service connection for a left ear disorder, remand is required to afford the Veteran a VA examination. A VA examination is required when (1) there is evidence of a current disability, (2) evidence establishing an in-service event, injury or disease,' or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" related to service is a low threshold. McLendon, 20 Vet. App. at 83. Regarding the left ear disorder, VA treatment records indicate complaints of left ear pain and bilateral exostosis. Thus, there is a current disability. At the October 2016 Board hearing, the Veteran testified that exostosis or surfer's ear, is a painful condition that occurs from the impact of water in the eardrums. The Veteran provided competent testimony that his condition was due to Basic Underwater Demolition (BUD/S) training where the Veteran was constantly in the surf zone and routinely hit by waves. Remand is thus required for a VA examination to determine the etiology of the Veteran's left ear disorder. Regarding the claim for entitlement to service connection for a low back disorder, remand is required for additional development. First, remand is required to obtain relevant private treatment records and Social Security Administration (SSA) records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A (b) (2012); 38 C.F.R. § 3.159(c)(1) (2017). In a private treatment record, Dr. JF cited an August 2006 independent medical examination by Dr. RJ that the Veteran had a right L5 spondylosis with a grade I spondylolisthesis per military. Additionally, in a June 2002 statement, the Veteran stated that he was collecting SSA disability benefits for his back injury. No SSA records or records from Dr. RJ are associated with the claims file. On remand, efforts should be made to obtain outstanding private records of the Veteran's treatment and SSA records. Second, a VA examination must be obtained for further clarification of conflicting medical opinions. In February 2011, Dr. JF assessed chronic low back pain and underlying lumbar degenerative disc disease based on imaging results. Dr. JF stated that he was unsure as to where a diagnosis of spondylolisthesis arose, explaining that it would be virtually impossible to have unilateral spondylosis with a grade I spondylolisthesis. Furthermore, Dr. JF indicated that he did not see anything that would suggest a slip and unilateral spondylosis in and of itself generally would not be symptomatic. He opined that the Veteran's low back condition arose out of his military injury. A VA opinion was obtained in February 2013 regarding the Veteran's back disorder. The examiner opined that the Veteran's chronic low back pain condition of spondylolysis and spondylolisthesis was not due to, or the result of, or aggravated by service. The examiner's focus, however, was on whether the Veteran concealed a back condition upon enlistment and that the opinion by Dr. JF was based on a supplied and false history. However, the examiner did not address Dr. JF's statement that it would be impossible to have unilateral spondylosis with a grade I spondylolisthesis, which was the diagnosis provided by the Medical Board in June 1979. Furthermore, in a May 1979 in-service initial orthopedic evaluation, the physician indicated that physical therapy was ordered but it appeared to aggravate the Veteran's low back symptomatology. The physician also noted that the Veteran may have had a congenital problem or that it existed prior to service; however, it was aggravated by his active duty. Additionally, at the October 2016 Board hearing, the Veteran's representative stated that the Veteran had scoliosis, however, he experienced aggravation of his condition in service from strenuous activities and 14 feet fall onto his back. Therefore, remand is required to afford the Veteran a VA examination and to address these records. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) including VAMC Puget Sound and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address, and dates of treatment or examination any relevant medical records including an independent medical examination by Dr. RJ. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. If, after making reasonable efforts, the records cannot be obtained, notify the Veteran and his representative and (a) identify the specific records that cannot be obtained; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. The Veteran must then be given an opportunity to respond. 4. Contact the appropriate records repositories and request that a search be conducted for any available records to determine if the Veteran was exposed to radiation in service while stationed in Adak Island from 1976 to 1978. Obtain copies of any pertinent records. Document for the claims file which repositories were contacted and why. Accomplish any additional action necessary, to include any follow-up action(s) requested by any contacted entity. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his attorney. 5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the Veteran's claim for Hodgkin's disease due to VA treatment under 38 U.S.C.A. § 1151. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) Whether it is at least as likely as not that the Veteran had additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in not diagnosing the Veteran's Hodgkin's disease prior to May 2011, that he was not afforded the full chemotherapy regimen, and he had to undergo two bone marrow procedures? b) Whether it is at least as likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health-care provider in treating the Veteran's symptoms. c) Whether it is at least as likely as not that the additional disability was an event that was not reasonably foreseeable. In other words, whether the development of the residual disability was an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examiner must address the following: 1) the April 2015 correspondence alleging that the VA failed to diagnose Hodgkin's disease and the Veteran was not provided a chest x-ray when he reported to the VAMC in February and April 2011; 2) the April 2015 statement in which the Veteran reported that VAMC Puget Sound conducted numerous surgeries and botched biopsies, but told the Veteran that he needed to redo a bone marrow surgery and that VAMC Ann Arbor gave the Veteran five weeks to live; 3) the October 2016 Board hearing testimony that the VA did not diagnose the Veteran's Hodgkin's disease in a physical in February 2011, there was a delay between May and September when he began treatment for chemotherapy, the Veteran's chemotherapy regimen was missing bleomycin, and he underwent two bone marrow procedures; and 4) the November 2016 VA medical opinion. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the left ear disorder. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any left ear disorder, including exostosis, had onset in, or is otherwise related to, active service. The examiner must address the following: 1) the March 2013 DRO hearing transcript where the Veteran testified that his ear constantly hurts and he has "little mushrooms" growing inside his ear that needs to be removed; 2) the May 2013 substantive appeal where the Veteran stated that he has surfer's ear or exostosis and that he experienced significant water exposure which caused the ear condition; 3) VA treatment records indicating complaints of left ear pain and bilateral exostosis; 4) the October 2016 hearing transcript including the Veteran's testimony of being in the surf zone during service and that during his career as a commercial diver, he used a helmet unlike during Basic Underwater Demolition (BUD/S) training. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a) The examiner is first requested to clarify all diagnoses related to the low back. If any of the following are not diagnosed, the examiner must provide an explanation: unilateral spondylosis with a grade I spondylolisthesis, degenerative disc disease, and scoliosis. b) Then, for each currently diagnosed low back disorder, the examiner must explain whether it is a congenital disease or defect. For VA purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. c) For each diagnosed low back disorder that is a congenital defect, the examiner must indicate whether it was subject to a superimposed disease or injury during the Veteran's service. d) For each diagnosed low back disorder that is a congenital disease, the examiner must indicate whether it clearly and unmistakably preexisted service. If so, the examiner must state whether the low back disorder was clearly and unmistakably not aggravated during service. e) For each diagnosed low back disorder that is not a congenital defect or is a congenital disease that does not meet the preceding criteria, the examiner must provide an opinion regarding whether it is at least as likely as not (a 50 percent or greater probability) that the low back disorder had its onset in, or is otherwise related to, active service. The examiner must address the following: 1) STRs including the December 1976 Report of Medical history indicating normal spine, the May 1979 initial orthopedic evaluation indicating that physical therapy appeared to aggravate the Veteran's low back symptomatology and that the Veteran may have had a congenital problem or that it existed prior to service, however, it was aggravated by his active duty; and the Medical Board report and diagnosis of unilateral spondylosis with a grade I spondylolisthesis; 2) a May 2003 letter from Dr. VM that the Veteran had a severe April 1998 work injury which exacerbated his back; 3) a February 2011physical examination and opinion by Dr. JF that it would be virtually impossible to have unilateral spondylosis with a grade I spondylolisthesis and the Veteran's back condition arose from military service; 4) the February 2013 VA examination; and 5) October 2016 Board hearing testimony where the Veteran testified that he had scoliosis, experienced a 14 foot fall in-service, and that his back was aggravated by strenuous activity during service. 8. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 9. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 10. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs