Citation Nr: 0636559 Decision Date: 11/27/06 Archive Date: 12/06/06 DOCKET NO. 04-27 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Whether January 1985 (pertaining to the issue of an increased rating for urethral stricture), May 1985, April 1988, June 1988, July 1989, April 1990, and February 2003 rating decisions, contained clear and unmistakable error (CUE). 2. Whether a November 1972 rating decision which granted entitlement to service connection for balanitis, assigning a noncompensable disability rating, effective February 1971, and granted entitlement to service connection for left knee disability, assigning a noncompensable disability rating, effective February 1971, contained CUE. 3. Whether a November 1978 rating decision which granted entitlement to service connection for urethral stricture, assigning a noncompensable disability rating, effective December 3, 1977, contained CUE. 4. Whether an October 2002 rating decision which granted a 40 percent disability rating for service-connected urethral stricture, effective September 15, 2000, and assigned a 20 percent disability rating, effective April 1, 2001; granted service connection for traumatic arthritis, right shoulder, assigning a 10 percent disability rating, effective August 8, 2001; granted service connection for tension headaches, assigning a noncompensable disability rating, effective August 8, 2001; granted a 10 percent disability rating to service-connected exostosis, left knee, effective August 8, 2001; and, denied entitlement to an increased rating for service-connected post-operative residuals, balanitis/parabalanitis, traumatic phimosis, with circumcision scar, contained CUE. 5. Whether a May 1971 rating decision which denied entitlement to service connection for genitourinary condition, and left knee disability, contained CUE. 6. Whether a May 1971 rating decision which denied entitlement to service connection for a skin disease in feet; lymph node infection; and, right shoulder disability, contained CUE. 7. Whether a November 1972 rating decision which denied entitlement to service connection for bilateral shoulder disability, contained CUE. 8. Whether a January 1985 rating decision which denied entitlement to service connection for residuals of Agent Orange exposure, contained CUE. 9. Whether an October 2002 rating decision which denied entitlement to service connection for pharyngitis; lymphangitis; dental condition; tinea barbae; bee sting; and, sores/boils on right arm, contained CUE. ATTORNEY FOR THE BOARD M.W. Kreindler, Associate Counsel INTRODUCTION The veteran served on active duty from January 1964 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) from a February 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in February 2003, a statement of the case was issued in May 2004, and a substantive appeal was received in July 2004. The veteran requested a RO hearing which was scheduled in October 2004; however, he failed to appear. In October 2004, the veteran's private attorney withdrew representation. In November 2004, VA issued a letter to the veteran informing him of his options for representation. Subsequent submissions indicate that the veteran intends to proceed unrepresented. Subsequent to issuance of the May 2004 statement of the case, the veteran submitted evidence in support of his claim in November 2004, December 2004, June 2005, July 2005, and February 2006. In July 2006, the veteran waived his right to AOJ review. Thus, the Board may proceed with a decision on the merits. In June 2005, the veteran filed an increased rating claim for service-connected tension headaches. This is referred to the RO for appropriate action. The issues of whether a May 1971 rating decision which denied entitlement to service connection for a skin disease in feet; lymph node infection; and, right shoulder disability, contained CUE; whether a November 1972 rating decision which denied entitlement to service connection for bilateral shoulder disability, contained CUE; whether a January 1985 rating decision which denied entitlement to service connection for residuals of Agent Orange exposure, contained CUE; and, whether an October 2002 rating decision which denied entitlement to service connection for pharyngitis; lymphangitis; dental condition; tinea barbae; bee sting; and, sores/boils on right arm, contained CUE are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any further action is required on his part. FINDINGS OF FACT 1. A June 1986 Board decision subsumed the portion of the January 1985 rating determination, which granted an increased disability rating for service-connected urethral stricture, and subsumed the May 1985 rating determination. 2. A December 1990 Board decision subsumed the April 1988, June 1988, July 1989, and April 1990 rating determinations. 3. The February 2003 rating determination is not final. 4. The issue of CUE in a May 1971 rating decision, with regard to the issues of entitlement to service connection for genitourinary condition, and left knee disability, are rendered moot per the RO's determination in the November 1972 rating decision. 5. The veteran has not alleged specific errors of fact or law in the November 1972 rating determination, pertaining to the issues of the grant of service connection for balanitis, and left knee disability. 6. The veteran has not alleged specific errors of fact or law in the November 1978 rating determination, pertaining to the issue of the grant of service connection for urethral stricture. 7. The veteran has not alleged specific errors of fact or law in the October 2002 rating determination, pertaining to the assignment of a 40 percent disability rating for service- connected urethral stricture, effective September 15, 2000, and assignment of a 20 percent disability rating, effective April 1, 2001; the grant of service connection for traumatic arthritis, right shoulder, assigning a 10 percent disability rating, effective August 8, 2001; the grant of service connection for tension headaches, assigning a noncompensable disability rating, effective August 8, 2001; the grant of a 10 percent disability rating to service-connected exostosis, left knee, effective August 8, 2001; and, the denial of entitlement to an increased rating for service-connected post-operative residuals, balanitis/parabalanitis, traumatic phimosis, with circumcision scar. CONCLUSIONS OF LAW 1. Due to the lack of finality of the February 2003 rating decision, the veteran's claim of clear and unmistakable error in the February 2003 rating decision is dismissed for lack of jurisdiction. 38 C.F.R. § 3.104 (2006). 2. The veteran's claim of clear and unmistakable error in the January 1985 and May 1985 rating decisions, pertaining to the issue of entitlement to an increased rating for urethral stricture, is dismissed for lack of jurisdiction. 38 C.F.R. § 20.1104 (2006). 3. The veteran's claim of clear and unmistakable error in the April 1988, June 1988, July 1989, and April 1990 rating decisions, is dismissed for lack of jurisdiction. 38 C.F.R. § 20.1104 (2006). 4. The veteran's claim of clear and unmistakable error in the May 1971 rating decision, pertaining to the issues of entitlement to service connection for genitourinary condition, and left knee disability, is rendered moot, per the November 1972 rating determination granting such claims. 38 U.S.C.A. § 7105(d)(5) (West 2002). 5. The veteran has not submitted a valid claim of CUE with regard to the November 1972 rating decision which granted entitlement to service connection for balanitis, assigning a noncompensable disability rating and granted entitlement to service connection for left knee disability, assigning a noncompensable disability rating, both effective February 1971, and the claim is dismissed without prejudice to refiling. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2006). 6. The veteran has not submitted a valid claim of CUE with regard to the November 1978 rating decision which granted entitlement to service connection for urethral stricture, assigning a noncompensable disability rating, effective December 3, 1977, and the claim is dismissed without prejudice to refiling. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2006). 7. The veteran has not submitted a valid claim of CUE with regard to the October 2002 rating decision which granted a 40 percent disability rating for service-connected urethral stricture, effective September 15, 2000, and assigned a 20 percent disability rating, effective April 1, 2001; granted service connection for traumatic arthritis, right shoulder, assigning a 10 percent disability rating, effective August 8, 2001; granted service connection for tension headaches, assigning a noncompensable disability rating, effective August 8, 2001; granted a 10 percent disability rating to service-connected exostosis, left knee, effective August 8, 2001; and, denied entitlement to an increased rating for service-connected post-operative residuals, balanitis/parabalanitis, traumatic phimosis, with circumcision scar, and is dismissed without prejudice to refiling. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a) (2006) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to the issue of clear and unmistakable error. The Court has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). Lack of jurisdiction The appellant challenges rating decisions of May 1971, November 1972, November 1978, January 1985, May 1985, April 1988, June 1988, July 1989, April 1990 (issued to the veteran in May 1990), October 2002, and February 2003 on the grounds of clear and unmistakable error. Having carefully reviewed the appellant's contentions in light of the applicable law and the record, the Board has concluded that it is without jurisdiction to decide the appellant's claim with regard to a portion of the January 1985 rating decision, and the rating decisions issued in May 1985, April 1988, June 1988, July 1989, April 1990, and February 2003. Under applicable laws and regulations, RO decisions that are final and binding will be accepted as correct in the absence of clear and unmistakable error. See 38 C.F.R. § 3.105(a) (2001); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Relevant to the appellant's claim, the essence of a claim of clear and unmistakable error is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). Initially, the Board notes that the February 2003 rating decision is the subject of the current appeal, thus such rating determination is not final as defined under the applicable regulations. See 38 C.F.R. §§ 3.104, 3.105. Thus, the Board does not have jurisdiction to address CUE in the February 2003 rating determination. The appellant's claim that the February 2003 rating decision is clearly and unmistakably erroneous is dismissed for lack of jurisdiction. It has been held that when the Board affirms a decision of the RO, that decision is subsumed by the final appellate decision. The RO decision that has been affirmed by the Board becomes "part and parcel" of the final Board decision. See 38 C.F.R. § 20.1104; Smith v. Brown, 35 F. 3d 1516 (Fed. Cir. 1994); Mykles v. Brown, 7 Vet. App. 372 (1995); Olson v. Brown, 5 Vet. App. 430 (1993 (when a determination of the AOJ is affirmed by the BVA, the determination is subsumed by the final appellate decision); See also VAOPGCPREC 14-95. Thus, an appellant may not properly raise a claim of CUE with respect to a RO decision that was the subject of a notice of disagreement leading to a Board decision. The Board decision of June 1986 subsumed the rating decisions of January and May 1985, with regard to the issue of entitlement to an increased disability rating for service-connected urethral stricture. The portion of the rating decision that denied entitlement to service connection for residuals of Agent Orange exposure was not subsumed by the Board decision, as this issue was not appealed, nor addressed by the Board. The Board decision of December 1990 subsumed the rating decisions of April 1988, June 1988, July 1989, and April 1990. Olson, supra; Manning v. Principi, 16 Vet. App. 534, 540-41 (2002). Should the appellant desire to seek review of the Board decisions dated in June 1986 and December 1990, he must do so by filing a motion with the Board, using correct procedure. See 38 C.F.R. § 20.1404. The appellant's claim that rating decisions of January 1985 (pertaining to the increased rating claim), May 1985, April 1988, June 1988, July 1989, April 1990, and February 2003 were clearly and unmistakably erroneous are dismissed for lack of jurisdiction. Dismissal The decision of a duly constituted rating agency . . . will be final and binding . . . as to conclusions based on evidence on file at that time. 38 C.F.R. § 3.104(a). A previous RO determination that was final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. See 38 C.F.R. § 3.105(a). The essence of a claim of CUE is that it is a collateral attack on an otherwise final rating decision by a VA Regional Office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity which attaches to that final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. See Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed upon a claimant who seeks to establish prospective entitlement to VA benefits. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991); see also Berger v. Brown, 10 Vet. App. 166, 169 (1997) (recognizing a claimant's "extra-heavy burden" of persuasion before the Court in a claim of CUE). In asserting a claim of CUE, the claimant must show that: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting Russell v. Principi, 3 Vet. App. 310, 313-314 (1992) (en banc). The Board wishes to emphasize that the Court has consistently stressed the rigorous nature of the concept of CUE. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). The Court has further elaborated that CUE is a very specific and rare kind of error of fact or law that compels the conclusion, without doubt, that but for the error, the result would have been manifestly different. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Final decisions are accorded a presumption of validity, and to simply claim CUE on the basis that a previous adjudication had improperly weighed and evaluated evidence can never rise to the stringent definition of CUE. Luallen v. Brown, 8 Vet. App. 92, 94 (1996); Fugo, 6 Vet. App. at 44 (citing Russell, 3 Vet. App. at 314). Similarly, broad brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of clear and unmistakable error. Id. Additionally, the Court held that VA's breach of its duty to assist cannot form a basis for a claim of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Thus, if a claimant wishes to raise CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo, 6 Vet. App. at 44. In light of the Board's finding of lack of jurisdiction over a portion of the January 1985 rating decision, and lack of jurisdiction of the May 1985, April 1988, June 1988, July 1989, April 1990, and February 2003 rating decisions, the Board must therefore determine whether a valid claim of CUE has been raised with regard to the other rating decisions of record. A May 1971 rating decision denied entitlement to service connection for a genitourinary condition; skin disease in feet; lymph node infection; left knee disability; and, right shoulder disability. A November 1972 rating decision granted entitlement to service connection for balanitis (a genitourinary condition), assigning a noncompensable disability rating effective February 1971, and granted entitlement to service connection for a left knee disability, assigning a noncompensable disability rating, effective February 1971. The effective date assigned was the date of receipt of his initial claim of service connection, thus the November 1972 rating decision essentially cured any deficiencies in the May 1971 decision with regard to the specific issues of entitlement to service connection. Thus, any CUE claims with regard to the May 1971 denial of service connection for genitourinary condition and left knee disability is rendered moot. The November 1972 rating decision also denied entitlement to service connection for bilateral shoulder disability. A November 1978 rating decision granted service connection for urethral stricture, assigning a noncompensable disability rating effective December 3, 1977. A January 1985 rating decision denied entitlement to service connection for residuals of Agent Orange exposure. An October 2002 rating decision granted a 40 percent disability rating for service-connected urethral stricture, effective September 15, 2000, and assigned a 20 percent disability rating, effective April 1, 2001. The rating decision granted service connection for traumatic arthritis, right shoulder, assigning a 10 percent disability rating, and granted service connection for tension headaches, assigning a noncompensable disability rating, both effective August 8, 2001. The rating decision granted a 10 percent disability rating for service-connected exostosis, left knee, effective August 8, 2001. The rating decision denied entitlement to an increased rating for service-connected post-operative residuals, balanitis/parabalanitis, traumatic phimosis, with circumcision scar. The rating decision denied entitlement to service connection for pharyngitis; lymphangitis; dental condition; tinea barbae; bee sting; and, sores/boils on right arm. The issue of whether a valid claim of CUE has been raised and, if so, whether CUE is established, is legal in nature, and its outcome is determined by the interpretation and application of the law and regulations rather than by consideration of conflicting or disputed evidence. The Board has thoroughly reviewed the multiple submissions by the veteran in which he consistently uses the terms "clear and unmistakable error" to describe prior actions by the RO. Such thorough review, however, has only revealed one clear claim of error in the previous rating decisions - which the RO failed to consider his service as a combat veteran. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304(d). As will be discussed in the Remand below, however, the current evidence of record does not contain sufficient information to determine whether the veteran served in combat during his period of service. The Board notes that the veteran's status as a combat veteran, however, is only relevant as to the issues of service connection which have been denied on the merits to include: skin disease in feet; lymph node infection; right shoulder disability; bilateral shoulder disability; residuals of Agent Orange; pharyngitis; lymphangitis; dental condition; tinea barbae; bee sting; and, sores/boils on right arm. Any such combat status, however, is not relevant and rendered moot with regard to increased rating issues, or entitlement to earlier effective dates. (The Board also notes for the record, that it is unable to decipher any other errors pertaining to the denied service connection issues, thus depending on the outcome of the further development ordered in the Remand below, at this juncture there is no other basis for a clear and unmistakable error claim.) Otherwise, the Board is unable to decipher the errors that the veteran is claiming in previous rating decisions pertaining to any other contentions regarding the assignment of disability ratings and effective dates assigned to his service-connected disabilities. The Board notes that the veteran must plead with specificity any errors in which he contends were made in previous rating decisions. A motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the RO decision, the legal or factual basis for such allegations, and an explanation of why the result would have been manifestly different but for the alleged error. Non- specific allegations of failure to follow regulations or failure to give due process, or any other general, non- specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with these requirements shall be dismissed without prejudice to refiling under this subpart. 38 C.F.R. § 20.1404(b); see also Simmons v. Principi, 17 Vet. App. 104 (2003), (which extended 38 C.F.R. § 20.1404 to RO rating decisions challenged on the grounds of clear and unmistakable error.) Submitting questions as to why a claim was denied, or why a specific rating was not assigned, does not form the basis for a clear and unmistakable claim. Moreover, generally stating that the RO failed to properly apply the United States Code and Code of Federal Regulations does not form the basis for a clear and unmistakable claim. The Board reiterates that the veteran must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the RO decision, the legal or factual basis for such allegations, and an explanation of why the result would have been manifestly different but for the alleged error. In short, other than his claimed status as a combat veteran pertaining to his previous service connection claims, the veteran has failed to clearly and specifically set forth alleged errors of fact or law in the November 1972 rating decision which granted entitlement to service connection for balanitis and left knee disability; the November 1978 rating decision which granted service connection for urethral stricture, and the October 2002 rating decision which granted a 40 percent disability rating for service-connected urethral stricture, effective September 15, 2000, and assigned a 20 percent disability rating, effective April 1, 2001; granted service connection for traumatic arthritis, right shoulder, assigning a 10 percent disability rating, effective August 8, 2001; granted service connection for tension headaches, assigning a noncompensable disability rating, both effective August 8, 2001; granted a 10 percent disability rating for service-connected exostosis, left knee, effective August 8, 2001; and denied entitlement to an increased rating for service-connected post-operative residuals, balanitis/parabalanitis, traumatic phimosis, with circumcision scar. With regard to these issues, the veteran has failed to set forth the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. The Board must emphasize that, in a CUE motion, it is incumbent upon the moving party to set forth clearly and specifically the alleged CUE, and non-specific allegations of a failure to follow regulations or failure to give due process, or any other general non-specific allegations of error, are insufficient to satisfy this requirement. See 38 C.F.R. § 20.1403. Accordingly, in view of the fact that the veteran has failed to comply with 38 C.F.R. § 20.1404(b), the Board has no alternative but to dismiss his motion for CUE without prejudice. ORDER The appellant's claim that the January 1985 and May 1985 rating decisions, pertaining to the issue of entitlement to an increased rating for urethral stricture, were clearly and unmistakably erroneous is dismissed for lack of jurisdiction. The appellant's claim that rating decisions of April 1988, June 1988, July 1989, April 1990, and February 2003, were clearly and unmistakably erroneous is dismissed for lack of jurisdiction. The appellant's claim that the portion of the May 1971 rating decision, which denied entitlement to service connection for genitourinary condition and left knee disability, was clearly and unmistakably erroneous is dismissed as moot. The appellant's claim that the portion of the November 1972 rating decision, which granted service connection for balanitis and left knee disability, was clearly and unmistakably erroneous is dismissed with prejudice. The appellant's claim that the portion of the November 1978 rating decision, which granted entitlement to urethral stricture, was clearly and unmistakably erroneous is dismissed with prejudice. The appellant's claim that the portion of the October 2002 rating decision, which granted a 40 percent disability rating for service-connected urethral stricture, effective September 15, 2000, and assigned a 20 percent disability rating, effective April 1, 2001; granted service connection for traumatic arthritis, right shoulder, assigning a 10 percent disability rating, effective August 8, 2001; granted service connection for tension headaches, assigning a noncompensable disability rating, both effective August 8, 2001; granted a 10 percent disability rating for service-connected exostosis, left knee, effective August 8, 2001; and denied entitlement to an increased rating for service-connected post-operative residuals, balanitis/parabalanitis, traumatic phimosis, with circumcision scar, was clearly and unmistakably erroneous is dismissed with prejudice. REMAND As discussed hereinabove, the veteran has claimed that he participated in combat during his period of service. The veteran's DD Form 214 of record does not contain any verification of such combat service. The RO should attempt to obtain the veteran's service personnel records, and contact the National Personnel Records Center (NPRC) in an attempt to verify whether the veteran participated in combat during his period of service from January 1964 to January 1966. Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain the veteran's service personnel records. If such efforts prove unsuccessful, documentation to that effect should be added to the claims file. 2. The RO should contact the NPRC in an attempt to verify whether the veteran participated in combat during his period of service from January 1964 to January 1966. 3. If such combat status is confirmed, the RO should readjudicate in consideration of 38 C.F.R. § 3.304(d), the veteran's claims of CUE pertaining to whether a May 1971 rating decision which denied entitlement to service connection for a skin disease in feet; lymph node infection; and, right shoulder disability, contained CUE; whether a November 1972 rating decision which denied entitlement to service connection for bilateral shoulder disability, contained CUE; whether a January 1985 rating decision which denied entitlement to service connection for residuals of Agent Orange exposure, contained CUE; whether an October 2002 rating decision which denied entitlement to service connection for pharyngitis; lymphangitis; dental condition; tinea barbae; bee sting; and, sores/boils on right arm, contained CUE. Otherwise, the RO should readjudicate the veteran's claims of CUE under the applicable provisions. If the determination of these claims remains unfavorable to the veteran, the RO must issue a supplemental statement of the case and provide him an opportunity to respond before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (2006). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs