Citation Nr: 1045618 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 09-20 170 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to service connection for numbness of the penis.
2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy.
3. Entitlement to an initial compensable evaluation for bilateral toenail onychomycosis.
REPRESENTATION
Appellant represented by: Wisconsin Department of Veterans Affairs
ATTORNEY FOR THE BOARD
J. Schroader, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1951 to January 1953.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Milwaukee, Wisconsin that denied the Veteran's claims of entitlement to service connection for numbness of the penis and for bilateral lower extremity peripheral neuropathy (claimed as "foot numbness" due to cold injury), and that granted service connection for bilateral toenail onychomycosis with a noncompensable rating, effective October 31, 2006.
In August 2010, this appeal was remanded to the RO for further development. Such development has been completed and associated with the claims file, and this case is returned to the Board for further review.
The issue of entitlement to service connection for bilateral lower extremity peripheral neuropathy (claimed as "foot numbness" due to cold injury) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran is not shown by the competent medical evidence of record to have a disability manifested by symptoms of numbness of the penis that is attributable to service or a service-connected disability.
2. The Veteran's bilateral toenail onychomycosis covers less than 5 percent of his entire body area and zero percent of his exposed body area, measures a total of 8.74 total square centimeters (less than 144 square centimeters), and requires no systemic therapy.
CONCLUSIONS OF LAW
1. Service connection for numbness of the penis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2009); 38 C.F.R. §§ 3.102, 3.303 (2010).
2. The criteria for the assignment of a compensable rating for bilateral toenail onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7806, 7813 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
With regard to the Veteran's claims for service connection for numbness of the penis and for an initial compensable evaluation for bilateral toenail onychomycosis, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2010).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2009).
With regard to the Veteran's claim for service connection for numbness of the penis, the Board finds that a VCAA letter dated December 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2010). The letter informed the Veteran of what information or evidence was needed to support his claim on a direct and secondary basis, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain.
Because the Veteran's claim for service connection for numbness of the penis is denied, as explained below, the Board finds that any notice deficiencies regarding the assignment of disability ratings and effective dates is moot. See Dingess, 19 Vet. App. 473.
With regard to the Veteran's claim for an initial compensable evaluation for bilateral toenail onychomycosis, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is non-prejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements).
The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's relevant VA treatment records and private treatment records have been associated with the claims file. The Veteran has at no time referenced any outstanding records that he wanted VA to obtain. VA's duty to assist also generally includes the duty to provide a VA examination or obtain a medical opinion when necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2009).
In July 2007, the Veteran was provided with a VA genitourinary examination relating to his claim for numbness of the penis. In August 2010, this issue was remanded by the Board so that a supplemental VA medical opinion could be obtained. Subsequently, in August 2010, the requested supplemental VA medical opinion was prepared by the same examiner answering all of the questions posed by the Board in its August 2010 remand. Based thereon, the Board finds that there was substantial compliance with its remand directive. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). Furthermore, the Board finds that the July 2007 VA genitourinary examination report in tandem with the August 2010 VA medical opinion reflect that the examiner reviewed the claims file, examined the Veteran, elicited a history from him, provided the requested opinions, and provided adequate reasoning for the conclusions provided. In light of the above, the Board finds that the record contains sufficient evidence to make a decision with regard to the claim.
With regard to the Veteran's claim for a compensable initial evaluation for bilateral toenail onychomycosis, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010) see also Green v. Derwinski, 1 Vet. App. 121 (1991). In this regard, the Veteran was provided with VA examinations in July 2007 and January 2009 relating to his bilateral foot onychomycosis (including February 2009 addenda). While these examination reports reflected diagnosed onychomycosis, neither examination report addressed the rating criteria for the Veteran's condition. Therefore, in August 2010, the Board remanded this issue so that the Veteran would be provided with a new VA examination that addressed the rating criteria. Subsequently, in August 2010, a new VA examination was provided to the Veteran, which addresses the rating criteria as requested by the Board. Based thereon, the Board finds there has been substantial compliance with its remand directive, and the report contains sufficient information to rate the Veteran's disability. Also, the Board notes that there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected diabetes mellitus since he was last examined. See 38 C.F.R. § 3.327(a) (2010). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95.
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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
II. Analysis
A. Numbness of the Penis
The Veteran served on active duty from April 1951 to January 1953 in the United States Navy. He claims that he incurred numbness of his penis as a result of service, to include as a result of either a dorsal slit procedure or circumcision performed in service. In the alternative, the Veteran claims he has numbness of the penis secondary to his service-connected urethritis.
A July 2007 VA examination report (genitourinary) reflects that the Veteran reported a history of experiencing numbness of his penis since around 1987 (although the Board notes that the Veteran said it began in 1995 in a November 2006 statement submitted in support of his claim). The examiner noted that the Veteran's service treatment records reflect that he was hospitalized in September 1952 for treatment of balanitis following a dorsal slit procedure that was performed to treat severe phimosis. The examiner also noted that the Veteran was presently followed for a prostate condition. On physical examination, no evidence of sensory loss on shaft, glans, or foreskin remnant was noted, as well as the fact that the Veteran "withdrew vigorously" when a cotton-tipped applicator was inserted slightly into the meatus. The examiner recorded a diagnosis of "urethritis 1952, no evidence of present activity." When prompted on the Form 2507 regarding "problem associated with diagnosis," the examiner noted "numbness in penis."
In August 2010, the Board remanded this issue to obtain clarification as to whether the Veteran's complaints of numbness of his penis related to a particular disorder, and if so, whether such disorder was related to the Veteran's service-connected urethritis, his in-service dorsal slit procedure, or his reported history of a circumcision procedure in service. Subsequently, an August 2010 VA medical opinion was prepared by the same VA examiner. In his August 2010 medical opinion, the examiner opined that the Veteran's complaints of numbness of the penis were not related to any diagnosed disorder because there was no numbness of the Veteran's penis found on examination. The examiner explained that on examination (in July 2007), when a cotton swab was gently inserted slightly into the meatus, the Veteran withdrew vigorously. The examiner further explained that complications of the Veteran's service-connected urethritis would most likely have been a urethral stricture, which the examiner noted would be highly unlikely with properly treated urethritis. The examiner also noted that even if the Veteran developed urethral stricture, it would not cause numbness of the penis, but rather, it might cause obstructive problems, which the Veteran denied on examination. The examiner went on to opine that the Veteran's reported symptoms of urge incontinence, urgency, nocturia, and loss of bladder control are all lower urinary tract symptoms attributable to an irritable bladder, usually associated with prostatic hypertrophy. The examiner went on to explain further that the Veteran's symptomatology was common in men with prostatic hypertrophy, and that his symptoms are not attributable, in standard medical literature, to urethritis, a dorsal slit procedure, or circumcision.
In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
A disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2009). The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service- connected disability and not due to the natural progress of the nonservice-connected disease. Allen v. Brown, 7 Vet. App. 439 (1995).
Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen for secondary service connection on the basis of the aggravation of a nonservice- connected disorder by service-connected disability. The amendment essentially codifies Allen with language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the claimant.
For disabilities claimed on both a direct and secondary basis, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of a claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the above medical evidence of record, the Board finds that the Veteran is not shown to have a disorder involving numbness of the penis that is attributable to service or a service-connected disability. In fact, as noted, the VA examiner could not find evidence of numbness on VA examination, and the VA examiner specifically noted that a disability manifested by numbness was not diagnosed. In this regard, the examiner explained that complications of the Veteran's service-connected urethritis would most likely be urethral stricture, which the examiner noted would be highly unlikely with properly treated urethritis. The examiner also noted that even if the Veteran developed urethral stricture, it would not cause numbness of the penis, but rather, it might cause obstructive problems, which the Veteran denied on examination.
The Board notes that examiner did indicate the presence of other symptoms, including urge incontinence, urgency, nocturia, and loss of bladder control are all lower urinary tract symptoms attributable to an irritable bladder. The examiner went on to explain further, however, that the Veteran's symptomatology was common in men with prostatic hypertrophy, and that his symptoms are not attributable, in standard medical literature, to urethritis, a dorsal slit procedure, or circumcision.
The Board finds the opinion of the VA examiner to be the most probative evidence of record as to whether the Veteran has a disability manifested by numbness of the penis or other urinary symptomatology that is related to service or a service-connected disability. Without a current diagnosis of a disorder involving numbness of the penis, there may be no service connection for the claimed disability. See id. Furthermore, while other symptomatology was found, the examiner explained in detail why such disability was not related to service or a service-connected disability. The Board also notes that in a November 2007, Dr. M.P. a urologist with Franciscan Skemp, opined that "I, as a urologist, have no idea why glands numbness would be related to a dorsal slit," which statement is consistent with the opinion provided by the VA examiner.
The Board acknowledges an August 2006 letter written by Dr. C.P., PA-C, a private physician, in which he noted the Veteran's history of urethritis and dorsal slit procedure, and reported history of a circumcision and subsequent symptoms of penis numbness since. The Board notes, however, that no diagnosed disorder was noted by Dr. C.P. The Board further notes that the transcription of lay history does not transform it into medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995).
The Board has considered all of the Veteran's lay statements regarding experiencing numbness of the penis due to his in- service dorsal slit procedure, his reported history of a circumcision in service, and his assertion, in the alternative, that the condition was incurred secondary to his service- connected urethritis. Certainly, the Veteran is competent to report experiencing numbness or other symptomatology capable of lay observation, and there is no reason to doubt his credibility. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is not necessarily competent, however, to etiologically link his complaints to service or to a service-connected disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, while the Board has considered the Veteran's complaints, the Board ultimately places more weight on the opinion and detailed clinical findings of the competent health care specialist.
For these reasons, the Board concludes that the preponderance of the evidence is against granting service connection for numbness of the penis, and the benefit of the doubt rule is not for application.
B. Onychomycosis
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2009).
A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2009). When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran's bilateral toenail onychomycosis is currently assigned a noncompensable evaluation under Diagnostic Code 7813, effective October 31, 2006. See 38 C.F.R. § 4.118 (2010). The Veteran seeks a higher initial evaluation.
As an initial matter, the Board notes that the regulations pertaining to rating skin disabilities were revised, effective October 23, 2008. However, those revised provisions are applicable only to claims received on or after October 23, 2008. Because the current claim was received prior to that date, those revisions do not apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008).
Diagnostic Code 7813 provides that certain skin conditions, including onychomycosis (i.e., "tinea unguium") are to be rated as disfigurement of the head, face or neck (diagnostic code 7800); scars (diagnostic codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (diagnostic code 7806), depending upon the predominant disability. See 38 C.F.R. § 4.118 (2008). Diagnostic Code 7800 relates to scars of the head, face, and neck. Diagnostic Code 7801 relates to scars other than on the head, face, and neck that are deep or cause limitation of motion. Diagnostic Code 7803 relates to scars that are unstable. Diagnostic Code 7804 relates to scars that are painful on examination. Diagnostic Code 7805 relates to other scars that limit function of the affected body part. The only other diagnostic codes referenced by Diagnostic Code 7813 that may be appropriate for rating the Veteran's onychomycosis are Diagnostic Code 7802, relating to superficial scars that do not cause limitation of motion, or Diagnostic Code 7806, relating to dermatitis or eczema.
Diagnostic Code 7802 provides a compensable, 10 percent rating for scars that involve areas of 144 square inches (929 sq. cm) or greater. 38 C.F.R. § 4.118 (2008).
Under Diagnostic Code 7806, dermatitis or eczema is evaluated at 10 percent disabling if it affects at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of exposed areas, or; intermittent system therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118 (2008). A 30 percent rating is not warranted unless 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period.
VA examination reports dated in July 2007 and January 2009 both reflect diagnoses of bilateral onychomycosis of the Veteran's toenails, but neither of the VA examination reports include any notation as to the size of the affected area in inches or centimeters, and neither reflects the percentage of the Veteran's entire body affected or of the exposed area affected.
The August 2010 VA examination report reflects that the examiner examined the Veteran's feet and recorded a diagnosis of bilateral toenail onychomycosis, and noted that the condition affected all of the Veteran's toenails. He also recorded the dimensions of the Veteran's affected toenails, as follows: left great toenail, 2.38 sq. cm; left second toenail, .77 sq. cm; left third toenail, .54 sq. cm; left fourth toenail, .48 sq. cm; left fifth toenail, .15 sq. cm; right great toenail, 2.60 sq. cm; right second toenail, .66 sq. cm; right third toenail, .48 sq. cm; right fourth toenail, .40 sq. cm; right fifth toenail, .28 sq. cm; total area of all toenails on both feet, 8.74 sq. cm. Also, the examiner opined that the percentage of the exposed area of the Veteran's body was none, and that the percentage of his total body area affected was less than five percent. The examiner also noted that systemic therapy was not required for the Veteran's bilateral toenail onychomycosis, and that the Veteran had not received any medical or podiatry care for the condition, and that the Veteran reported that he cuts the toenails himself. The Veteran also reported that his toenails were not painful.
As noted above, the Veteran reported to the August 2010 VA examiner that he had never sought medical treatment for his bilateral toenail onychomycosis. In that regard, the Board notes that none of the treatment records associated with the claims file reflect that the Veteran ever received any treatment for the condition, to include any systemic therapy, nor do they reflect any measurements of the affected area (in centimeters or percentages).
In light of the above, the Board finds that the Veteran's bilateral toenail onychomycosis symptoms do not meet the compensable rating criteria under Diagnostic Code 7802 or 7806. As noted above, a compensable rating under Diagnostic Code 7802 requires a total affected area of at least 144 square centimeters, whereas the total affected area of the Veteran's bilateral toenail onychomycosis was measured on examination in August 2010 as only 8.74 square centimeters. Also, as noted above, a compensable rating under Diagnostic Code 7806 requires an affected area of at least 5 percent of the entire body or of exposed areas, or that the condition require intermittent systemic therapy such as corticosteroids, but the examiner in August 2010 noted that the affected area was less than 5 percent of the Veteran's entire body and none of his exposed areas, and that it did not require intermittent systemic therapy. There is no other evidence of record that reflects measurements of the affected area or that the condition ever required intermittent systemic therapy and, as noted above, there is no other Diagnostic Code that would entitle the Veteran to a compensable rating.
The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board notes, however, that there is no evidence of record that the Veteran's onychomycosis ever interfered with his employment or required any period of hospitalization, and it has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Therefore, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).
In summary, the Board finds that the criteria for a compensable rating for the Veteran's bilateral toenail onychomycosis have not been met. Assignment of staged ratings is not for application. See Fenderson v. West, 12 Vet. App. 119 (1999).
ORDER
Entitlement to service connection for numbness of the penis is denied.
Entitlement to an initial compensable evaluation for bilateral toenail onychomycosis is denied.
REMAND
The Veteran claims that he has bilateral lower extremity peripheral neuropathy (claimed as "foot numbness") as a result of cold injuries he incurred in service in Korea.
The Board notes that in August 2010, the Board remanded this case so that an updated Form 21-4142 authorization and consent could be requested from the Veteran so that certain private treatment records dated from January 1997 to October 2002 from Gunderson Healthcare (a.k.a. Gundersen Lutheran, see December 2006 Report of Contact) identified by the Veteran as relating to his claim could be requested by the RO. Pursuant to the Board's remand directive, in August 2010, the RO sent a letter to the Veteran with a blank Form 21-4142 requesting that he complete and return the form, authorizing VA to obtain the records from Gundersen Healthcare. More than 30 days later, the Veteran had not responded to the RO's request for the authorization form, and this issue was therefore re-certified to the Board for further review. Meanwhile, however, in September 2010, the Veteran mailed the requested Form 21-4142 to the RO, which form was in turn forwarded to the Board. Because the requested Form 21-4142 authorizing VA to obtain certain private treatment records identified as relevant by the Veteran has been received, another remand is so that the records may be requested by the RO. See 38 U.S.C.A. § 5103(a) (West Supp. 2009); 38 C.F.R. § 3.159; see also Stegall v. West, 11 Vet. App. 268 (1998).
Accordingly, the case is REMANDED for the following action:
1. Request copies of all of the private treatment records relating to the Veteran's claimed bilateral lower extremity peripheral neuropathy (also referred to as "foot numbness") dated from January 1997 to October 2002 from Gundersen Lutheran (a.k.a. Gundersen Healthcare), and associate any records received with the claims file. If the records are found to be unavailable, this should be specifically noted in the claims file. Also, if the facility responds that the records cannot be provided without payment of a fee, please include a copy of such notification in the claims file.
2. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided a new Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.
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.A. §§ 5109B, 7112 (West Supp. 2009).
____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs