Citation Nr: 21006620 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-35 330 DATE: February 4, 2021 ORDER Entitlement to an initial evaluation of 60 percent from September 1, 2016 through January 24, 2020 for coronary artery disease (CAD) post stent placement is granted. Entitlement to an initial evaluation in excess of 60 percent from August 24, 2012 through January 24, 2020 for coronary artery disease (CAD) post stent placement is denied. Entitlement to a compensable evaluation for shell fragment wound (SFW) residuals of the left submandibular and lower right paracervical areas with retained foreign bodies is denied. REFERRED The issue of whether there was clear and unmistakable error (CUE) in a November 2012 rating decision that eliminated the Veteran’s 10 percent rating under 38 C.F.R. § 3.324 was raised on numerous occasions. See September 2014, June 2016, December 2016 statements and February 2017 Board hearing. This issue must first be adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service connected SFW residuals, psychiatric disorder, CAD, and diabetes disabilities is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the evidence indicates the severity, frequency, and duration of the Veteran’s coronary artery disease manifested with a workload of 3-5 METs. 2. Throughout the appeal period, the evidence indicates the severity, frequency, and duration of the Veteran’s coronary artery disease did not manifest with chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. The Veteran’s service-connected scar does not have at least one characteristic of disfigurement and is not manifested by three or four service-connected scars that are unstable and/or painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation of 60 percent from September 1, 2016 through January 24, 2020 for coronary artery disease (CAD) post stent placement have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to an initial evaluation in excess of 60 percent from August 24, 2012 through January 24, 2020 for coronary artery disease (CAD) post stent placement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005. 3. The criteria for entitlement to a compensable evaluation for shell fragment wound (SFW) residuals of the left submandibular and lower right paracervical areas with retained foreign bodies have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.118, Diagnostic Code 7800, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered in November 2012, October 2014, July 2015, and June 2016. In February 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the issues remanded herein, and there is no indication that evidence developed as part of those actions may be relevant to the issues decided herein. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues decided herein. The Veteran should not assume that evidence that is not explicitly discussed herein has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to an initial evaluation of 60 percent from September 1, 2016 through January 24, 2020 for coronary artery disease (CAD) post stent placement is granted. 2. Entitlement to an initial evaluation in excess of 60 percent from August 24, 2012 through January 24, 2020 for coronary artery disease (CAD) post stent placement is denied. The Veteran seeks a higher rating for his service-connected coronary artery disease (CAD) post stent placement. The Veteran contends that his heart condition is a static condition and that a sustained improvement has not been demonstrated. The Veteran also contends that the VA examiners have attempted to blame his heart condition, on a lung condition, that he has not received treatment for or one which has been diagnosed. See September 2014 Form 9. The Veteran is service connected for CAD under Diagnostic Code (DC) 7005 with an effective date of August 24, 2012. Thus, the applicable rating period is from August 24, 2012, the effective date for the award of service connection for that disability, through January 24, 2020. See 38 C.F.R. § 3.400. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. In a March 1983 private treatment record, the doctor indicated that the Veteran had a blood pressure reading of 120/100. The cardiac examination was normal. The doctor indicated that based on an x-ray, the Veteran’s lungs had fibrotic changes bilaterally, and revealed calcification granulomas. See September 2014 correspondence. The December 2009 cardiac catherization report shows mild left ventricular dysfunction with an EF (ejection fraction) of 40-50 percent. In September 2012, the Veteran underwent a VA examination for his coronary artery disease (CAD). The examiner noted that the Veteran takes continuous medication for his condition. The examiner provided an ejection fraction (EF) based on Cardiolite testing from 1999. This examiner provided an estimated METS workload of 3-5 based on the Veteran’s report of dyspnea with activities such as; light yard work, mowing the lawn, and brisk walking. The Veteran reported shortness of breath with mild to moderate exertion, easy fatigability. The examiner stated that the METS level of 3-5 is not a better representation of cardiac capacity because of the Veteran’s COPD. The EF of 55 percent is a better predictive value for cardiac capacity. In November 2015, the Veteran testified at a DRO hearing. The Veteran’s representative stated that the Veteran has not had a METs test. In February 2017, the Veteran testified at a Board hearing regarding his heart condition. The Veteran testified that after his heart attack he has no energy. Prior to the heart attack he could mow the grass, weed, and fish. However, after the heart attack the Veteran is unable to walk more than a block before needing to rest. He can no longer do home repairs or climb up a ladder. The representative also contends that the Veteran is no longer receiving METs tests, but instead the examiners only rely upon the Veteran’s ejection fraction, which he contends is less accurate. The August 2017, echocardiogram report, revealed the Veteran had an EF of 50 percent. The examiner concluded that the Veteran had a normal left ventricular size and normal left ventricular systolic function with ejection fraction 50-55 percent. In February 2020 the Veteran underwent a VA examination for his heart condition. The Veteran reported that he has intermittent chest pain, shortness of breath, increased fatigue, and decreased energy. The examiner noted that the Veteran is on continuous medication to control his heart condition. The examiner noted that the Veteran has chronic congestive heart failure (CHF) but has not had any episodes of acute CHF. The examiner also noted that the Veteran had a stress test in September 2014 that revealed that the Veteran had a METs level of 3-5. The test shows ischemia. In the 2020 interview the examiner provided an estimated METs level of 3-5 based on the Veteran’s report of dyspnea and angina with activities such as light yard work, mowing the lawn, and brisk walking. The examiner stated that the METs level reported was solely due to the Veteran’s heart condition. The Veteran’s ability to work is impacted because of the Veteran’s increased fatigue, shortness of breath, decreased energy, and the Veteran has to take more frequent breaks. In March 2020, the Veteran’s echocardiogram revealed the Veteran had an EF of 58 percent. The Board acknowledges the Veteran’s statements that his condition has not improved and that he reports dyspnea and angina with activities such as; light yard work, mowing the lawn, and brisk walking. While the Veteran is competent to report his symptoms, he is not competent to identify a specific level of disability of his heart condition in accordance to the diagnostic codes, as this is beyond the scope of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, resolving reasonable doubt in the Veteran’s favor, and considering all relevant evidence of record, the Board finds that while the Veteran’s EF levels would indicate that the Veteran’s EF levels fluctuate between 40 and 58 percent, which would result in either a 30 percent or 60 percent rating, his last examination demonstrated that the EF levels alone cannot necessarily be the determining factor. In the March 2020 VA examination, the Veteran had an EF level of 58 percent, but also had chronic congestive heart failure, which resulted in the Veteran receiving a 100 percent rating in January 2020. Thus, the Board must also consider this inconsistency when examining the Veteran’s estimated METs workload, and the Veteran’s lay testimony throughout the appeal period. In the February 2017 Board Hearing, the Veteran testified that he can no longer mow the lawn, weed, or do projects around the house. The Veteran testified that his condition has remained consistent, or static throughout the appeal period. The Veteran’s METs workload has consistently been estimated as 3-5 METS based on the Veteran’s report of dyspnea with activities such as light yard work, mowing the lawn, and brisk walking. The Board also acknowledges that while the Veteran’s medical records include the discussion of an x-ray indicating the Veteran’s lungs had fibrotic changes bilaterally, and revealed calcification granulomas, there is no formal diagnosis of COPD, and thus the September 2012 VA examiner relied upon a false premise, when the examiner indicated that the METS value of 3-5 is not a better representation of the Veteran’s cardiac capacity because of the Veteran’s COPD. Accordingly, the Board concludes that resolving reasonable doubt in the Veteran’s favor that the Veteran is entitled to a 60 percent rating for the entire appeal period, through January 24, 2020. There is evidence in the record that the Veteran’s estimated METs workload has consistently been between 3-5, but no less. The record also shows the Veteran’s left ventricular dysfunction with an ejection fraction ranging from 40 to 58 percent throughout the appeal period. These findings correspond to the criteria for a 60 percent rating, and no higher under DC 7005. A higher 100 percent rating is not warranted unless there is chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. As stated above, the Veteran’s estimated workload resulted in a METs level between 3-5, an ejection faction no lower than 40 percent, and the Veteran did not have chronic congestive heart failure until January 2020. Thus, the Board concludes that the Veteran’s CAD (heart disease) did not meet the criteria corresponding to a higher 100 percent rating prior to January 2020. In summary, the Veteran’s heart condition did not manifest at a level above a 60 percent rating prior to January 2020, therefore his claim for a higher rating is denied. However, the Board concludes that the Veteran is entitled to a 60 percent rating throughout the appeal period, therefore his claim for an increased rating in excess of 30 percent from September 1, 2016 through January 24, 2020 is granted. Thus, the Board finds that a 60 percent initial rating, but no higher, is appropriate throughout the entire appeal period. 3. Entitlement to a compensable evaluation for shell fragment wound (SFW) residuals of the left submandibular and lower right paracervical areas with retained foreign bodies The Veteran seeks an increased rating for his service-connected shell fragment wound (SFW) residuals of the left submandibular and lower right paracervical areas with retained foreign bodies condition. The applicable rating period is from May 26, 2014, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). The Veteran’s facial scar, SFW is rated under 38 C.F.R. § 4.118, Diagnostic Code 7800, which pertains to scars or other disfigurements of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018 amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrant a 10 percent rating. Three or four scars that are unstable or painful scars warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board notes that in an August 2020 decision, the RO assigned a separate 10 percent rating for a painful scar, effective from May 26, 2015. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7800 or a rating in excess of 10 percent under Diagnostic Code 7804, because the Veteran’s service-connected scar does not have at least one characteristic of disfigurement, does not meet any of the other criteria for a compensable rating under Diagnostic Code 7800, and is not manifested by three or four service connected scars that are unstable and/or painful. A VA examination was conducted in July 2015 for his sinusitis. However, a brief examination of his scar on his nose and neck was performed. The examiner noted that the Veteran’s condition for “SC for shell fragment wounds and retained foreign bodies in his neck and jaw has not change[d].” The examiner did not provide specific details about the Veteran’s condition, other than it has not changed. In February 2017, the Veteran testified at a Board hearing. The Veteran indicated that he spent a month in the hospital for treatment of his shrapnel injuries. The Veteran indicated that he has had a full beard and his representative mentioned it was a good way to hide the scar. A VA examination was conducted in February 2020. On examination, the Veteran’s service-connected scar measured 2 centimeters by .25 centimeters; was painful but not unstable; was not associated with elevation, depression, adherence to underlying tissue, or missing underlying soft tissue; was not associated with abnormal pigmentation, induration, and inflexibility; and did not result in any limitation in function. Thus, with regard to Diagnostic Code 7800, the scar was not manifested by any characteristics of disfigurement, as it was not 13 or more centimeters in length, 0.6 centimeters in width, elevated or depressed, adherent, or of an area exceeding 39 square centimeters. With regard to Diagnostic Code 7804, the Veteran had only one scar that was painful but not unstable. The Board has also considered the other diagnostic codes pertaining to scars. However, the Veteran’s facial scar is not deep and non-linear and is not associated with underlying soft tissue damage. The scar also does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7801 and 7802, both prior to and from August 13, 2018, are not for application in this case. The Board notes that the Veteran is service connected under Diagnostic Code 7804 for pain in his facial scar. However, the Veteran has one painful/unstable scar and in order to receive a higher rating the Veteran’s condition must be manifested by three or four service-connected scars that are unstable and/or painful. Finally, the evidence of record shows there are no other disabling effects that are considered in a rating provided under Diagnostic Codes 7800-04, as contemplated under both pre- and post- August 13, 2018, Diagnostic Code 7805. The Board acknowledges that the Veteran believes that the service-connected scar has been more severe than the assigned disability ratings reflect. Moreover, the Veteran is competent to report observable symptoms relating to his service-connected scar. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and the medical evidence of record does not show, that the scar is manifest by one characteristic of disfigurement, by three or more painful or unstable scars, or by a scar that is both painful and unstable. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for higher ratings for the service-connected shell fragment wound (SFW) residuals of the left submandibular and lower right paracervical areas with retained foreign bodies. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service connected SFW residuals, psychiatric, CAD, and diabetes disabilities is remanded. The Veteran contends that his obstructive sleep apnea is the result of his military service. He indicated that his mother commented about his loud snoring. His spouse also indicated that he snores loudly, gasps for air, and it has become worse. His spouse also indicated his snoring occurred when he was still physically fit. In the alternative, the Veteran contends that his sleep apnea is secondary to his heart, diabetes, and shell fragment wound disabilities. The Veteran contends that while the VA examiners have indicated that his sleep apnea is a result of his weight gain, that instead his weight gain is the result of his service-connected disabilities. VAOPGCPREC 1-2017 recognizes that, although obesity itself may not be service connected, obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In this case, there is some support in the medical evidence of record for the contention that the obesity acts as an intermediate step connecting the Veteran’s sleep apnea to his service-connected disabilities. Specifically, in the March 2020 VA examination, the examiner noted that the Veteran’s March 2015 sleep study states that the Veteran’s obstructive sleep apnea is due to excessive weight gain. The Board therefore finds that an opinion must be obtained as to whether the Veteran’s obesity acts as an intermediate step connecting his sleep apnea to his service-connected heart, diabetes, and shell fragment wound disabilities. The Veteran also contends that he did not receive an adequate examination because the examiner used the Veteran’s BMI as the only measure and a complete study was not performed and the examination did not address his heart or diabetes. The Board also notes that the examiner did not note or address, the Veteran’s contentions that he has snored since service, and that he snored prior to his weight gain. Therefore, the VA examiner’s opinion regarding the Veteran’s obstructive sleep apnea disability is inadequate because the examiner did not consider all of the evidence, and the claim must be remanded to obtain an adequate opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board therefore finds the March 2020 VA examination to be inadequate, and that a remand is required so that an addendum opinion may be obtained, with instructions to consider the Veteran’s theory that his sleep apnea is linked to all of his service-connected disorders in a chain including obesity as an intermediate step, and to consider the lay testimony in support of the Veteran’s claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any obstructive sleep apnea disability. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the condition is related to an in-service injury, event, or disease. The examiner must note and address that the Veteran and his spouse stated that: (a.) His mother commented that he snored shortly after he returned from service. (b.) His spouse stated that he snored loudly, gasped for air, and was physically fit, when she noticed his snoring. 2. Determine the relationship, if any, between his service-connected diabetes, heart condition, and shell fragment wound (SFW) residuals of the left submandibular and lower right paracervical areas with retained foreign bodies disabilities, and his obesity. The record must be made available to and reviewed by the examiner. Although the Board has not rendered a credibility determination, the examiner must note and address that the Veteran and his spouse stated that: (a.) His mother commented that he snored shortly after he returned from service. (b.) His spouse stated that he snored loudly, gasped for air, and was physically fit, when she noticed his snoring. The examiner must then opine the following: (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s service-connected diabetes, heart, or SFW conditions caused the Veteran to become obese? (d.) If so, was the obesity, as a result of the service-connected diabetes, heart, or SFW conditions, a substantial factor in causing the Veteran’s sleep apnea? (e.) Would the Veteran’s sleep apnea have not occurred but for the obesity caused by the service-connected diabetes, heart or SFW conditions? 3. The examiner should give a detailed explanation for the reasons for the opinion(s) provided. The medical reasons for accepting or rejecting the Veteran’s theories of entitlement should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his 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. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.