Citation Nr: 1823294 Decision Date: 04/18/18 Archive Date: 04/25/18 DOCKET NO. 13-04 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for residuals of right knee anterior cruciate ligament (ACL) reconstruction with instability. 2. Entitlement to an initial evaluation in excess of 30 percent for residuals of a left knee ACL reconstruction with instability. 3. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis associated with right knee ACL reconstruction. 4. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis associated with left knee ACL reconstruction. 5. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 6. Entitlement to service connection for a sleep disorder. REPRESENTATION Veteran represented by: AMVETS WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 2002 to February 2012, including service in the Persian Gulf Theater of operation. He retired by reason of permanent disability. The issues on appeal initially arose from Department of Veterans Affairs (VA) rating decisions issued by the VA Regional Office (RO) in Lincoln, Nebraska. In an October 2015 decision, the Board of Veterans' Appeals (Board), in pertinent part, denied initial evaluations in excess of 30 percent for right knee anterior cruciate ligament (ACL) reconstruction and for residuals of left knee ACL reconstruction, and denied initial evaluations in excess of 10 percent for osteoarthritis associated with right knee ACL reconstruction and for osteoarthritis associated with left knee ACL reconstruction. The Board also remanded the claims of entitlement to service connection for TBI and a sleep disorder for additional development. The Veteran appealed the denials of those claims for increased initial evaluations to the Court of Appeals for Veterans Claims (Court). In August 2016, the Court issued an Order incorporating a June 2016 Joint Motion for Partial Remand (Joint Motion) which vacated those portions of the Board's October 27, 2015, decision that denied the claims for increased initial evaluations. These four claims now return to the Board from the Court. These matters were previously before the Board in April 2017, at which time they were remanded for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record. The issues of service connection for TBI and a sleep disorder are REMANDED to the Agency of Original Jurisdiction and are addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. The Veteran has severe instability of the right knee. 2. The Veteran has severe instability of the left knee. 3. The Veteran has frequent episodes of pain, effusion, and locking of the right knee. Noncompensable limitation of motion is shown as to the right knee. 4. The Veteran has frequent episodes of pain, effusion, and locking of the left knee. Noncompensable limitation of motion is shown as to the left knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a rating in excess of 30 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for a rating of 20 percent, but no higher, for osteoarthritis associated with right knee ACL reconstruction are met. 38 U.S.C. §§ 1155, 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261 (2017). 4. The criteria for a rating of 20 percent, but no higher, for osteoarthritis associated with left knee ACL reconstruction are met. 38 U.S.C. §§ 1155, 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied as to this issue. The Veteran has been afforded VA examinations in conjunction with his appeal. The Board finds the examinations are adequate for the purpose of determining an evaluation, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of the symptoms as they relate to the schedular criteria. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the requisite legal duties in the conduct of the hearing were complied with. During the January 2015 Board hearing, the Veterans Law Judge took necessary measures to identify the issues presented on appeal and posed direct questions to the Veteran designed to elicit information relevant to the disposition of his claims. 38 C.F.R. § 3.103 (c)(2) (2017). There has been substantial compliance with the remand directives of the Board and the Court, and adjudication of the appeal on these issues may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. Increased rating claims Disability evaluations are determined by evaluating the extent to which a Veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has also held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to also recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. Applicable regulations provide that arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017). Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003 (2017). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling. Severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. Diagnostic Code 5258 provides a 20 percent evaluation for impairment of the semilunar cartilage, dislocated with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5260 (limitation of flexion of the leg) provides a 10 percent (compensable) rating when flexion is limited to 45 degrees; 20 percent rating when flexion is limited to 30 degrees; and 30 percent rating when flexion is limited to 15 degrees. Diagnostic Code 5261 (limitation of extension of the leg) provides a 0 percent rating when extension is limited to 5 degrees; a 10 percent (compensable) rating when extension is limited to 10 degrees; a 20 percent rating when extension is limited to 15 degrees; a 30 percent rating when extension is limited to 20 degrees, a 40 percent rating when extension is limited 30 degrees, and a 50 percent rating, the maximum available, when extension is limited to 45 degrees. For VA compensation purposes, normal range of motion for the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14 (2017); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,900 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56, 703-04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. 63, 604 (Dec. 1, 1997) (to the same effect). However, the combined evaluation for the affected leg cannot exceed the rating for amputation at the elective level if amputation were performed. 38 C.F.R. § 4.68 (2017). The Veteran was afforded a VA examination of the knees in August 2012. He reported constant dull, aching pain and stiffness in both knees that he rated as 3/10 on a 10 scale. The appellant stated that after use or with position changes, he had sharp, stabbing pain in the knees that he rated 7-8/10 that typically resolved within 60-90 seconds. He indicated that he had associated instability, buckling, giving way and a history of falls. It was reported that he normally wore ACL braces on both knees at all times, but that the straps currently needed repair and he was awaiting replacements. The examiner noted that X-rays of both knees performed in August 2011 revealed osteoarthritis and chronic effusion. The Veteran related that he rested and elevated the knees and limited his activities to treat these symptoms. He affirmed that flare-ups impacted function of the knees and/or lower leg resulting in decreased range of motion and slower time performing usual activities. On physical examination, right knee range of motion was from zero to 110 degrees with pain beginning at 45 degrees. Left knee range of motion was from zero to 100 degrees with pain beginning at 45 degrees. There was no additional limitation in range of motion following repetitive-use testing. It was reported that the Veteran had some functional loss and/or functional impairment consisting of less movement than normal, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, instability of station and interference with sitting, standing and weight-bearing. There was pain to palpation of the joint line or soft tissues. Muscle strength was normal. There was no evidence of recurrent patellar subluxation/dislocation. The examiner referred to frequent episodes of joint pain and locking with a history of bilateral meniscectomy and arthroscopy, but without current signs or symptoms. It was noted that he had scars of the knee that were not painful and/or unstable. It was determined that the Veteran's knee and/or lower leg condition did not impact his ability to work. The Veteran was currently working. Following examination, a diagnosis of status post ACL reconstruction, bilateral knees, with residual instability in both knees was rendered. A December 2012 rating decision granted service connection for status post ACL reconstruction with residual instability, right knee, evaluated as 20 percent disabling, and status post ACL reconstruction with osteoarthritis of the left knee, rated 10 percent disabling, under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5257, effective from February 2012. At a VA examination of the knees in June 2014, the Veteran described bilateral knee pain, intermittent swelling, as well as the buckling and instability, with popping and snapping with range of motion. He stated that prolonged weightbearing, changes in weather, and an overall increase in activity levels involving the knees could result in flare-ups, resulting in increased pain, and decreased range of motion. It was reported that he typically took no medication, but would utilize ice, rest, stretching, and activity limitation as alleviating factors. The Veteran related that he had had no knee surgery since service, but did have physical therapy in the past. He had not had any injections. He indicated that he wore knee braces regularly, but reported no periods of incapacity or time lost from work in the past year secondary to his knees. The Veteran worked as a truck driver and prolonged sitting could cause some increase in the discomfort. On examination, right knee flexion was to 135 degrees with pain at 125 degrees. Right knee extension was zero degrees with no objective evidence of painful motion. Left knee flexion was 135 degrees with painful motion beginning at 125 degrees. Extension was zero degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions with post testing flexion ending at 130 degrees in both lower extremities. It was noted that he had some functional loss, functional impairment manifested by less movement than normal and pain on movement after repetitive testing. There was tenderness or pain to palpation of the joint line or soft tissues of both knees. Muscle strength was 5/5 and was normal in both knees. Joint stability tests indicated instability. There was no evidence of recurrent patellar subluxation or dislocation. X-rays of the knees were interpreted as showing postsurgical changes of bilateral ACL repair. There were degenerative changes involving the medial compartment of the joint space, bilaterally, which were slightly more prominent on the left. Mild lateral tibial subluxation was observed, bilaterally. There was no evidence or fracture or acute bony abnormality, joint effusion or X-ray evidence of patellar subluxation. The impression was status post bilateral ACL repair with degenerative changes in the medial compartment of the joint spaces, bilaterally. The examiner determined that the Veteran's knee and/or lower leg conditions did not impact his ability to work The examiner observed that the Veteran had linear bilateral knee scarring, status post-surgical intervention. The scars were reported to well-healed, not painful or unstable and were essentially asymptomatic. It was added that the scars did not affect limitation of function, did not have any associated symptoms and did not impact his ability to work. Following examination, the pertinent diagnoses were status post ACL reconstruction, bilaterally, with bilateral knee degenerative joint disease and joint laxity/instability. The examiner commented that despite multiple procedures on both knees, the appellant continued to have persistent instability and laxity of the knee joints, including significant anterior laxity of the knee joints, as well as some lateral laxity of the left and right knees. By rating decision in August 2014, status post ACL reconstruction with residual instability of the right knee and left knee was increased to 30 percent, bilaterally, effective June 20, 2014. In an October 2015 decision, the Board granted 30 percent evaluations for instability of the knees, bilaterally, effective February 18, 2012. The Board also denied ratings in excess of 10 percent for osteoarthritis of the bilateral knees based on limitation of motion. In an August 2016 Joint Motion for Partial Remand, the Court vacated the portion of the October 2015 Board decision that denied bilateral ratings in excess of 30 percent for instability and in excess of 10 percent for osteoarthritis. The parties specifically found that the Board has not considered evidence regarding flare-up, functional capacity under weight-bearing, and the examinations did not show results of range of motion testings for in on both active and passive motion. Pursuant to an April 2017 Board remand, the Veteran was afforded a VA examination of the knees in June 2017. The examiner noted diagnoses of bilateral meniscal tears; status post anterior cruciate ligament reconstruction with residual instability, left knee; status post anterior cruciate ligament reconstruction with residual instability, right knee; osteoarthritis associated with right knee anterior cruciate ligament reconstruction; and osteoarthritis associated with left knee anterior cruciate ligament reconstruction. By way of history, the Veteran reported that long periods of standing cause pain in his knees. They give out and he has laxity of the ACL bilaterally, despite surgical interventions. He has to wear hinged knee braces daily. The Veteran denied flare-ups. He reported that he has chronic instability of the knees and can no longer run or jump. Range of motion testing showed 0 to 60 degrees of movement on the right and 0 to 65 degrees of movement on the left, with pain on movement. There was objective evidence of crepitus and pain with weight bearing. The Veteran was able to perform repetitive use testing with no additional limitations. The examiner found that there was pain when the knees were being used in non-weight bearing with the passive range of motion the same as the active range of motion. The examiner was not conducted after repetitive use over time or during a flare-up. Therefore, the examiner declined to offer an opinion on the functional loss in those circumstances. The Veteran's symptoms included more movement than normal, instability of station, disturbance of locomotion, interference with sitting, and interference with standing, bilaterally, with the addition of swelling on the right. Muscle strength testing was normal but the Veteran had bilateral muscle atrophy of the quad, right side worse than left. There was no ankylosis. The examiner noted severe recurrent subluxation, bilaterally and joint stability testing showed anterior instability 10-15mm. The examiner found no tibial or fibular impairment. Regarding meniscal conditions, there examiner noted a meniscal tear with frequent episodes of joint locking, pain and effusion on both sides. In a July 2017 opinion, the VA examiner opined that the Veteran had pain on movement for both flexion and extension and anterior instability of both knees. His functional loss included no prolonged walking or standing, no lifting bending, or crawling, and no physical demanding tasks. Regarding meniscal symptoms, the examiner stated that on the left knee, over half the meniscus was removed and he experienced symptoms of decreased range of motion, instability, pain, crepitus, and tenderness. On the right, the Veteran had a right medial meniscus repair in 2010 indicating that he would still have some intact meniscus. His symptoms included decreased range of motion, instability, pain, and crepitus. The examiner found no evidence of genu recurvatum bilaterally. After review of the pertinent evidence of record, as noted above, the Board finds that throughout the period on appeal, the Veteran experienced severe recurrent subluxation and instability of both knees. Therefore, 30 percent ratings are warranted. As these ratings are the maximum available for instability, no increased ratings are warranted. The Veteran is also presently in receipt of bilateral 10 percent evaluations based on painful, limited motion. To warrant a higher 20 percent rating under Diagnostic Code 5260, the evidence would need to show flexion limited to 45 degrees or less. At worst, the evidence shows flexion limited to 60 degrees on the right and 65 degrees on the left at the June 2017 VA examination. Although the Veteran reported pain at 45 degrees in the August 2012 VA examination, the objective examination findings showed that he was able to maintain range of motion to 110 degrees on the right and 100 degrees on the left. Therefore, the Board finds that ratings in excess of the presently assigned 10 percent ratings are not warranted under Diagnostic Code 5260. Additionally, there was full extension bilaterally throughout the entire period on appeal. As the evidence does not show extension limited to 10 degrees or more, a separate rating under Diagnostic Code 5261 is not warranted. However, the Board has also considered whether the Veteran is entitled to ratings under Diagnostic Code 5258 for impairment of the semilunar cartilage, dislocated with frequent episodes of "locking," pain, and effusion into the joint. The Board finds that the June 2017 VA examination shows the Veteran demonstrated these symptoms as a result of his meniscal tears. Therefore, the Board grants the Veteran bilateral 20 percent ratings for under Diagnostic Code 5258. As stated above, the Veteran may not be compensated for the same symptoms under two different Diagnostic Codes. As Diagnostic Code 5258 affords the Veteran a higher 20 percent rating for his pain and limited motion of the bilateral knees, the Board finds it to be a more appropriate code for rating those symptoms. Therefore, the Veteran is not entitled to the previously assigned 10 percent bilateral ratings under Diagnostic Code 5010-5260, as to maintain both ratings would constitute pyramiding. Noncompensable limitation of motion has been shown as to each knee. It is clear from the Veteran's competent, credible description of his symptoms that there is severe instability and limited and painful motion. The Veteran is currently in receipt of both 30 and 20 percent ratings, bilaterally, to compensate for those symptoms. However, evaluations in excess of the assigned compensable ratings must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40 (2017). The medical evidence of record does not support a finding that the Veteran has functional loss in his knees due to his disabilities such that higher ratings are warranted. His VA examinations, VA medical records, and private records noted that the Veteran's pain caused some functional impairment such as painful motion and less movement than normal. The Veteran reported in several statements that his knee is worse with prolonged standing, sitting, or walking. However, at the VA examinations, the examiners noted the Veteran's knees were not additionally limited by fatigue, weakness, lack of endurance, or incoordination. As such, evaluations in excess of those currently assigned are not warranted at any time during the appeal period. Other diagnostic codes that can provide compensable ratings relating to the knees are Diagnostic Code 5256 (ankylosis), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). 38 C.F.R. § 4.71a. However, separate or increased ratings in accordance with these Diagnostic Codes are not warranted. The Veteran was not found to have any ankylosis or impairment of the tibia or fibula. ORDER An initial evaluation in excess of 30 percent for residuals of right knee anterior cruciate ligament (ACL) reconstruction with instability is denied. An initial evaluation in excess of 30 percent for residuals of a left knee ACL reconstruction with instability is denied. An initial evaluation of 20 percent, but no higher, for osteoarthritis associated with right knee ACL reconstruction is granted, subject to the law and regulations governing the award of monetary benefits. An initial evaluation of 20 percent, but no higher, for osteoarthritis associated with left knee ACL reconstruction is granted, subject to the law and regulations governing the award of monetary benefits. REMAND Remand is necessary to obtain an addendum VA opinion regarding the Veteran's claims of service connection for TBI and a sleep disorder. Specifically, the RO was directed in the April 2017 Board remand to obtain an opinion from a neurologist. The June 2017 VA TBI examination was conducted by a physiatrist. The June 2017 VA opinion regarding a sleep disorder was conducted by a psychologist. The Veteran was also afforded a respiratory examination by a physician assistant. Therefore, the Board finds that remand is necessary to comply with the April 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records and associate them with the claims file. All attempts to obtain records should be documented in the claims folder. 2. The Board notes that the record indicates that a neurologist was not available to complete the original request. Therefore, the RO should forward the records to a neurologist who should be asked to review the reports and diagnostic studies of VA examinations afforded the Veteran with respect to claims for service connection for TBI and a sleep disability. The neurologist should determine whether any additional diagnostic examinations are necessary. The neurologist should determine whether the clinical histories obtained were adequate and comprehensive. The neurologist should review all examinations and diagnostic testing necessary to answer the following questions, and provide an opinion addressing each question: With regard to the Veteran's claim of service connection for TBI, is it is at least as likely as not (50 percent, or greater, probability) that the Veteran has residuals of a TBI? If so, the reviewer/examiner should describe those residuals. If a TBI is diagnosed, the neurologist should provide an opinion as to whether it is at least as likely as not (50 percent, or greater, probability) that residuals of a TBI, if present, are related to the Veteran's service. With regard to the Veteran's claim of service connection for a sleep disorder, the neurologist should state if the Veteran has a diagnosis of a sleep disorder that is separate and distinct from the sleep symptoms associated with his posttraumatic stress disorder (PTSD). If a sleep disorder is diagnosed, the neurologist should provide an opinion as to whether it is at least as likely as not (50 percent, or greater, probability) that the sleep disability is caused by or is a manifestation of an undiagnosed illness or other incident of service. 3. Readjudicate the issues on appeal. If any benefit sought remains denied, provide the appellant and his representative a supplemental statement of the case and an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B , 7112 (2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs