Citation Nr: 1123346 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 10-31 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for ulcerative colitis with anemia. 2. Entitlement to service connection for insomnia. 2. Entitlement to a total rating based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Shannon L. Brewer, Attorney ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from February 2006 to December 2008, after which he was placed on the Temporary Disabled Retirement List (TDRL), on which he currently remains. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for ulcerative colitis with anemia and awarded an initial 30 percent disability rating and denied service connection for insomnia. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Therefore, the claim for a TDIU is considered part of the increased rating claim on appeal. The matters of entitlement to service connection for insomnia and a TDIU 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. FINDINGS OF FACT 1. The probative evidence of record demonstrates that the Veteran's service-connected ulcerative colitis is treated with Remicade (infliximab) infusions every 6 to 8 weeks; he took daily Asacol and is periodically on tapered steroids; he does not exhibit marked malnutrition, or any sign of serious complications such as liver abscess; any anemia is mild at worst; and, while he has overall severe impairment with numerous episodes during the year with fair health during whatever remissions he may have, more often than not, he does not have overall pronounced impairment. While he has had hospitalizations in the past, he now only has emergency room visits without frequent or sustained hospitalizations required. 2. The Veteran's severe ulcerative colitis may be refractory to treatment, has deteriorated in some aspects and it has been suggested that his last option is surgery but, for the most part, his symptoms have been at a relatively static level of no more than severe impairment since service separation. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the schedular criteria for an initial 60 percent rating for ulcerative colitis with anemia are met since he filed his initial claim for benefits. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.114, Diagnostic Code 7323 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist In a January 2009 letter, the agency of original jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The AOJ notified the Veteran of information and evidence necessary to substantiate his claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the January 2009 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records have been associated with the claims file. All reasonably identified and available VA and non-VA medical records have been secured. The Veteran was also afforded a VA examination in June 2009 in conjunction with his claim and the examination report is of record. The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis The Board has reviewed all the evidence in the Veteran's claims file that includes his written contentions, service treatment and personnel records, and VA medical records and examination reports, dated from 2007 to 2011. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran contends that his service-connected ulcerative colitis with anemia warrants a higher initial rating. In his June 2010 written statement, the Veteran explained that he suffers from five to nine daily attacks of abdominal pain and fecal incontinence. He was unable to withstand the rigors of a normal work day, had daily nausea, tired easily, and experienced dizziness and shortness of breath. The Veteran asserts that his symtoms are more severe than are represented by the currently assigned initial 30 percent rating. The present appeal involves the Veteran's claim that the severity of his service-connected ulcerative colitis disability warrants a higher initial disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2010). Throughout the rating period on appeal, the Veteran has been assigned a 30 percent evaluation for his service-connected ulcerative colitis disability pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7323. Under Diagnostic Code 7323, a 30 percent rating is assigned for ulcerative colitis productive of moderately severe symptoms with frequent exacerbations. Id. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. Id. Finally, a 100 percent is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. Id. Ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, are not to be combined with each other. Instead, a single evaluation will be assigned under the diagnostic code that reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Weight loss is a criterion for a disability rating higher than currently assigned for the Veteran's gastrointestinal disorder under Diagnostic Codes 7304 and 7346. For purposes of evaluating conditions in Section 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained over three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. See 38 C.F.R. § 4.112 (2010). Factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also 38 C.F.R. § 3.102. Service treatment records, dated from August to October 2007, show that, in August 2007, the Veteran was seen with a 2 week history of diarrhea and weighed 150 pounds. He experienced abdominal pain, bloody diarrhea, and significant fatigue and was diagnosed with ulcerative colitis that was considered unresponsive to outpatient therapies that included Asacol, prednisone, and iron. Private medical records indicate that, in October 2007, the Veteran was 5 feet 7 inches tall, and weighed 129.5 (October 1st) and 135 pounds (October 25th); in November 2007, he weighed 127.5 pounds A January 2008 service clinical record indicates that the Veteran had insomnia that the examiner attributed to his taking Prednisone. The Veteran was privately hospitalized from January 28 to February 1, 2008 for an acute flare of his symtoms. He weighed 141 pounds at admission. His treatment included intravenous (IV) Solu-Medrol and he was discharged on Asacol tablets and prednisone. A February 13, 2008 private medical record indicates that the Veteran weighed 138 pounds. A February 29, 2008 private medical record shows that the Veteran was symptomatic since his initial diagnosis in October 2007, required numerous hospitalizations with recurrent flares, and was steroid dependent. Moderate pancolonic ulcerative colitis was shown on his last colonoscopy in February 2008. It was noted that, due to the severity of his disease and the difficult management despite chronic steroids, he was scheduled to start Remicade the following week. If that treatment was ineffective, a colectomy was the next step. Further, the record reveals that the Veteran stated that, in the past he had 10-15 loose stools daily. He currently reported that his bowel movements were not as bad and he had 6 to 8 loose and form combination stools daily. The Veteran said that approximately every three days, he had bowel movements that woke him up at night. He had not had any bright red blood per his rectum since seen in the emergency room approximately two weeks earlier. He denied any nausea, vomiting, heartburn, dysphagia, or regurgitation. He had lower abdominal pain with bowel movements. He used Oxycodone as needed and said Lomotil was ineffective in slowing his stool frequency. He also had chest and shoulder pains approximately once or twice a week. Objectively, the Veteran weighed 131 pounds. His bowel sounds were normal and there was no abdominal abnormality on palpation and no tenderness. The assessment was that the ulcerative colitis improved since the Veteran's recent visit to the emergency room but he remained symptomatic. A March 2008 service clinical record indicates that the Veteran was unable to stray far from his barracks due to loose stools and cramping. He indicated that he had difficulty making it safely from the bed to the bathroom without losing bowel control. When privately seen on April 1, 2008, it was noted that the Veteran was on Remicade infusions every 4 weeks. He took Asacol tablets and Prednisone and felt his symtoms were slowly improving. He had approximately 4 to 6 semi-formed stools daily and continued to have some urgency. He denied rectal blood, abdominal pain, fevers, or chills, but still had shoulder and arm pain. The Veteran weighed 138 pounds. When seen on April 29, 2008, he was having Remicade infusion every 8 weeks and completed his first 3 doses of Remicade without complications. The Veteran had about 2 to 3 semi-solid stools daily and his urgency was better but not completely resolved. He denied any nocturnal bowel movements or problems with fecal incontinence and denied abdominal pain and rectal bleeding. He felt much better overall but was not at baseline. When seen in May 2008, he weighed 142 pounds. According to a September 2008 Medical Evaluation Board (MEB) report, the Veteran had ulcerative colitis that caused significant chronic abdominal pain, anemia secondary to blood loss from ulcerative colitis, and recurrent daily headaches secondary to prednisone treatment. Treatment included Remicade that improved his symtoms but did not resolve them. It was noted that the Veteran responded poorly to medical treatment and was likely to require complicated medical support at least intermittently in the future. The Veteran was found unable to perform his duties due to his symptomatic ulcerative colitis that caused bloody diarrhea and anemia that caused fatigue and decreased tolerance, and required treatment with immune-modulator medications and long-term steroid treatment. He also had headaches. An October 2008 service clinical record indicates that the Veteran weighed 145 pounds. The Veteran was privately hospitalized overnight for treatment of his ulcerative colitis in December 2008. In June 2009, the Veteran underwent VA examination. According to the examination report, the examiner reviewed the Veteran's medical records. It was noted that the Veteran was diagnosed with ulcerative colitis in 2007 and hospitalized for treatment of a flare in January 2008. He had one blood transfusion due to anemia. He was hospitalized for another flare in December 2008 and was presently treated with Remicaide and iron supplements for anemia noted in 2007. The Veteran's course since onset was intermittent with remissions and he had a fair response to treatment. Further, the Veteran complained of nausea but not vomiting, constipation, diarrhea, heartburn, and severe fecal incontinence. He also had melena, most recently one and one half months earlier that was mild. He had weekly abdominal pain. Objectively, the Veteran weighed 140 pounds that was noted to be a 20 percent weight loss compared to baseline. Liver and spleen were normal and there was no abdominal guarding. There were no periods of incapacitation. The Veteran was not currently employed and indicated that he was unable to work due to his ulcerative colitis. The examiner said that the Veteran's ulcerative colitis had a severe effect on the Veteran's usual daily activities. According to the VA examiner, the Veteran avoided eating outside of his home to avoid accidents and had to look for a bathroom wherever he went. The Veteran felt that the ulcerative colitis controlled what he was capable of doing to avoid accidents. It was noted that the Veteran was unable to get a job due to his risk of not being able to control his bowel movements. The VA examiner said that the Veteran had a moderate to severe disability as the Veteran continued to have mild flare ups that interfered with his daily activities, despite being on medications. The Veteran's anemia was thought most likely the result of the ulcerative colitis as a secondary complication of mild severity. According to August 2009 VA medical records, the Veteran had low levels of folate and ferritin. VA medical records indicate that, in June 2010, the Veteran weighed 145 pounds and, in July 2010, weighed 133 pounds. According to an October 2010 TDRL Narrative Summary, the Veteran reported that, shortly after his 2008 discharge, he was hospitalized due to a flare-up of his ulcerative colitis with severe abdominal pain and diarrhea with blood. He was on Remicade at the time of admission. He was hospitalized for 3 days and received IV steroids and Remicade treatments and was discharged. Since his discharge, he had no specific flare-ups; however, he had nausea when he woke up in the morning, and still had weight changes, but maintained his weight between 140 and 145 pounds, although it went down to 130 pounds the previous week. During his last gastroenterological visit, due to the weight loss, his Remicade treatments were changed to six weeks instead of eight weeks. He still had leakage when he had diarrhea. He had three bad days a week when he had severe diarrhea and pain. His last CBC performed October 1, 2010 was reported as hemoglobin and hematocrit (H/H) 16/46. Objectively, there was slight tenderness on palpation of the Veteran's mid-lower abdomen. He took Remicade every six weeks for his ulcerative colitis. His condition was considered unchanged. The examining physician said that ulcerative colitis was a fluctuating condition that had flare-ups intermittently. Based on flare-ups, the Veteran's medicaton will be increased or decreased. The examiner said that, currently, the Veteran was in the pain phase but, if the Remicade did not work, he will need a colectomy to decrease symtoms. It was recommended that the Veteran remain on the TDRL. According to a January 2011 Physical Evaluation Board (PEB) report, the Veteran's medical condition was unfitting due to the chronic diarrhea that was a significant impediment to his ability to perform his duties as an infantryman. The Veteran's condition was described as not stable, he experienced a flare-up while on Remicade and recently lost 12 pounds. A colectomy may be needed to decreased symtoms. The Veteran was retained on the TDRL. At the outset, the Board would note that the Veteran, in his (and his attorneys') written communications, is both competent and credible, and provides a helpful basis for adding to the medical analysis of the current disability picture. He and his attorneys have provided a clear and realistic assessment as to the impact his disability has on his daily living. The Veteran is both able and entitled to address these ongoing symptoms, and how they impact his life, and he has done so quite candidly and articulately. As such, the Board has given great weight to these statements. As well, the Board recognizes that the disability under consideration here is of such a nature that the symptoms and manifestations are not only painful and difficult but, depending on their frequency and precipitousness, may be embarrassing and humiliating. At the very least, the Veteran must be proactive when doing even mundane chores such as shopping and eating out, checking out the locations and accessibility of the bathroom. These are all collateral factors, but go to the overall severity of the chronic problem. As such, the Board has considered all the statements and evidence in light of the worst case scenario when determining the level of severity at which to rate the disability. After reviewing the record and the relevant rating criteria, it is concluded that a 60 percent rating, but no more, is warranted for the Veteran's ulcerative colitis. The recent VA exam and outpatient treatment records suggest that a 60 percent rating is possibly in order. As noted above, prior to service separation, the Veteran was hospitalized for treatment of his symtoms. However, since medications, particularly the Remicade therapy have been instituted, along with Asacol and often a steroidal supplement, his hospitalizations have been limited and much more infrequent. Since virtually the date of separation, with the use of powerful medications, the Veteran has had ongoing symptoms that certainly are tantamount to "numerous" attacks; his health is marginalized when the symptoms are not in a state of flare-up. The June 2009 VA examiner reported that the Veteran had severe fecal leakage that severely affected his ability to maintain his activities of daily living. Thus, there is some basis for an increased rating as discussed herein. Additionally, the record reflects that the Veteran experiences weight changes, from a high of 150 pounds (noted in August 2007) to a low of 127.5 pounds (noted in November 2007) but, essentially fluctuating between 131 and 145 pounds- a minor weight loss, as per 38 C.F.R. § 4.112, albeit distressing and annoying. Although, more recently, his weight has ranged between 140 and 145 pounds. However, the Veteran has demonstrated only mild anemia and no significant sign of malnutrition. While the Veteran's bowel and any associated abdominal symptoms are more often than not closer to severe than moderate, they have not ever consistently approached a sustained level of being pronounced with marked malnutrition and other findings warranting a 100 percent schedular rating. Because these symptoms have generally been severe in nature since service separation, a 60 percent rating is in order from that date. Criteria for the higher 100 percent rating, however, are not met. Parenthetically, even if the Veteran were to be rated under any of the other cited Diagnostic Codes based on isolated symptoms such as the need for pads, etc., he would not warrant a rating in excess of 60 percent. See e.g., 38 C.F.R. § 4.114, Diagnostic Code 7332 (2010). The available outpatient records reflect the Veteran's complaints of moderate to severe disability, manifested by severe fecal leakage, involuntary bowel movement, daily nausea and fluctuating weight. The June 2009 VA examination report reflects symptoms consistent with a 60 percent evaluation. The more recent objective medical evidence, including the October 2010 TDRL evaluation, further demonstrates that the Veteran reported daily nausea, weight changes, leakage with diarrhea and three bad days a week when he had severe diarrhea and pain. As noted above, the Veteran's ulcerative colitis symptoms fluctuate. While in June 2009, the VA examiner, said the Veteran had moderate to severe disability with mild flare ups and mild anemia, in October 2010, the TDRL evaluator said that the Veteran was currently in the pain phase but if Remicade did not work, he will need a colectomy to decrease symtoms. In view of the foregoing, the Board concludes that the evidence is at least in relative equipoise as to whether it is reasonable to conclude that the disability picture is comparable to a 60 percent evaluation. Overall, the evidence shows that there is a question as to which of the two evaluations should apply, 30 percent or 60 percent, since the current level of disability arguably, but not clearly, approximates the criteria for a 60 percent evaluation. Thus, the Board concludes, with resolution of reasonable doubt in the appellant's favor, that a 60 percent rating under Diagnostic Code 7323 is warranted, under the regulations currently in effect. 38 C.F.R. § 4.7. The record does not show persistent symptoms that equal or more nearly approximate the criteria for a rating in excess of 60 percent. First, the increase to 60 percent is warranted only through the application of the reasonable-doubt doctrine. Second, the Veteran's symtoms have not ever consistently approached a sustained level of being pronounced with marked malnutrition and other findings warranting a 100 percent schedular rating. The June 2009 VA examiner said that the Veteran's disability level was moderate to severe with mild flare ups that interfered with daily activities. In October 2010, the TDRL examiner said the Veteran's ulcerative colitis was a fluctuating condition that intermittently flared up and was currently in a pain phase. As such, a rating in excess of 60 percent is not warranted. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. 38 U.S.C.A. § 5107. The Board has also considered whether the Veteran's ulcerative colitis with anemia disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, in view of the holding in Fenderson, the Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected ulcerative colitis disorder, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since the Veteran filed his original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial 60 percent evaluation is granted for ulcerative colitis with anemia, subject to the laws and regulations governing the award of monetary benefits. REMAND In his June 2010 written statement, the Veteran said that his service-connected ulcerative colitis disability prevents him from being able to work and, in her March 2011 written statement, his attorney similarly stated that the Veteran was unable to work due to his disability. As noted above, in Rice v. Shinseki, 22 Vet. App. at 447, the Court held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. In light of the Veteran's unemployment status and the June 2009 VA examiner's notation that the Veteran "is unable to get a job due to his risk of not being able to control his bowel movements", it is necessary for VA to determine whether the Veteran's service-connected disability prevents him from being able to obtain and maintain substantially gainful employment. A TDIU may be granted where the schedular rating is less than total and the service-connected disability(ies) preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). If there is only one service connected disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Given the Board's determination, herein, the Veteran's service-connected ulcerative colitis, now evaluated as 60 percent disabling, meets the percentage prerequisites for entitlement to a TDIU set forth in 38 C.F.R. § 4.16(a). Consideration must be given to whether his service-connected disability renders him unable to obtain and retain substantial gainful employment. See 38 C.F.R. §§ 3.321, 4.16(b). Further, the June 2009 rating decision denied the Veteran's claim for service connection for insomnia. He submitted a notice of disagreement with this determination in August 2009. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case regarding the matter of entitlement to service connection for insomnia. If, and only if, the appellant timely perfects an appeal, should this claim should be returned to the Board. 2. Adjudicate the Veteran's claim for a TDIU. If the benefit sought is not fully granted, the RO or AMC must furnish a supplemental statement of the case before the claims folder is returned to the Board, if otherwise in order. No action is required of the Veteran and his attorney until so notified by the RO or AMC. 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. 2010). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals