Citation Nr: 1806376	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-21 770A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a hearing loss disability; and if so, whether the claim may be granted.  

2.  Whether new and material evidence has been received to reopen a claim for service connection for a back disability; and if so, whether the claim may be granted.  

3.  Whether new and material evidence has been received to reopen a claim for service connection for a skin disability; and if so, whether the claim may be granted.  

4.  Entitlement to service connection for a left ankle disability.

5.  Entitlement to service connection for a right thumb disability.

6.  Entitlement to service connection for a neck disability.

7.  Entitlement to service connection for a nasal disability.
8.  Entitlement to service connection for an acquired psychiatric disability, to include a passive aggressive disorder, bipolar disorder, manic depression and posttraumatic stress disorder (PTSD).  

9.  Entitlement to service connection for insomnia.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Baskerville, Counsel 


INTRODUCTION

The Veteran served on active duty from July 1968 to April 1972.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2003 and May 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.

In July 2003, the RO denied the Veteran's claim for entitlement to service connection for PTSD.  The Veteran filed a timely Notice of Disagreement and perfected his appeal in April 2005.  For reasons unknown, the matter was never certified to the Board.  Therefore, the Board finds that the Veteran's claim for entitlement to PTSD has been appealed and continuously prosecuted since April 2005.  

The Veteran then filed another claim in March 2010 claiming entitlement to service connection for manic depression.  In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  In light of the Court's decision in Clemons, the Board has re-characterized the psychiatric issues on appeal as entitlement to service connection for an acquired psychiatric disorder, to include passive aggressive disorder, bipolar disorder, manic depression and PTSD.  This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons.

In August 2017, the Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing.  A copy of that transcript has been associated with the Veteran's electronic claims folder. 

The issues of entitlement to service connection for insomnia, and back, skin, neck, nasal, and acquired psychiatric disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The claims for service connection for a hearing loss and back disability were denied in an August 1972 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims.

2.  The claim for service connection for a skin disability was denied in an August 1976 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim.

3.  The Veteran does not have a hearing loss disability of such severity to constitute a disability for VA compensation purposes.

4.  The Veteran's left ankle disability is not related to his military service and was not manifested within the one year following separation from service. 

5.  The Veteran's right thumb disability is not related to his military service.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claims of entitlement to service connection for a hearing loss disability, a back disability, and a skin disability.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).

2.  A hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

3.  The Veteran's left ankle disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service.  38 U.S.C. §§ 1101, 1110, 1112, 1113 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.09, (2017).

4.  The Veteran's right thumb disability was not incurred in or aggravated by active military service.  38 U.S.C. §§ 1101, 1110, 1112, 1113 (West 2012); 38 C.F.R. § 3.303 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The Board finds that new and material evidence has been received to reopen the claims of entitlement to service connection for a hearing loss disability, a back disability and a skin disability.  Therefore, no further development is required with respect to this aspect of the Veteran's appeal as any deficiency has been rendered moot.

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).  

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II.  Application to Reopen Based on New and Material Evidence

The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claims 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 an August 1972 rating decision, the RO denied the Veteran's claims to entitlement to service connection for a hearing loss disability due to no evidence of a hearing loss disability in service and for a back disability due to no evidence of a chronic injury in service or at time of rating.  The Veteran was notified of his appellate rights.  A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period.  Therefore, the August 1972 rating decision is final.  

In an August 1976 rating decision, the RO denied the Veteran's claim to entitlement to service connection for skin disease due to no complaints or treatment for a skin condition during service and no current chronic skin condition.  The Veteran was notified of his appellate rights.  A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period.  Therefore, the August 1976 rating decision is final.  

Since the last final decision, the Veteran testified that he was exposed to jet engine noise and a sonic boom which caused bleeding in his right ear and decreased hearing acuity.  He also testified that he injured his back when he fell 15 to 20 feet into a ravine and was later diagnosed with degenerative disc disease.  Finally, he testified that he has been treated for a chronic skin disability which he attributed to his potential exposure to herbicide agents as a perimeter security guard in Thailand.  As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156(a).  Moreover, the Board finds that, presuming its credibility for the purpose of this analysis, the evidence is not only new but also material.  It relates to unestablished facts necessary to substantiate the claims and also raises a reasonable possibility of substantiating the claims.  In that regard, the Veteran's testimony relates his in-service noise exposure to his current complaints of diminished hearing; his back disability to an in -service fall and establishes that he has a chronic skin disability which he relates to his in-service herbicide agent exposure.  

It is noted that service treatment records were associated with the Veteran's electronic claims folder in August 2017.  As these are duplicate copies of service treatment records which were already of record, 38 C.F.R. § 3.156 (c) is not applicable to his claim.

Accordingly, the Veteran's claims for service connection for a hearing loss, back and skin disability are reopened.

III.  Service Connection 

In order to obtain service connection under 38 U.S.C.A. §§ 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).  

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 of 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.  38 U.S.C. § 1112(a)(1) (West 2012).  The term chronic disease includes organic diseases of the nervous system, such as sensorineural hearing loss and degenerative joint or disc disease (also referred to as arthritis).  38 U.S.C. § 1101(3) (West 2012); see also 38 C.F.R. § 3.309(a) (2017).  

For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).  
Hearing Loss

In regard to the Veteran's hearing loss, the evidence does not reflect that he suffers from impaired hearing of sufficient severity to qualify for VA disability compensation.  The Veteran was afforded a VA audiological examination in November 2012.  The examination revealed the following puretone thresholds, in decibels:




HERTZ 



500
1000
2000
3000
4000
RIGHT
20
20
25
15
20
LEFT
20
15
25
15
20

The Veteran's Maryland CNC word recognition scores were 96 percent in the right ear and 100 percent in the left ear.  

There is no evidence that the Veteran's auditory thresholds are 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz.  Nor is there any evidence that the Veteran's auditory thresholds in the left ear are 40 decibels in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz.  Finally, there is no evidence that the Veteran's speech recognition scores, using the Maryland CNC Test, are less than 94 percent.  Since having a current disability is the first element to establishing service connection, and the Veteran does not have a hearing disability, for VA purposes, there is no need to consider the remaining elements under Shedden.  

Moreover, presumptive service connection is not warranted because the Veteran has not shown he has a diagnosis of a chronic disease becoming manifest to a degree of 10 percent of more within one 1 year from the date of separation.  The Board concludes that the evidence does not support the claim for service connection and there is no doubt to be resolved.
Left Ankle and Right Thumb 

The Veteran contends that he is entitled to service connection for a left ankle and right thumb disability because he believes both disabilities are related to a 1971 in-service incident where he sprained his ankle playing basketball and ripped his right thumb.  

Service treatment records indicate that the Veteran sprained his left ankle in December 1971 while playing basketball.  X-rays were negative (no fractures noted), although the Veteran had mild swelling at the dorsal foot with mild tenderness.  He was diagnosed with partial lateral ligament tear of the left ankle.  He was treated with a bandage and elevation.  July 1971 records also indicate that the Veteran complained of pain and limited motion of the right thumb.  No chronic disabilities were noted on his separation examination.  

Post service treatment records indicate that the Veteran complained of right ankle pain.  May 2010 x-ray results revealed mild degenerative changes of the right ankle.  No left ankle complaints or private medical x-ray results are of record.  

The Veteran was afforded a VA examination in March 2011 where the examiner noted that the Veteran had normal current x-ray results of his ankle.  He noted that the May 2010 private x-rays indicated that the Veteran reported injuring his hand and ankle after falling in a 20 foot hole 20 years prior (which would have meant the injury occurred in 1990, 18 years after his discharge from service).  The examiner opined that the Veteran's left ankle and right thumb were not caused by or the result of military service.  The examiner reasoned that the Veteran's military service injury was "relatively simple inasmuch as he had no [problems] for a long time thereafter."  He also reasoned that the Veteran denied any left ankle problems and complained only of right ankle pain.  He noted that the Veteran had a normal exam (for age) and normal x-rays (for any age) which would not be the case if he had suffered from a chronic ankle disability over 2 decades prior.  


The Board finds the March 2011 medical opinion to be the most probative evidence of record.  The examiner provided a reasoned opinion based on a complete review of the Veteran's claims folder and the Veteran's statements. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion).  As such, the Board is satisfied that the VA clinician duly considered all salient evidence, both clinical and lay.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (noting that greater reliance may be placed on an opinion rendered by an examiner who is fully informed of the pertinent factual premises (i.e., history) of the appeal).  Therefore, the Board finds the examiner's opinion to be of significant probative value.

The Board has considered and rejected the Veteran's statements regarding the etiology of any left ankle and right thumb disability.  The Veteran has provided inconsistent reports regarding which ankle is his current problem and which was injured during service.  Further, the evidence of record has inconsistent reports regarding the in-service incident which precipitated his injuries.  Finally, the Board finds that the Veteran is not competent to provide a medical opinion regarding a diagnosis or the etiology of any left ankle or right thumb disability which have been analyzed through x-ray reports.  

Finally, the Board observes that service connection may be awarded on a presumptive basis for certain disabilities such as arthritis that become manifested within a proscribed period following active military service.  38 C.F.R. §§ 3.307, 3.309.  In this case, however, the Veteran's mild degenerative changes noted in the May 2010 x-ray report relate to his right ankle (not the left ankle which is the subject of the instant claim).

The sole credible, competent evidence of record regarding a nexus to service, then, is the negative medical opinion of the March 2011 examiner.  Based on the above, the Board finds that the preponderance of the evidence is against the claims.  The claim for entitlement to service connection for a left ankle and right thumb be denied.  There is no reasonable doubt to be resolved.  See 38 U.S.C. § 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a hearing loss disability having been received, to this extent the claim to reopen is granted.  

New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a back disability having been received, to this extent the claim to reopen is granted.  

New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a skin disability having been received, to this extent the claim to reopen is granted.  

Entitlement to service connection for a hearing loss disability is denied.

Entitlement to service connection for a left ankle disability is denied.

Entitlement to service connection for a right thumb disability is denied.


REMAND

Back and Neck

The Veteran contends that his back and neck disability are related to an in-service incident where he fell into a ravine.  He testified that fell down the hill and hit various parts of his body.  He self-treated during and post service with over the counter medication.  
Service treatment records indicate that the Veteran injured his back in 1969, but no chronic disabilities were listed on his 1972 separation examination. 

May 2010 X-ray records indicate that the Veteran has mild to moderate degenerative disc disease and degenerative changes in the lower thoracic and lumbar spine.  No nexus opinion was provided.

The Veteran was afforded a VA examination in March 2011 where the examiner noted the Veteran's in-service fall in 1969; subsequent light duty order for less than 3 weeks; normal discharge examination and post service complaints of back ache with private treatment around 1985.  The examiner opined that it was less likely as not that the Veteran's spinal disability was related to service.  The examiner reasoned that the Veteran had minimal problems in service and post service.  The Veteran's x-ray results were better than age group x-rays and the examination showed no evidence of any residuals from military service events.  

The Board finds that a remand is necessary to obtain an addendum opinion due to the examiner not addressing potentially favorable evidence.  In that regard, the Veteran claimed back problems at April 1972 separation and filed his first service connection claim in July 1972 claiming back pain.  Although he might not have sought treatment until 1985, the examiner must address the Veteran's lay reports of back pain prior to seeking medical treatment.  Further, the Veteran again filed a claim for service connection in 2000 alleging back pain.  The examiner must address the Veteran's complaints of continuity of symptoms.  

Skin Disorder

Service treatment records indicate that the Veteran complained of dermatological problems in January 1972.  Specifically, he reported a rash on his neck and upper trunk.  

The Veteran was afforded a VA skin diseases examination in April 2011 where the Veteran complained of pruritis, scaling and lighter discoloration on face around eyes, nose and chest.  The examiner diagnosed the Veteran with seborrheic dermatitis but found that it was less likely than not that the dermatitis was related to the Veteran's active service.  The examiner reasoned that seborrheic dermatitis is a "common finding in the general population and is not related to military service."  However, the Board finds the April 2011 opinion inadequate for adjudication purposes for two main reasons.  First, the examiner indicated that he did not review service medical records.  Second, the examiner's conclusion that dermatitis was common and therefore not related to service is inadequate.  There are many disabilities from which Veterans may suffer which are also common in the general population.  For example, asthma is a common disease.  However, the issue before the examiner is whether it is at least as likely as not (50 percent probability or greater) that this Veteran's exposure and/or experiences during active service caused or resulted in his seborrheic dermatitis.  Therefore, the Board finds that a remand is necessary to obtain another VA examination which properly addresses the service connection issue.  Further, the examiner noted that the Veteran's skin was clear on the day of the examination.  The Veteran testified that his skin irritation comes and goes.  On remand, the Veteran should be scheduled for a VA examination during a time when his skin disability is in an active phase.  

Acquired Psychiatric Disorder

July 1971 service treatment records indicate that the Veteran had "psych history."  Subsequent records indicate that the Veteran reported expressing anger at a security police squadron officer who he feels discriminated against him.  He was diagnosed with passive aggressive personality disorder.  

The Veteran testified that post service he experiences nightmares; is antisocial and night sweats.  He indicates that he has difficulty sleeping for long period at a time.  

The Veteran was afforded a VA examination in November 2010 where the examiner opined that the Veteran did not meet the DSM-IV criteria for PTSD.  Rather, the examiner found that the Veteran carried diagnoses of anxiety and depressive disorder, not otherwise specified.  However, no nexus opinion regarding these diagnoses was provided.  Therefore, the Board finds that a remand is necessary to obtain an addendum opinion from the November 2010 (or an appropriate medical professional) regarding whether the Veteran's diagnosed mental health disabilities are related to active service.  

Insomnia

On his April 1972 separation examination, the Veteran reported frequent trouble sleeping which he self-treated.  No sleep disorder diagnosis, including insomnia, was made at that time.  It is unclear as to whether the Veteran's reports of difficulty sleeping are related to his claimed psychiatric disability.  The Board therefore finds that a remand is necessary to have a VA examiner address whether the Veteran's difficulty sleeping (claimed as insomnia) is a symptom of his psychiatric disability, a separate disability or a symptom of another disability.  

Nasal

The Veteran testified that he experienced nasal problems since being stationed in Thailand.  He testified that he has been on medication and given cortisone shots for his symptoms and was diagnosed with bronchitis.  Currently, he reports that he found over the counter nasal rinse and spray which have helped the symptoms.  

March 2010 private treatment records indicate that the Veteran complained of pain in his shoulder and sinus problems.  There are no records which indicate a diagnosis of bronchitis or records of cortisone shots.  The Veteran testified that some of his private medical records were lost in the wake of Hurricane Katrina.  He submitted private treatment records from several private providers.  It is unclear as to whether the records regarding his alleged bronchitis diagnosis were lost or if the VA needs to request them from the private provider.  Therefore, the Board finds that a remand is necessary to clarify the whereabouts of the Veteran's private treatment records related to his sinus disability.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he provide or authorize the release of any private treatment records related to his claim for entitlement to service connection for a sinus disability, see Board testimony where the Veteran stated that he was diagnosed with bronchitis and treated with prescription medication and cortisone shots, as well as any other records, not already of record, that are relevant to his claim.  

If, after making reasonable efforts to obtain non-VA records the AOJ is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.

2.  Obtain an addendum opinion from the March 2011 VA examiner (or an appropriate medical professional).  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.  If the examiner feels another examination is necessary, another examination should be scheduled.  The examiner is requested to review the claims file and offer an opinion as to the following:

(a)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's back disability began in or is related to service.

(b)  Opine whether the Veteran suffers from a current neck disability. 

(c)  If so, opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed neck disability began in or is related to service.  
The examiner's attention is directed to, but not limited to, the following:

i.  1969 service treatment record indicating that Veteran fell in a hole;

ii.  April 1972 separation examination which indicates back pain;

iii.  July 1972 claim for service connection which alleged back pain;

iv.  1985 private treatment for back pain; and

v.  August 2000 claim for service connection which alleged back pain.

The rationale for an examiner's opinion must not be based solely on the absence of treatment records during and after service.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007); (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service).  

Please provide a complete explanation for all opinions reached.

3.  Then, schedule the Veteran for the appropriate VA dermatology examination to determine the likely nature and etiology of skin rash disability, that may be present, or was present during or proximate to the claim.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The complete record, to include a copy of this remand, the electronic claims folder, must be made available to and reviewed by the examiner in conjunction with the examination.

The VA examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any skin condition (to include a skin rash, including in the groin area) was present in service, was caused by service, or is otherwise related to service.  

The examiner should also address whether any potential skin rash is related to any potential exposure to herbicides agents during service while the Veteran was a security officer along the perimeter of the military base.  

Please provide a complete explanation for all opinions reached.

4.  Obtain an addendum opinion from the November 2010 VA examiner (or an appropriate medical professional).  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.  If the examiner feels another examination is necessary, another examination should be scheduled.  The examiner is requested to review the claims file and offer an opinion as to the nature and etiology of all acquired psychiatric disorders present during the period of this claim.

(a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosis of PTSD in accordance with the DSM-5 diagnostic criteria that is related to events in service as described by the Veteran. 

(b)  Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disorder other than PTSD in accordance with the DSM-5 diagnostic criteria that is related to events in service as described by the Veteran.

(c)  If the examiner finds that the Veteran suffers from a psychiatric disorder which can be attributed to service, the examiner is also asked to address whether the Veteran's complaints of difficulty sleeping can be attributed to the claimed psychiatric disorder or whether the difficulty sleeping is a symptom of another disability.  

The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case.

5.  Ensure the development outlined above has been accomplished, that the examination reports are adequate, and then arrange for any additional development indicated.  Then, readjudicate the claims on appeal.   If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.


The appellant 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).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs