Citation Nr: 1806517	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-16 120	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability.

2.  Entitlement to service connection for a left shoulder disability.

3.  Entitlement to service connection for a left heel spur.

4.  Entitlement to service connection for a right heel spur.

5.  Entitlement to service connection for a left ankle lateral collateral ligament (LCL) sprain.

6.  Entitlement to service connection for a right ankle LCL sprain.

7.  Entitlement to service connection for left leg peripheral venous insufficiency.

8.  Entitlement to service connection for right leg peripheral venous insufficiency.

9.  Entitlement to a disability rating in excess of 10 percent for hypothyroidism.

10.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to August 18, 2014, and in excess of 20 percent thereafter.

11.  Entitlement to a disability rating in excess of 10 percent for varicose veins, status sclerotherapy, left leg.

12.  Entitlement to a disability rating in excess of 10 percent for varicose veins, status sclerotherapy, right leg.

13.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee.

14.  Entitlement to receipt of Dependent Educational Assistance (DEA) under Chapter 35 and concurrent entitlement to compensation for a dependent school age child, "C" after September 1, 2013.

15.  Entitlement to receipt of DEA under Chapter 35 and concurrent entitlement to compensation for a dependent school age child, "D" after August 20, 2016.


ATTORNEY FOR THE BOARD

Jessica O'Connell, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1981 to February 2006.

This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2011, June 2013, February 2016, April 2016, and February 2017 rating decisions issued by several different Department of Veterans Affairs (VA) Regional Offices (ROs).  Jurisdiction is currently with the VA RO in St. Paul, Minnesota.

The Veteran requested to testify at a hearing before the Board in Substantive Appeals (VA Form 9s) dated May 2013 and August 2014.  In a June 2016 statement, the Veteran indicated that she wished to withdraw her request for a Board hearing.  Therefore, the Board considers her hearing request withdrawn.  See 38 C.F.R. § 20.704(e) (2017).

The issues of (1) entitlement to service connection for a left shoulder disability, (2) entitlement to service connection for a left heel spur, (3) entitlement to service connection for a right heel spur, (4) entitlement to service connection for a left ankle LCL sprain, (5) entitlement to service connection for a right ankle LCL sprain, (6) entitlement to service connection for left lower extremity peripheral venous insufficiency, (7) entitlement to service connection for right lower extremity peripheral venous insufficiency, and (8) entitlement to an increased rating for a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  There is no competent and probative evidence of a hearing loss disability during the pendency of the appeal.

2.  Prior to August 3, 2011, the Veteran's hypothyroidism was manifested by objective laboratory evidence of elevated thyroid-stimulating hormone (TSH) and subjective complaints of fatigue, constipation, and mental sluggishness.

3.  Beginning August 3, 2011, the Veteran has continued to take medication for control of her hypothyroidism and there is no objective laboratory evidence of elevated TSH; there is also no competent and probative evidence of any symptoms related to hypothyroidism.

4.  Prior to August 18, 2014, the Veteran's lumbar spine disability was not manifested by forward flexion to 60 degrees or less and combined range of motion was not 120 degrees or less; there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes.

5.  Beginning August 18, 2014, the Veteran's lumbar spine disability has not been manifested by forward flexion to 30 degrees or less; there is also no evidence of ankylosis or incapacitating episodes.

6.  Throughout the period of the claim, the Veteran's left lower extremity varicose veins have been manifested by intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity; there is no evidence of persistent edema or massive board-like edema with constant pain at rest.

7.  Throughout the period of the claim, the Veteran's right lower extremity varicose veins have been manifested by intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity; there is no evidence of persistent edema or massive board-like edema with constant pain at rest.

8.  Beginning September 1, 2013, the Veteran's child "C" elected to receive DEA benefits under Chapter 35.

9.  Beginning August 20, 2016, the Veteran's child "D" elected to receive DEA benefits under Chapter 35.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017).

2.  Prior to August 3, 2011, affording the Veteran the benefit of the doubt, the criteria for a 30 percent rating, but no higher, for hypothyroidism have been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.119, Diagnostic Code 7903 (2017).

3.  Beginning August 3, 2011, the criteria for a disability rating in excess of 10 percent for hypothyroidism have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7903 (2017).

4.  Prior to August 18, 2014, the criteria for a disability rating in excess of 10 percent for a lumbar spine disability have not been met  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017).

5.  Beginning August 18, 2014, the criteria for a disability rating in excess of 20 percent for a lumbar spine disability have not been met  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017).

6.  Throughout the period of the claim, the criteria for a disability rating in excess of 10 percent for left lower extremity varicose veins have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2017).

7.  Throughout the period of the claim, the criteria for a disability rating in excess of 10 percent for left lower extremity varicose veins have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7120 (2017).

8.  The removal of the Veteran's child "C" as of September 1, 2013, from her VA compensation award due to concurrent receipt of Chapter 35 DEA benefits was proper.  38 U.S.C. §§ 1115, 3562 (2012); 38 C.F.R. §§ 3.667, 3.707, 21.3023 (2017).

9.  The removal of the Veteran's child "D" as of August 20, 2016, from her VA compensation award due to concurrent receipt of Chapter 35 DEA benefits was proper.  38 U.S.C. §§ 1115, 3562 (2012); 38 C.F.R. §§ 3.667, 3.707, 21.3023 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

General Legal Criteria

Service Connection Generally

Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder.  38 C.F.R. § 3.310(a).  Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  38 C.F.R. § 3.310(b).

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability . . . in the absence of a proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed).  The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 


Increased Ratings Generally

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).

Factual Background and Analysis

Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board's analysis herein will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claims.

Service Connection for a Bilateral Hearing Loss Disability

The Veteran contends she has a hearing loss disability which she believes is due to her active duty service.

For the 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, and 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The Veteran was afforded a VA audiological examination in July 2011.  The results of audiometric testing did not demonstrate a hearing loss disability as defined by VA regulation.  See 38 C.F.R. § 3.385.  There is no additional evidence of record demonstrating that the Veteran has a hearing loss disability as defined by VA regulation at any point during the period of her appeal.  In the absence of proof of a current disability, there can be no valid claim for service connection.  See Brammer, 3 Vet. App. at 225; see also McClain, 21 Vet. App. at 321.

The Board recognizes that the Veteran is competent to report symptoms she experiences, such as difficulty hearing.  See Layno Brown, 6 Vet. App. 465, 470 (1994).  However, the Veteran is not competent to diagnose a hearing loss disability, as this diagnosis must be made based on the results of objective medical testing.  See 38 C.F.R. § 3.385; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Given that the Veteran does not have a current diagnosis of a hearing loss disability, the benefit of the doubt doctrine is inapplicable, and the Veteran's claim must be denied as a matter of law.

Increased Rating for Hypothyroidism

The Veteran claims she has fatigue, constipation, weight gain, headaches, memory loss, difficulty concentrating, and "no zest for life" due to her service-connected hypothyroidism.

The Veteran's hypothyroidism is currently rated as 10 percent disabling under Diagnostic Code 7903.  Under this diagnostic code, a 10 percent rating is warranted for fatigue or when continuous medication for hypothyroid control is required.  38 C.F.R. § 4.119, Diagnostic Code 7903.  A 30 percent rating is warranted when there is evidence of fatigue, constipation, and mental sluggishness due to hypothyroidism.  Id.  A 60 percent rating is assigned when the disability causes muscular weakness, mental disturbance, and weight gain, and a 100 percent rating is assigned when the disability causes cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia, and sleepiness.  Id.  In light of the conjunctive "and" under this diagnostic code, all criteria under a specific rating must be met to establish entitlement to that rating.  See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007); cf. Johnson v. Brown, 7 Vet. App. 95, 97 (1994) (holding that "or" in the rating criteria shows that each is an independent basis for granting that rating).

The Veteran exhibited laboratory values which reflected borderline hypothyroidism while in the military in the 1990s and again in 2000.  Hypothyroidism was diagnosed in approximately December 2010 and the Veteran has taken medication for this condition since approximately February 2011.  Private records reflect the thyroid-stimulating hormone (TSH) was elevated in February 2011.

At an August 3, 2011, VA examination, the examiner noted that since the Veteran began taking medication for hypothyroidism in approximately March 2011, her symptoms significantly improved; she lost weight, headaches were less frequent, and she had more energy and less fatigue.  A TSH reading from that day was within normal limits.

At an April 2013 VA examination, the Veteran reported that she was being treated for hypothyroidism by a private provider and that her recent work from October 2012 was normal.  The Veteran indicated she had headaches, weight gain, constipation, and foggy thinking, which she felt were due to her hypothyroidism.  The examiner determined that the Veteran's hypothyroid condition was being treated with medication and that her reported symptoms were more likely due to other issues given that her lab work was normal.  At an August 2014 VA examination, the Veteran indicated she experienced weight gain, headaches, constipation, and fatigue, which she felt were due to her hypothyroidism.  The Veteran continued to take medication to manage her condition; July 2014 laboratory testing confirmed normal levels of the TSH.  The examiner concluded that the Veteran's claimed symptoms were less likely than not due to her thyroid condition given that she had not had a recent change in medication, lab work has been in the normal range, and that her symptoms were likely due to other etiology such as hormonal status, diet, exercise, and lifestyle habits, among other potential etiologies.  At a December 2014 VA appointment, the Veteran indicated she continued to take medication for her hypothyroidism and that it was working well.  December 2014 TSH lab work was normal.

Prior to August 3, 2011, affording the Veteran the benefit of the doubt, the Board finds that a 30 percent rating for hypothyroidism is warranted due to evidence of abnormal TSH levels and the Veteran's reports of experiencing fatigue, constipation, and mental sluggishness.  Beginning August 3, 2011, the Board finds a rating in excess of 10 percent is not warranted; since that time, TSH levels have been normal and examiners have found that the Veteran's reports of symptoms were due to other etiology and not due to her hypothyroidism based normal lab results.  There is no evidence throughout the period of the claim that the Veteran has experienced muscular weakness, cold intolerance, cardiovascular involvement, or bradycardia such that a 60 percent or 100 percent rating would be warranted at any time.  See also Camacho, 21 Vet. App. at 366.

In making the above findings, the Board has considered the Veteran's lay statements.  While she is competent to report symptoms she experiences, the Veteran has not demonstrated that she has the medical expertise to relate any of symptoms to her hypothyroidism.  See 38 C.F.R. § 3.159; see also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau, 492 F.3d at 1377.

Accordingly, based on the foregoing evidence and affording the Veteran the benefit of the doubt, prior to August 3, 2011, the criteria for a 30 percent rating, but no more, for hypothyroidism have been met.  Beginning August 3, 2011, the criteria for a rating in excess of 10 percent have not been met.  

Increased Rating for a Lumbar Spine Disability

The Veteran's lumbar spine disability is currently rated as 10 percent disabling prior to August 18, 2014, and as 20 percent disabling thereafter.

All service-connected spine disabilities are rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula).  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

Under the General Rating Formula, a thoracolumbar spine disability is assigned a 10 percent disability rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, when combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  38 C.F.R. § 4.71a, General Rating Formula.  A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.  A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned if there is unfavorable ankylosis of the entire spine.  Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  38 C.F.R. § 4.71a, General Rating Formula at Note (2).  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation, and the normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id.

Objective evidence of neurologic abnormalities of the spine are rated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula at Note (1).

Under the Incapacitating Episodes Rating Formula, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months.  38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months.  Id.  For purposes of evaluation under this rating formula, an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest as prescribed by a physician and treatment by a physician.  Id. at Note (1).

In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.

The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.

The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

Initially, the Board notes that rating the Veteran's lumbar spine disability under the Incapacitating Episodes Rating Formula is not appropriate at any time during the period on appeal because there is no evidence that the Veteran has experienced incapacitating episodes with bed rest prescribed by a physician.  See 38 C.F.R. § 4.71a.  There is also no objective evidence of any neurologic abnormalities of the thoracolumbar spine which are not already service-connected such that a separate rating would be warranted.  See 38 C.F.R. § 4.71a, General Rating Formula at Note (1).  Accordingly, the Board will consider whether the Veteran's lumbar spine disability warrants an increased rating under the General Rating Formula.

Prior to August 18, 2014, the preponderance of the evidence is against a disability rating in excess of 10 percent.  During this time, the evidence of record does not reflect that the Veteran's forward flexion was limited to 60 degrees or less or that her combined range of motion was 120 degrees or less.  See 38 C.F.R. § 4.71a, General Rating Formula.  There is also no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour or evidence of favorable or unfavorable ankylosis.  Id.  

Beginning August 18, 2014, the preponderance of the evidence is against a rating in excess of 20 percent.  During this time, there is no evidence that the Veteran's forward flexion has been limited to 30 degrees or less and there is no evidence of favorable or unfavorable ankylosis of the spine.  Id.

In reaching its decisions herein, the Board has also considered whether manifestations of the Veteran's lumbar spine disability have resulted in a level of functional loss greater than what is contemplated by the assigned disability ratings.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202-06.  Although the Veteran has reported painful motion and examiners have witnessed painful motion on examination, there is no objective medical evidence that range of motion has been further limited due to pain, fatigue, weakness, lack of endurance, or incoordination such that ratings in excess of those assigned would be warranted.  See id.; see also Mitchell, 25 Vet. App. at 33.  The Board recognizes that examiners have been unable to provide an opinion regarding any additional limitation in functional ability in terms of estimating degrees in range of motion without resorting to speculation.  Examiners reasoned that there was no basis for making such a determination without directly observing function under these conditions.  The Board finds it would be inappropriate for VA to demand a conclusive opinion from a physician whose evaluation of the procurable and assembled information prevents the rendering of such opinion.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).  When an examiner has done all that reasonably should be done to become informed about a case, and the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of evidence, there is nothing further to be obtained from that examiner.  Id. at 391.  The Board cannot speculate as to any additional functional impairment and there must be a basis in fact for an assigned rating.  38 C.F.R. § 3.102 (2017).  Based on the foregoing, the Board finds that higher disability ratings are not warranted based on additional functional impairment.  See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that the provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule).

The Board is aware of the recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016) from the Court of Appeals for Veterans Claims (Court).  In reaching the above decisions, the Board has considered the applicability of the principles set forth in this case and finds no basis for remanding for a new examination.

The Correia case involved a claims for increased ratings for knee disabilities, as opposed to the current case which involves a spine disability.  In Correia, the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  Specifically, the Court held that "the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities."  The Court also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59."

The Court provided two qualifications to this requirement.  First, the Court "trust[ed] that its decision [would] be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted."  The Court specifically found that it was not competent to determine "whether upper extremities are or can be weight-bearing," though it did find that knees were "undoubtedly weight-bearing."  In a later footnote, the Court "le[ft] it to medical professionals to determine whether the listed range of motion testing can be performed on the joints at issue in a particular case."  Second, the Court indicated that range of motion testing of the opposite joint does not apply "for joints that do not have an opposite or whose opposite is also damaged."  While the Court did not define "damaged" for these purposes, they noted that both of the appellant's knees were "damaged."  The record shows that the appellant in Correia had knee diagnoses that included both traumatic arthritis and degenerative joint disease.

The Court in Correia held, in essence, that to be adequate, an examination of a joint must include range of motion testing of the joint in the following areas: active motion, passive motion, weight-bearing, and nonweight-bearing.  However, the Board finds that the Correia case is less applicable when evaluating a spine disability rather than a knee disability.  First, the Board notes that there can clearly not be an opposite undamaged joint in the case of a spine disability as there can be in a knee disability.  Second, the Board notes that the examination reports noted the range of motion of the spine in all directions, and where applicable, the specific point at which painful motion begins.  Although most of examination reports in this case did not specify whether the examination was performed with active motion or passive motion, or with weight-bearing or nonweight-bearing, the Board finds that this is inconsequential under the facts of this case.  The Board takes notice that on VA examinations, the testing of the range of spine motions is generally done by assessing active motion rather than passive.  The "active" motion is tested by having the Veteran stand and attempt to lean forward to test flexion, lean backward to test extension, lean sideways to test lateral flexion, and twist the upper torso at the waist to test lateral rotation.  This standing testing is considered to be testing on weight-bearing as the Veteran must support the weight of his body while undergoing such testing.

Although it may be possible to test passive motion without weight-bearing by having the Veteran lie down on a table and have the examiner move the spine by bending the Veteran's body, such testing would be awkward and would not reveal useful information.  Notably, the March 2017 VA examiner indicated that passive range of motion testing was not performed due to the Veteran's reports of flare-ups, presumably because the examiner did not want to injure the Veteran in the process.  Regardless of the above, the Board notes that active range of motion testing produces range of motion test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions.  Similarly, testing on weight-bearing would generally produce more restrictive results than testing done without weight-bearing.  Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing on weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating.

Accordingly, disability ratings in excess of 10 percent prior to August 18, 2014, and in excess of 20 percent thereafter for a lumbar spine disability are not warranted.  

Increased Rating for Bilateral Lower Extremity Varicose Veins

The Veteran contends that she is entitled to a higher rating for her bilateral lower extremity varicose veins disability.  Her varicose vein disability is separately rated for each extremity as 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7120, which governs varicose veins.  

Under Diagnostic Code 7120, a noncompensable rating is warranted for asymptomatic palpable or visible varicose veins; a 10 percent disability rating is warranted for intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery; a 20 percent disability rating is warranted for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema; a 40 percent disability rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; a 60 percent disability rating is warranted for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration; and a 100 percent disability rating is warranted for massive board-like edema with constant pain at rest.  38 C.F.R. § 4.104.

At an August 2011 VA examination, the Veteran reported an increase in the varicosities, particularly in the left posterior leg and stated that she experienced daily aching and fatigue sensations in the back of the legs.  With prolonged sitting, she experienced occasional tingling sensations in the back of the legs and she noticed swelling in her legs at the end of the day, which was relieved by elevation.  She was advised to wear compression leggings, but did not wear them routinely; she denied ulcerations.  On examination, the left posterior calf demonstrated a curvilinear mild varicosity without significant tenderness to palpation; there were no significant varicosities noted in the right lower leg.  There was no evidence of ulcers, edema, stasis pigmentation or eczema present.  Vascular status appeared intact, dorsalis pedis pulse was normal bilaterally, and sensation and gait were normal.

At a January 2016 VA examination, the Veteran reported increased swelling in her legs and feet at the end of the day and pain in her posterior legs on the varicose and sides of her legs.  The examiner noted asymptomatic palpable and visible varicose veins on the left side, aching and fatigue in the bilateral legs after prolonged standing and walking, that symptoms were relieved by elevation of the bilateral lower extremities, and that she had constant pain at rest in the bilateral lower extremities.  There was no evidence of stasis pigmentation or eczema, ulceration, subcutaneous induration, or persistent or massive board-like edema.

Based on the foregoing, the Board finds that a rating in excess of 10 percent for varicose veins of each lower extremity is not warranted.  There is no evidence of persistent or massive board-like edema, subcutaneous induration, stasis pigmentation, eczema, or persistent ulceration and symptoms are not incompletely relieved by elevation of extremity.  See 38 C.F.R. § 4.104, Diagnostic Code 7120; see also Camacho, 21 Vet. App. at 366.  

Additional Compensation Benefits for Dependent Children 

The Veteran seeks entitlement to dependency compensation for her children "C" and "D" as eligible school age children while they were in receipt of Chapter 35 DEA benefits.

In September 2016, VA received notification from the Veteran that her child "D" began attending school the previous month and was using DEA funding.  The evidence reflects that child "D" began receiving DEA funding effective August 20, 2016, under his father's award.  During a review of the Veteran's file, it was discovered that child "C" had elected to receive DEA funding beginning September 1, 2013, under his father's award.

In a December 2016 letter, VA informed the Veteran that additional dependency benefits could not be paid effective September 1, 2013, for child "C" and effective August 20, 2016, for child "D" because concurrent payment of DEA and disability benefits is prohibited.  In a February 2017 letter to the Veteran, VA informed her they were removing child "D" as a dependent from her compensation award effective August 20, 2016, the date child "D" elected to receive DEA benefits under Chapter 35 and that they were removing child "C" as a dependent from her compensation award effective September 1, 2013, the date child "C" elected to receive DEA benefits under Chapter 35.

In general, any veteran whose disability is rated not less than 30 percent shall be entitled to additional compensation for his or her eligible dependents, including a child under the age of eighteen years.  38 U.S.C. § 1115.  That additional compensation may be extended beyond the child's eighteenth birthday based upon school attendance if the child was at that time pursuing a course of instruction at an approved educational institution and a claim for such benefits is filed within one year from the child's eighteenth birthday.  38 C.F.R. § 3.667(a)(1).

Generally, Chapter 35 educational assistance is payable to a child of a veteran who has a total disability permanent in nature resulting from a service-connected disability.  38 C.F.R. § 21.3021.  However, payment of both a dependency allowance as part of a veteran's disability compensation benefits and educational assistance under Chapter 35 constitutes a duplication of benefits that is strictly prohibited after the child has elected to receive the latter benefit.  See 38 U.S.C. § 3562; 38 C.F.R. §§ 3.667(f), 3.707, 21.3023.

A child who is eligible for educational assistance and who is also eligible for a dependency allowance as part of a veteran's disability compensation based on school attendance must elect whether he or she will receive educational assistance or compensation.  38 C.F.R. § 21.3023.  An election of educational assistance is a bar to subsequent payment of compensation on account of the child based on school attendance on or after the age of eighteen years.  Id.  This bar is equally applicable where the child has eligibility from more than one parent.  Id.

In this case, the evidence demonstrates that the Veteran's child "D" elected to receive Chapter 35 DEA benefits as of August 20, 2016, and child "C" elected to receive Chapter 35 DEA benefits as of September 1, 2013.  As noted above, payment of both a dependency allowance as part of a Veteran's disability compensation benefits and educational assistance under Chapter 35 constitutes a duplication of benefits that is strictly prohibited by law and regulation.  38 U.S.C. § 3562; 38 C.F.R. §§ 3.667(f)(1), 3.707, 21.3023(a).  This bar is equally applicable where the child has eligibility from more than one parent.  38 C.F.R. § 21.3023.  As such, the Veteran is not legally entitled to additional disability compensation for her children as of the dates they began receiving Chapter 35 benefits.  The appeals are denied.


VA's Duties to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

VA's duty to notify was satisfied by letters dated June 2011, January 2013, October 2015, and December 2016.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The duty to assist the Veteran has also been satisfied in this case.  The RO obtained the Veteran's service treatment records, VA treatment records, and identified private records.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  Additionally, the Veteran has been afforded several VA examinations.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473, 486 (2006).


ORDER

Service connection for a bilateral hearing loss disability is denied.

Prior to August 3, 2011, a 30 percent disability rating, but no higher, is granted for hypothyroidism, subject to the laws and regulations governing the payment of monetary benefits.

Beginning August 3, 2011, a disability rating in excess of 10 percent for hypothyroidism is denied.

Prior to August 18, 2014, a disability rating in excess of 10 percent for a lumbar spine disability is denied.

Beginning August 18, 2014, a disability rating in excess of 20 percent for a lumbar spine disability is denied.

Throughout the period of the claim, a disability rating in excess of 10 percent for left lower extremity varicose veins is denied.

Throughout the period of the claim, a disability rating in excess of 10 percent for right lower extremity varicose veins is denied.

Entitlement to additional disability compensation for school age child "C" beginning September 1, 2013, is denied.

Entitlement to additional disability compensation for school age child "D" beginning August 20, 2016, is denied.


REMAND

Service Connection for a Left Shoulder Disability

The Veteran claims she has a left shoulder disability, which she believes is secondary to her service-connected right shoulder disability.  The Board notes that the Veteran has not claimed her left shoulder disability is directly due to her active duty service and her service treatment records do not contain any complaints of or treatment for her left shoulder.

The Veteran was afforded a January 2013 VA examination, and the examiner diagnosed left shoulder osteoarthritis.  The examiner provided a February 2013 opinion that it was less likely than not that the Veteran's left shoulder osteoarthritis was caused or aggravated by her right shoulder disability, reasoning that medical records and medical literature did not support an association, and that age is the primary factor for development of osteoarthritis.

The evidence of record includes private medical records which reflect the results of October 2012 magnetic resonance imaging (MRI) and January 2013 diagnoses of left shoulder rotator cuff syndrome and left acromioclavicular (AC) joint arthropathy.  There are no medical opinions of record addressing these diagnoses.  When VA undertakes to obtain a medical opinion, it must ensure that the opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Based on the foregoing, the Board finds a remand is required to obtain a medical opinion regarding whether the Veteran's left shoulder rotator cuff syndrome and left AC joint arthropathy are caused or aggravated by her service-connected right shoulder disability.

Bilateral Heel Spurs

Initially, the Board notes that the Veteran is already service-connected for a bilateral foot disability, diagnosed as plantar fasciitis.  She is now claiming entitlement to service connection for bilateral heel spurs, which she believes are secondary to her service-connected bilateral lower extremity radiculopathy, bilateral lower extremity varicose veins, low back disability, and bilateral knee disability.  

The Veteran underwent a January 2016 VA foot examination and the examiner was asked to provide opinions regarding whether the Veteran's bilateral "foot pain" was caused or aggravated by her service-connected bilateral lower extremity varicose veins, low back disability, and bilateral knee disability.  The examiner indicated that x-rays revealed evidence of bilateral heel spurs and plantar fasciitis, both which cause foot pain.  The examiner then provided negative opinions, yet simultaneously said there was not sufficient documentation in the claims file to determine if the service connected conditions caused foot pain.

The record also contains December 2016 VA opinions, wherein a medical professional provided negative opinions regarding any relationship between the Veteran's bilateral heel spurs and her left leg sciatica.  Interestingly, the medical professional's rationale contained a citation to medical literature discussing factors that increase the risk of developing plantar fasciitis.  The medical professional also indicated that radiographic imaging of heel spurs were of "little diagnostic significance," yet did not provide any further explanation in that regard.

The Board does not find that the aforementioned opinions are adequate because they do not provide clear opinions with supporting rationale.  As noted above, once VA undertakes to obtain a medical opinion, it must ensure that the opinion is adequate.  See Barr, 21 Vet. App. at 311.  Accordingly, a remand is required.  Given that the December 2016 opinion seems to suggest that heel spurs may be related to the Veteran's service-connected plantar fasciitis, an opinion regarding this relationship, if any, must also be obtained.

Bilateral Ankle LCL Sprain

The Veteran contends she has a bilateral ankle disability which she believes is secondary to her service-connected bilateral lower extremity radiculopathy, bilateral lower extremity varicose veins, low back disability, and bilateral knee disability.  She is also claiming service connection for a right ankle disability on a direct basis.

Service treatment records reflect that the Veteran sustained a second or third degree right ankle sprain in January 1988.  There is no evidence of complaints of or treatment for any left ankle disability during service.

At a January 2016 VA examination, the examiner diagnosed a bilateral ankle LCL strain.  The Veteran informed the examiner that she felt her bilateral lower extremity radiculopathy was aggravating her bilateral ankle condition.  The examiner provided opinions that it was less likely than not that the Veteran's bilateral ankle LCL strain was aggravated by her service-connected varicose veins, low back disability, and bilateral knee disability because there was insufficient information in the claims file to make a determination.  No opinions regarding direct service connection were obtained.  In November 2016, a VA medical professional was asked to opine regarding the etiology of the Veteran's right ankle disability and found there was insufficient evidence to support a current diagnosis of any right ankle sprain, reasoning that it was more likely that her current right ankle symptoms were due to her obese body habitus placing an increased mechanical load on her weight-bearing joints.  

Based on the conflicting opinions regarding ankle diagnoses as well as the January 2016 VA examiner's inability to provide an opinion, the Board finds a remand is required.  See Barr, 21 Vet. App. at 311.

Bilateral Lower Extremity Peripheral Venous Insufficiency

At a January 2016 VA artery and veins examination, the examiner diagnosed bilateral lower extremity peripheral insufficiency and determined that it was a progression of the Veteran's service-connected bilateral varicose veins; however, the examiner did not provide any rationale for that conclusion.  The record contains a March 2016 opinion from a different medical professional, who did not perform an examination of the Veteran, which states that the January 2016 VA examination report was negative for any signs of lower extremity peripheral vein insufficiency and negative for any abnormal skin pigmentation and edema.  The medical professional also indicated that the 2011 VA artery and veins examination was negative for any signs or symptoms of lower extremity peripheral vein insufficiency and concluded that no diagnosis was warranted.

The Veteran has submitted private treatment record relating to treatment for her service-connected bilateral lower extremity varicose veins; however, none of these records demonstrate a diagnosis of peripheral vein insufficiency.

In a November 2016 Substantive Appeal, the Veteran took issue with the March 2016 opinion, and stated that had she been examined by a medical professional who provided an opinion regarding a diagnosis that he or she would have seen signs of excess swelling in her ankles and feet and pooled blood and bruising on the inside of the feet.  Significantly, various other VA examinations document objective evidence of swelling in the feet and ankles.

Based on the foregoing, the Board finds a new examination and opinion is required to determine if the Veteran has a diagnosis of lower extremity peripheral venous insufficiency and, if so, if it is secondary to her service-connected bilateral lower extremity varicose veins.  See Barr, 21 Vet. App. at 311.

Increased Rating for a Left Knee Disability

The Veteran's left knee disability is currently rated as noncompensable prior to March 17, 2011, and as 10 percent disabling thereafter; she claims her left knee disability is more severe than the current ratings reflect.  

Although the Veteran was recently afforded a VA knee examination in January 2016, the Board finds an additional remand is required.

Recently, the U.S. Court of Appeals for Veterans Claims determined that the final sentence of 38 C.F.R. § 4.59 (2016) requires that VA examinations include joint testing for pain on 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 v. McDonald, 28 Vet. App. 158 (2016).  The January 2016 VA examination report does not contain all the required range of motion testing, and the medical professional who conducted the examination did not indicate that he or she was unable to conduct the required testing.  Accordingly, a new examination is required.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board.

2.  Obtain an addendum opinion regarding the etiology of the Veteran's diagnosed left shoulder rotator cuff syndrome and left AC joint arthropathy (diagnosed in private records dated January 2013).  The claims file must be made available to and reviewed by the medical professional designated to provide the requested opinions.  Another VA examination of the Veteran's left shoulder should only be performed if the medical professional determines that one is necessary.

After a review of the evidence of record, to include consideration of medical evidence, as well as the Veteran's lay statements, the medical professional should state: 

a) Whether it is it at least as likely as not (50 percent probability or better) that any left shoulder rotator cuff syndrome and left AC joint arthropathy was caused by the Veteran's service-connected right shoulder disability.

b) Whether it is it at least as likely as not (50 percent probability or better) that any left shoulder rotator cuff syndrome and left AC joint arthropathy was aggravated by the Veteran's service-connected right shoulder disability.

A complete rationale for all opinions must be provided.  If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding.

3.  Obtain an addendum opinion regarding the etiology of the Veteran's diagnosed bilateral heel spurs.  The claims file must be made available to and reviewed by the medical professional designated to provide the requested opinions.  Another VA examination of the Veteran's feet should only be performed if the medical professional determines that one is necessary.

After a review of the evidence of record, to include consideration of medical evidence, as well as the Veteran's lay statements, the medical professional should state: 

a) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were caused by the Veteran's service-connected plantar fasciitis.

b) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were aggravated by the Veteran's service-connected plantar fasciitis.

c) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were caused by the Veteran's service-connected bilateral lower extremity varicose veins.

d) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were aggravated by the Veteran's service-connected bilateral lower extremity varicose veins.

e) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were caused by the Veteran's service-connected low back disability.

f) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were aggravated by the Veteran's service-connected low back disability.

g) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were caused by the Veteran's service-connected bilateral lower extremity radiculopathy.

h) Whether it is it at least as likely as not (50 percent probability or better) that the Veteran's bilateral heel spurs were aggravated by the Veteran's service-connected bilateral lower extremity radiculopathy.

A complete rationale for all opinions must be provided.  If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding.

4.  Afford the Veteran the appropriate VA examination to identify all bilateral ankle disabilities present during the period of the appeal and to determine the etiology of all ankle disabilities found.  The claims file must be made available to and reviewed by the examiner.  

After a review of the evidence of record, to include consideration of medical evidence, as well as the Veteran's lay statements, the examiner should provide the following information: 

a) Identify all bilateral ankle disabilities present throughout the period of the claim (from September 2015 to the present).  If the examiner finds no evidence of a bilateral ankle LCL strain, and finds that the previous diagnoses in January 2016 was made in error, he or she must provide an explanation for this determination, taking into account the findings on examination, medical records, and the Veteran's statements.

b) With regard to any diagnosed RIGHT ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it began in or is etiologically related to the Veteran's active duty service, to include as due to a January 1988 right ankle sprain.

c) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was caused by the Veteran's service-connected bilateral lower extremity varicose veins.

d) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was aggravated by the Veteran's service-connected bilateral lower extremity varicose veins.

e) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was caused by the Veteran's service-connected bilateral lower extremity radiculopathy.

f) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was aggravated by the Veteran's service-connected bilateral lower extremity radiculopathy.

g) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was caused by the Veteran's service-connected low back disability.

h) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was aggravated by the Veteran's service-connected low back disability.

i) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was caused by the Veteran's service-connected bilateral knee disability.

j) With regard to each diagnosed left AND right ankle disability, determine whether it is it at least as likely as not (50 percent probability or better) that it was aggravated by her service-connected bilateral knee disability.

A complete rationale for all opinions must be provided.  If the examiner is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding. 

5.  Afford the Veteran the appropriate VA examination to determine if she has a diagnosis of bilateral lower extremity peripheral venous insufficiency and, if so, whether it is secondary to her service-connected bilateral lower extremity varicose veins.  The claims file must be made available to and reviewed by the examiner.  

After a review of the evidence of record, to include consideration of medical evidence, as well as the Veteran's lay statements, the examiner should state: 

a) Does the Veteran have a diagnosis of bilateral peripheral venous insufficiency at any point throughout the period of the claim (from September 2015 to the present)?  If the response is in the negative, the examiner must provide an explanation for this determination, taking into account the findings on examination, medical records, and the Veteran's statements.

b) If the answer to (a) is in the affirmative, determine whether it is it at least as likely as not (50 percent probability or better) that the Veteran's lower extremity peripheral venous insufficiency was caused by her service-connected bilateral lower extremity varicose veins.

c) If the answer to (a) is in the affirmative, determine whether it is it at least as likely as not (50 percent probability or better) that the lower extremity peripheral venous insufficiency was aggravated by her service-connected bilateral lower extremity varicose veins.

A complete rationale for all opinions must be provided.  If the examiner is unable to provide any opinion without resorting to speculation, he or she must provide an explanation for that finding.

6.  Afford the Veteran a VA examination to determine the current nature and severity of her left knee disability.  The examination results should be recorded using the most recent version of the Knee and Lower Leg Conditions Disability Benefits Questionnaire.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  If the examiner is unable to conduct any of the required testing, he or she must explain why this is so.

The examiner must provide a rationale for all opinions requested, to include all those listed on the most recent Disability Benefits Questionnaire.  If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.

7.  The Veteran is informed that it is her responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim.  See 38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation showing that she was properly notified of the examination must be associated with the record.

8.  THIS IS A COMPLEX CASE.  To avoid an additional remand, the AOJ must review all VA medical examination reports and opinions to ensure they are adequate AND that they comply with the Board's specific remand directives.

9.  Then, the Veteran's claims must be readjudicated.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs