Citation Nr: 1147133 Decision Date: 12/28/11 Archive Date: 01/09/12 DOCKET NO. 07-26 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 3. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a left elbow injury. 4. Entitlement to a rating higher than 40 percent for degenerative arthritis of the lumbar spine. 5. Entitlement to a rating higher than 20 percent for degenerative arthritis of the cervical spine. 6. Entitlement to a compensable rating for prostate cancer. 7. Entitlement to an initial compensable rating for gastroesophageal reflux disease, claimed as hiatal hernia. 8. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to August 1972. This case is before the Board of Veterans' Appeals (Board) from rating decisions dated October 2006, November 2008, September 2010, February 2010, and April 2011, of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that denied the benefits sought on appeal. The Veteran testified at a hearing before the undersigned in July 2008. In a May 2009 decision, the Board found that new and material evidence had not been presented to reopen the Veteran's claim for service connection for PTSD. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims. In February 2011, a Memorandum Decision was issued and the Court vacated the Board's decision and remanded the claim to the Board for readjudication consistent with its decision. In September 2010, the Veteran perfected an appeal with respect to his application to reopen the claim for service connection for a residuals of a left elbow injury. Therefore, the Board has jurisdiction of that issue. Additional evidence was received after the issuance of the statement of the case in September 2010, without a waiver of the right to have the additional evidence reviewed by the RO. However, as the additional evidence does not have a bearing on issue of whether new and material evidence has been received to reopen the claim for service connection for residuals of a left elbow injury, a referral of the additional evidence to the RO for initial consideration is not necessary. 38 C.F.R. § 20.1304(c) (2011). The claim of service connection for ischemic heart disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. 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). The claims for increased ratings for prostate cancer, gastroesophageal reflux disease, degenerative arthritis of the lumbar spine, and degenerative arthritis of the cervical spine, and the claim for entitlement to a TDIU, are REMANDED to the RO via the Appeals Management Center, in Washington, D.C. FINDINGS OF FACT 1. An April 1981 rating decision denied service connection for residuals of a left elbow injury. The Veteran did not appeal that decision. 2. The additional evidence presented since the April 1981 rating decision that denied service connection for a left elbow disability is cumulative of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3. A May 1996 rating decision denied service connection for PTSD. The Veteran did not appeal that decision. 4. The evidence received since the May 1996 rating decision that denied service connection for PTSD is new in that it is not cumulative and was not previously considered by decision makers. The evidence is also material because it raises a reasonable possibility of substantiating the claim for service connection. 5. The Veteran's PTSD is at least as likely as not the result of his period of active service. CONCLUSIONS OF LAW 1. The April 1981 rating decision that denied service connection for a left elbow condition is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. § 3.104 (2011). 2. New and material evidence has not been presented to reopen the claim of service connection for residuals of a left elbow injury. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011). 3. The May 1996 rating decision that denied service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. § 3.104 (2011). 4. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011). 5. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to notify and to assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In a new and material evidence claim, VA must provide notice to the claimant of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefits sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in January 2008 and August 2008. That correspondence also satisfied the notice requirements. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the September 2010 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim for service connection for residuals of a left elbow injury, the only matter herein denied. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence Claim for Residuals of a Left Elbow Injury An April 1981 rating decision denied service connection for a left elbow condition. The RO concluded that there was no evidence of residuals of an in-service injury to the left elbow. That decision became final because the appellant failed to appeal the decision within the prescribed time. 38 U.S.C.A. § 7105 (West 2011). In the November 2008 rating decision on appeal, the RO reopened and denied the Veteran's claim for service connection for residuals of a left injury on the merits. However, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. If the Board finds that no such evidence has been offered, that is where the analysis must end. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The claim for service connection for residuals of a left elbow injury may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The application to reopen the claim was received in July 2007. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before VA at the time of the prior final decision in April 1981 consisted of the Veteran's service medical records, which documented an injury to the left elbow in June 1954. X-rays were normal. In February 1969, the Veteran was treated for a sprain of the left elbow and wrist. X-rays were negative. The Veteran's retirement examination in March 1972 noted a history of an injury to the left elbow. An examination report in March 1981 that recorded a history of an in-service injury to the left elbow with swelling. On examination the examiner noted normal range of motion in the left elbow, with no evidence of redness, swelling, or edema. X-rays of the left elbow revealed no abnormalities. The examiner opined that the Veteran probably had traumatic olecranon bursitis of the left elbow following the injury, but it had since resolved. Newly received evidence includes VA and private treatment records, and a VA examination report. The evidence also contains statements from the Veteran stating that his left elbow condition is etiologically related to an injury incurred in service. Those contentions were considered at the time of the previous final denial. Cumulative evidence does not meet the regulatory definition of new and material evidence. 38 C.F.R. § 3.156 (2011). In a September 2007 clinical treatment note, a private physician noted the Veteran's subjective complaints of pain in the left olecranon tip and some nodularity over the area. The Veteran related a history of an injury to the left elbow in 1957 or 1958. X-rays revealed mild degenerative changes in the elbow. That evidence, while new, is not material because it does not show that the Veteran has been diagnosed with any residuals of an in-service left elbow injury or any current disability of the left elbow that is related to service. Therefore, the evidence does not create a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156 (2011). On VA examination in September 2010, the Veteran reported injuring his left elbow when he fell off a ladder. His elbow remained intermittently symptomatic throughout the years. He was diagnosed with degenerative joint disease and bursitis in 2008. The examiner noted limitation of functional impairment on repetitive motion in both elbows. X-rays revealed degenerative joint disease of the elbows bilaterally, without significant change in one elbow compared to the other. Following an examination of the Veteran, the examiner diagnosed degenerative joint disease of the left elbow. The examiner opined that that the left elbow condition was not related to service. The examiner noted the Veteran's in-service complaints of pain and swelling in the elbow, with a soft tissue injury described as a contusion, and in-service X-rays that revealed no abnormalities. The service medical records showed that on separation from service his elbow was normal and he had no sequelae. Accordingly, the record suggested that the in-service complaints were associated with an isolated event that resolved by the time the Veteran separated from service. Post-service, there were no left elbow complaints noted until 2008, suggesting that the condition was more likely related to aging and occupational stresses. Current X-rays revealed degenerative changes in both elbows, consistent with aging. The evidence was indicative of a condition of recent onset as opposed to a chronic condition following an injury years earlier. The examiner concluded that the Veteran's left elbow injury was not related to the soft tissue injury in the military. The Board finds that the VA examiner's opinion opposes, rather than supports, the claim, and therefore does not raise reasonable possibility of substantiating the claim and is not new and material. 38 C.F.R. § 3.156 (2011). In sum, while the evidence currently shows degenerative changes in the left elbow, the evidence does not show that the Veteran has been diagnosed with any residuals of an in-service left elbow injury or any current disability of the left elbow that is related to service, to include degenerative joint disease of the left elbow. In fact, the competent medical evidence of record is against a finding that the Veteran currently suffers from residuals of a left elbow injury incurred during service. Therefore, evidence submitted since the previous denial of the claim does not raise a reasonable possibility of substantiating the claim and therefore the new evidence is not material. 38 C.F.R. § 3.156 (2011). Accordingly, the Board finds that new and material evidence has not been submitted and the claim for service connection residuals of a left elbow injury is not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). New and Material Evidence Claim for service Connection for PTSD In a September 1995 decision, the RO denied the Veteran's claim for service connection for PTSD. The RO declined to reopen the Veteran's claim in May 1996, October 2006, and most recently, in December 2006. By an August 2007 statement of the case, the RO reopened the Veteran's claim for service connection for PTSD and denied the claim on the merits. While the RO found that new and material evidence had been submitted to reopen the Veteran's claim for service connection for PTSD, the Board must still consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In a decision dated in May 1996, the RO denied the Veteran's claim for service connection for PTSD. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2011). Thus, the May 1996 RO decision became final because the Veteran did not file a timely appeal. The Veteran filed this application to reopen his claim in September 2006. The evidence before VA at the time of the prior final denial consisted of the Veteran's service medical records, post-service VA medical records, and the Veteran's statements regarding psychiatric symptoms and in-service stressors. Also of record was a VA psychiatric examination report that contained a diagnosis of PTSD associated with the reported in-service stressors. The RO denied the claim because it was unable to confirm the occurrence of the Veteran's claimed stressors, nor was there any evidence of a nexus between the diagnosis of PTSD and a verified in-service stressor. In October 2006, the RO further noted that the Veteran's personnel records did not show service in the Republic of Vietnam during the Vietnam War. Newly received evidence includes VA medical records starting in December 2005, that show intermittent treatment for PTSD related to traumatic experiences during the war in Vietnam, and depression. In an October 2006 letter, a VA physician stated that the Veteran had reported several stressors that triggered extreme emotional distress upon recall, including witnessing a serious injury to a soldier when an unloaded mortar exploded after being dropped, remembering that his friend Crabtree had died in a plane crash in a flight that the Veteran was supposed to have taken, and seeing blood dripping out the back door of planes while he helped to unload bodies. The Veteran also submitted personnel records that showed service in the Republic of Vietnam in 1968, to include a travel voucher showing that he arrived in Cam Ranh Bay, Vietnam, in March 1968, and departed approximately one month later. Service personnel records show that he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. In statements and testimony, the Veteran reported witnessing two Army troops unloading mortar shells when one mortar shell was dropped, shredding a soldier's lower body. He reported watching the soldier bleed out profusely after he helped to place him on a stretcher and tie him down. The Veteran reported being in a war zone and coming under enemy fire while stationed in Vietnam. He stated that there was a fire fight in Da Nang with the Viet Cong and that he had helped to transport the dead bodies via helicopter to be sent back to the United States. He also testified that he had acted as senior controller and aircraft scheduler, which required him to send crews out into combat flight. He reported that when the crews that he had sent out did not return, he felt guilty that he had sent them to their deaths. He stated that he currently suffered from nightmares, sleep difficulty, flashbacks, and anger issues. The Veteran provided stressor information to support his claim for service connection for PTSD. He asserted that he unloaded bodies from an aircraft due to a helicopter crash on October 8, 1963, in Da Nang, Vietnam. He submitted a list from the United States Marine Corps /Combat Helicopter Association of the men who were killed in a mid-air collision on October 8, 1963, and also provided an article describing the helicopter crash that occurred on October 8, 1963. In subsequent statements in 2010 the Veteran also described fear of hostile military activity while stationed in Vietnam. The Veteran also submitted witness statements from fellow service members regarding service in Vietnam during the Vietnam War. The Board finds that newly received evidence that shows that the Veteran served in Vietnam during the Vietnam War, and the Veteran's testimony that he came under enemy fire while stationed in Vietnam, along with the diagnosis of PTSD related to traumatic experiences during the war in Vietnam creates a reasonable possibility of allowance and is sufficient to reopen the claim. Evidence of service in Vietnam during 1968 was not previously considered by agency decision makers, is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and together with previously considered evidence of record, raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2011). Those reports and diagnoses are presumed credible for the purpose of determining whether the evidence is material. Accordingly, the Board finds that new and material evidence has been submitted. The claim for service connection for an acquired psychiatric disorder, to include PTSD, is reopened. The Board will now address the merits of the underlying service connection claim. Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) (2011). Generally, to be entitled to service connection for PTSD, the record must include the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2010); Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second element, evidence that an in-service stressor actually occurred, the necessary evidence varies depending on whether it can be determined that the Veteran engaged in combat with the enemy. If it is established through military citation or other evidence that a Veteran engaged in combat with the enemy, and the claimed stressor is related to such combat, then, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone is sufficient evidence as to the reported stressor's actual occurrence. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. 3.304(f) (2011). Prior to July 13, 2010, VA regulations generally provided that, if it was determined that the claimed stressor was not related to combat (and there was no in-service diagnosis of PTSD), then the Veteran's lay testimony alone would not be enough to establish the occurrence of the stressor. Daye v. Nicholson, 20 Vet. App. 512 (2006). In such cases, service records or other credible statements were required to corroborate the occurrence of the claimed stressor. The Veteran's actual presence during the stressor event did not have to be corroborated. Rather, evidence that the Veteran was assigned to and stationed with a unit that was present while the reported event occurred strongly suggested actual exposure to the stressor event. Cohen v. Brown, 10 Vet. App. 128 (1997); Pentecost v. Principi, 16 Vet. App. 124 (2002). Effective July 13, 2010, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f) (2011); 75 Fed. Reg. 39843-39852 (July 13, 2010). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he currently suffers from an acquired psychiatric disorder, to include PTSD, as a result of incidents which occurred while on active duty, to include while stationed in Vietnam. The Veteran's personnel records show that he served in Vietnam in 1963 and from March 1968 to April 1968. He was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. The Veteran's service separation form shows that his Military Operational Specialty Code (MOS) was Tech Sergeant. The service medical records contain no finding, history, or diagnosis of any psychiatric disorder. After service, VA treatment records show a diagnosis and treatment for PTSD since 1994. Therefore, the service medical records do not show a diagnosis of PTSD during service, and the evidence of record does not establish that he engaged in combat with the enemy as contemplated by 38 U.S.C.A. § 1154(b). However, the Board finds that the Veteran's reported stressors relate to a fear of hostile military activity, as they involved threatened death or serious injury to himself and others, and the Veteran's response included fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2011). The reported stressors include reports of fear of imminent danger from coming under enemy fire while stationed in Vietnam. Further, the incidents are consistent with the places, types, and circumstances of the Veteran's service. The evidence of record shows that he served in Cam Ranh Bay, Vietnam, during the Vietnam War, from March 28, 1968, to April 21, 1968. As also required under the currently applicable regulations, the Veteran has a current diagnosis of PTSD that has been linked to the reported stressors, as determined by a VA psychiatrist and VA psychologists. The sufficiency of a stressor for a PTSD diagnosis is a medical determination and, where a current diagnosis exists, the sufficiency of the claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128 (1997). Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence of record shows a current PTSD diagnosis that has been linked to his reported in-service stressors, and based on a fear of hostile military action, by a VA psychologist. Therefore, the Board finds that service connection is warranted for PTSD. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has not been presented, the claim for service connection for residuals of a left elbow injury is not reopened, and the appeal is denied. New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, is reopened. Entitlement to service connection for posttraumatic stress disorder is granted. REMAND Although the Board regrets the additional delay, further development is needed prior to the disposition of the Veteran's claims. A February 2010 rating decision denied entitlement to a TDIU. That decision also granted increased ratings of 40 percent for degenerative arthritis of the lumbar spine, and 20 percent for degenerative arthritis of the cervical spine, effective July 13, 2009. In March 2010, the Veteran submitted a notice of disagreement (NOD) with the denial of a TDIU. Additionally, the Veteran appealed for higher disability ratings for the service-connected lumbar and cervical spine disabilities, asserting that he should be assigned an additional rating of 20 percent for arthritis of the spine. A September 2010 rating decision granted service connection for gastroesophageal reflux disease, claimed as hiatal hernia, and assigned a 0 percent disability rating, effective July 11, 2007. In October 2010, the Veteran submitted a timely NOD with the assigned disability rating. An April 2011 rating decision granted service connection for prostate cancer and assigned a disability rating of 100 percent effective March 16, 2010, and a 0 percent rating effective January 1, 2011. In June 2011 the Veteran submitted a NOD with the assignment of a 0 percent disability rating for prostate cancer effective January 1, 2011, asserting that his condition remained symptomatic and he was entitled to a rating of 40 percent. The RO has not issued the Veteran a statement of the case with respect to those issues. Therefore, the Board has no discretion and is obliged to remand the claims for increased ratings for prostate cancer, gastroesophageal reflux disease, degenerative arthritis of the lumbar spine, and degenerative arthritis of the cervical spine, and the claim for entitlement to a TDIU. Those claims are remanded to the RO for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: This case has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested. Issue a statement of the case which addresses the issue of entitlement to a TDIU, and the claims for increased ratings for prostate cancer, gastroesophageal reflux disease, degenerative arthritis of the lumbar spine, and degenerative arthritis of the cervical spine. Inform the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires appellate review of those issues. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs