Citation Nr: 18144456 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-26 782 DATE: October 24, 2018 ORDER The petition to reopen the previously denied claim for entitlement to service connection for a right ear hearing loss disability is denied. Entitlement to service connection for a left elbow disability is denied. Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a right wrist disability is denied. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for melanoma is denied. Entitlement to service connection for diabetes mellitus, type II is denied. Entitlement to service connection for left upper extremity carpal tunnel is denied. Entitlement to service connection for right upper extremity carpal tunnel is denied. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, and to include as secondary to a service-connected disability is granted. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date prior to December 21, 2015 for convalescence of mechanical low back strain is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a compensable rating for a left ear hearing loss disability is remanded. Entitlement to a rating in excess of 40 percent for low back strain with degenerative disc disease, status post discectomy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a December 2009 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a right ear hearing loss disability, finding that the Veteran had a preexisting right ear hearing loss disability that was not aggravated by service. The Veteran did not appeal. 2. Evidence received since the prior denial does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right ear hearing loss disability. 3. A left elbow disability was not manifest in service and is unrelated to service. 4. A right elbow disability was not manifest in service and is unrelated to service. 5. A left wrist disability was not manifest in service and is unrelated to service. 6. A right wrist disability was not manifest in service and is unrelated to service 7. The Veteran’s sleep apnea was caused or aggravated by his use of opioids to treat his service-connected back disability. 8. Hypertension was not manifest in service, within 1 year from separation, and is not otherwise related to active service. 9. Melanoma was not manifest in service, within 1 year from separation, and is not otherwise related to active service 10. Diabetes mellitus was not manifest in service, within 1 year from separation, and is not otherwise related to active service. 11. Left upper extremity carpal tunnel was not manifest in service and is unrelated to service. 12. Right upper extremity carpal tunnel was not manifest in service and is unrelated to service. 13. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. 14. The Veteran underwent lumbar fusion surgery on December 21, 2015. CONCLUSIONS OF LAW 1. The December 2009 rating decision is final; new and material evidence has not been received to reopen the claim for entitlement to service connection for a right ear hearing loss disability.38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. A left elbow disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 3. A right elbow disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 4. A left wrist disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 5. A right wrist disability was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 6. The Veteran’s sleep apnea is secondary to his service-connected back disability. U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. Hypertension was not incurred in or aggravated by service, and may not be presumed to be related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 8. Melanoma was not incurred in or aggravated by service, and may not be presumed to be related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 9. Diabetes mellitus was not incurred in or aggravated by service, and may not be presumed to be related to service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 10. Left upper extremity carpal tunnel was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 11. Right upper extremity carpal tunnel was not incurred in or aggravated by service and is not attributable to service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 12. The Veteran’s depressive disorder is secondary to his service-connected back and hearing loss disabilities. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 13. The criteria for a rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260. 14. The criteria for an effective date prior to December 21, 2015 for the assignment of a temporary total 100 percent rating based on surgical or other treatment necessitating convalescence for the service-connected back disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.31, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1979 to May 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. A claim for a total disability TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, a claim of entitlement to a TDIU was raised by evidence of record which indicated that the Veteran may be unemployable due to the effects of his service-connected tinnitus and back disability as well as his depressive disorder. See Dr. H.H.G. July 2017 mental evaluation report. As the record now raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board. Application to Reopen Based on New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board finds that the Veteran has not submitted new and material evidence to warrant reopening his previously denied claim for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a December 2009 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a right ear hearing loss disability on the basis that his right ear hearing loss preexisted service and was not aggravated by service. The Veteran was notified of his appeal rights, but did not submit a Notice of Disagreement. Therefore, the December 2009 rating decision is final. Since the December 2009 rating decision, the Veteran submitted a claim in January 2016 alleging that his hearing loss was related to serving on the flight deck of aircraft carriers. While the evidence is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. Specifically, it does not show evidence of aggravation of a preexisting disability. Accordingly, the Board concludes that new and material evidence has not been presented, and the defects that existed at the time of the December 2009 rating decision have not been cured. Therefore, the claim for entitlement to service connection for a right ear hearing loss disability may not be reopened. Service Connection In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Here, the Veteran was not afforded VA examinations in connection with his claims for entitlement to service connection for a bilateral elbow disability; a bilateral wrist disability; bilateral upper extremity carpal tunnel; hypertension, diabetes mellitus and melanoma and the Board finds that he is not entitled to any. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be discussed below, even though there is evidence of current disabilities, there is no credible evidence of an “in-service event, injury or disease,” which would support incurrence or aggravation. Further, there is no indication that the current disabilities may be related to an in-service event. 1. Entitlement to service connection for a left and right elbow disability; a left and right wrist disability, and left and right upper extremity carpal tunnel The Veteran contends, without specificity, that he is entitled to service connection for the above referenced disabilities. However, other than on the Veteran’s January 2016 VA Form 21-526EZ there is no evidence that the Veteran suffers from a bilateral elbow, wrist or upper extremity carpal tunnel disability that is related to service. There is evidence that the Veteran was treated for carpal tunnel release in 2014 which affected his elbow and wrists. However, there is no evidence of any complaints or treatment for any of these disabilities during service or for many years post-service. The Veteran has not asserted why he believes these disabilities are related to service and the record does not support any nexus between the disabilities and service. As the preponderance of the evidence is against the claims for service connection, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sleep apnea The Veteran has not been afforded a VA examination in connection with his sleep apnea claim. However, in August 2017, he submitted an opinion from Dr. H.S. who opined that the Veteran’s use of opioids for his service-connected back disability caused or aggravated his sleep apnea. He cites to the Veteran’s use of hydrocodone – an opiate – to treat his back disability as the source of the Veteran’s development of sleep apnea. “Opiates result in increased respiratory pauses, irregular breathing and shallow breaths. Medical literature states abnormal sleep architecture has been reported during the process of opioids induction, maintenance and withdrawal.” Alternatively, he opines that the Veteran’s psychiatric disability has “aided in the development of and permanently aggravate his severe obstructive sleep apnea.” The Board assigns significant probative value to Dr. H.H.G.’s opinion. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. H.H.G. considered the Veteran’s reported history, medical records and provided an opinion, supported by rationale. 3. Entitlement to service connection for hypertension, diabetes mellitus and melanoma The Veteran has contended, without providing any specifics, that his hypertension and diabetes mellitus are related to service. He also contends that he is entitled to service connection foe melanoma due to his treatment for his low testosterone. See January 2016 VA Form 21-526EZ. There is evidence that the Veteran has current diagnoses of hypertension and diabetes mellitus and was treated for the excision of a melanoma. However, as will be described below, there is no competent evidence, lay or medical, which link these disabilities to service. In the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent or more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. Hypertension, diabetes mellitus, and melanoma (as a malignant tumor) are listed as chronic diseases. 38 U.S.C. § 1112 (a)(1); 38 C.F.R. §§ 3.307, 3.309. Service treatment records are silent for a diagnosis of or treatment for hypertension, diabetes mellitus or melanoma. Post service, the Veteran was diagnosed with hypertension and diabetes mellitus in 2011. Post service VA treatment records indicate that the Veteran had a history of malignant melanoma of the right thumb excised in February 2010. There is no evidence of record which remotely connects the Veteran’s hypertension, diabetes mellitus and melanoma to service. In conclusion, there is no evidence which would support an in-service incurrence of hypertension, diabetes mellitus, or melanoma and no evidence of a diagnosis of hypertension, diabetes mellitus or melanoma within the presumptive period of time. As the preponderance of the evidence is against the claims for service connection for hypertension, diabetes mellitus and melanoma, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety, and to include as secondary to a service-connected disability Secondary service connection may be granted for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). The evidence must show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that when aggravation of a non-service-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). Here, the Veteran was not afforded a VA examination. However, he submitted a July 2017 mental health examination report by a private licensed psychologist, Dr. H.H.G. She diagnosed the Veteran with depressive disorder due to another medical condition under the DSM-5. Specifically, she opined that the Veteran’s depressive disorder was secondary to his degenerative disc disease, tinnitus, hearing loss and back pain. She noted that the Veteran feels isolated and his activities are very limited due to the physical limitations presented by his service-connected back and hearing loss disabilities. She opined that this isolation has caused the Veteran to develop feelings of depression. She cites to medical journal articles in support of her conclusion. The Board assigns significant probative value to Dr. H.H.G.’s opinion. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. H.H.G. considered the Veteran’s reported history, medical records and provided an opinion, supported by rationale. The Veteran also submitted lay statements from his spouse and daughter who attest to the fact that the Veteran has exhibited symptoms of depression due to not being able to go out and work on his farm. “[The Veteran] has been in a depressed state since his back surgery in 2015. The pain and limitations keep him from being able to do the things he used to be able to do bother him greatly.” “My father’s issues with pain and limitations from his back have kept him from doing the work he loved for years on his farm.” See June 2017 correspondences from M.S. and J.C. The Board credits the lay statements to the extent that they provide evidence of symptoms of depression. Although neither the Veteran’s spouse or daughter are not competent to provide an etiological opinion regarding the Veteran’s depressive disorder, they are competent to state the symptoms they witnessed. In considering the evidence of record, the Board finds that there are no negative opinions regarding the relationship of the Veteran’s psychiatric disability to his service-connected disabilities. The Board should not and will not at this juncture develop the case further by attempting to obtain medical evidence for the sole purpose of refuting the positive evidence of record. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for an acquired psychiatric disorder is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to a rating in excess of 10 percent for tinnitus The Veteran contends that he is entitled to a rating in excess of 10 percent for tinnitus, which is rated under Diagnostic Code 6260. Ten percent disabling is the maximum schedular rating available for tinnitus whether the sound is perceived in on ear, both ears, or in the head. See 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular rating for tinnitus, the Veteran’s claim for such a benefit is without legal merit. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). 6. Entitlement to an effective date prior to December 21, 2015 for convalescence of mechanical low back strain It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b). In the case of disability which is temporary in nature, such as that period of convalescence following surgery, the governing regulation provides for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30. Temporary total disability ratings are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30. Extensions beyond the initial 3 months may be made based on factual evidence. See 38 C.F.R. § 4.30(b). In the March 2016 rating decision, the RO granted a temporary total (100 percent) evaluation based on the Veteran’s lumbar fusion surgery. The evaluation was assigned effective December 21, 2015, the date of the Veteran’s surgery. As noted, VA regulations provide that a temporary total evaluation may be assigned effective the date of hospital admission. There is no legal basis under the applicable VA laws and regulations pertaining to convalescent ratings for the assignment of an effective date for convalescence prior to the date of hospital admission/treatment. The Veteran does not contend, nor does the evidence reflect, that a lumbar fusion procedure was performed prior to December 21, 2015. The applicable regulation clearly states that the earliest effective date for a convalescence rating under 38 C.F.R. § 4.30 is “the date of hospital admission or outpatient treatment.” As an effective date may not be assigned prior to the date of the Veteran’s hospitalization, the claim seeking entitlement to an effective date prior to December 21, 2015, must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a neck and bilateral hip disability are remanded. On the Veteran’s January 2016 VA Form 21-525EZ, he contends that his neck and bilateral hip disabilities are related to his service-connected back disability. Specifically, he contends that the same in-service incident where he injured his back caused his neck and hip disabilities. A February 2009 VA examination report notes the Veteran’s history of neck pain. A July 2014 nursing telephone encounter note indicates that the Veteran reported visiting the local emergency room due to hip pain. An April 2014 VA back examination report notes that the Veteran was treated at Rose Chiropractic for his back and sometimes neck pain. The Veteran has not been afforded a VA examination to determine the etiology of his neck and hip disabilities. As there is evidence that these disabilities may be secondarily related to his service-connected back disability, the Board finds that a remand is necessary to obtain a medical opinion. 2. Entitlement to a compensable rating for a left ear hearing loss disability is remanded. In May 2016, the Veteran had an audiology consultation where the audiologist noted that the Veteran had a VA Compensation hearing test completed in February 2016. She also conducted an audiologic evaluation, the results which she noted were in Vista. She noted that the Veteran suffered from mild left ear hearing loss at 1000 Hertz and fell to profound loss at 3000 to 8000 Hertz. The raw data from the audiologic evaluation is not of record. On remand, the RO should obtain the Vista image results from the May 2016 audiology consultation. Also, as it appears the Veteran’s left ear hearing loss has worsened since the February 2016 VA examination, the Veteran should be afforded a VA examination to determine the current severity of his left ear hearing loss disability. See Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). 3. Entitlement to a rating in excess of 40 percent for low back strain with degenerative disc disease, status post discectomy is remanded. The Veteran was afforded a VA back examination in February 2016 where the examiner noted the Veteran’s ranges of motion, including limitations in ranges due to pain. However, the February 2016 examination report did not include any testing for pain on active and passive motion. See Correia v. McDonald, 28 Vet. App. 158 (2016)(38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Therefore, the Board finds that a remand is necessary to afford the Veteran another VA examination which assesses the current severity of the Veteran’s disability and includes the requisite testing. 4. Entitlement to TDIU is remanded. The Board has found that TDIU is part of this appeal. The Veteran has not received notice regarding that claim. In addition, he should be asked to complete a VA Form 21-8940 so that he can provide information concerning his employment, education, training, and other relevant factors. Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Also, as there remains pending service connection and increased rating issues on appeal, the outcome of which may affect the individual and overall combined disability rating, the Board finds that the issues are inextricably intertwined, and as such must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered). Once the service connection and increased rating issues are decided, TDIU must be revisited, to include whether referral for extraschedular evaluation is warranted. On remand, updated VA treatment records should be obtained and associated with the claims file. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA’s duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information 2. Associate with the record any updated VA treatment records. 3. Obtain the May 2016 VA audiologic evaluation results which the audiologist noted were in Vista and associate them with the Veteran’s electronic claims folder. 5. Then, schedule the Veteran for a VA audiological examination to determine the current nature and severity of his service-connected left ear hearing loss disability. All necessary testing, to include complete audiometry and speech recognition, must be accomplished. The examiner should also indicate the impairment that results from the service-connected left ear hearing loss in terms of occupational functioning and daily activities. The electronic claims file should be reviewed by the examiner in conjunction with the examination and the examination report should indicate that such review was accomplished. 6. Then, schedule the Veteran for an examination in order to determine the current level of severity of his low back strain disability. The electronic claims folder and a copy of this remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any and all indicated evaluations, studies and tests deemed necessary, including range of motion testing, should be conducted. The examination report should also include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia, supra. 7. Then, schedule the Veteran for a VA examination to determine the etiology of his neck and bilateral hip disabilities. The Veteran’s electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is asked to offer opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a neck disability that was incurred in or is otherwise related to service. (b) If not, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a neck disability that is caused or aggravated by his service-connected back strain. If aggravation is found, the examiner should address the baselines manifestations and the increased manifestations due to the service-connected back disability. (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a left or right hip disability that was incurred in or is otherwise related to service. (d) If not, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran suffers from a left or right hip disability that is caused or aggravated by his service-connected back strain. If aggravation is found, the examiner should address the baselines manifestations and the increased manifestations due to the service-connected back disability The examiner’s attention is directed to the Veteran’s statement on January 2016 VA Form 21-26EZ where he relates his neck and hip disabilities to the in-service incident where he injured his back. The examiner’s attention is also directed to the post-service complaints and treatment for neck and hip pain. A complete rationale for all opinions reached must be provided. 8. Readjudicate the Veteran’s claims after ensuring that any other appropriate development is complete, to include whether TDIU, is warranted. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims files is returned to the Board for further appellate action. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel