Citation Nr: 1128379 Decision Date: 07/29/11 Archive Date: 08/04/11 DOCKET NO. 04-41 812A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an upper respiratory infection to include bronchitis, rhinitis, and sinusitis. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for bilateral tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from August 1971 to July 1975. He received several awards and commendations to include the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. His military occupational specialty is listed as law enforcement specialist. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2002, May 2005, January 2007, and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2009. A transcript of this proceeding is associated with the claims file. This case was previously before the Board in October 2009 at which time the claims addressed above were remanded for further development. With regard to the bilateral hearing loss and tinnitus issues, the Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). As was noted in the October 2009 Board remand, in July 2007 correspondence the Veteran noted that his service-connected lipoma of abdomen was more disabling than evaluated in a September 1978 rating decision and argued that there was clear and unmistakable error in the September 1978 rating. Also, at the September 2009 hearing, the Veteran raised a claim of entitlement to service connection for a dental condition, as secondary to the service-connected facial paresthesia. These issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ, once again, for appropriate action. The issue of entitlement to service connection for an upper respiratory infection to include bronchitis, rhinitis, and sinusitis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no evidence of bilateral hearing loss in service, or within one year after service, and no competent medical evidence linking the Veteran's current bilateral hearing loss with his military service. 2. There is no competent evidence linking the Veteran's current bilateral tinnitus with his military service. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2010). 2. Service connection for bilateral tinnitus is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises out of the Veteran's claim that he suffers from bilateral hearing loss and tinnitus as a result of his service with the United States Air Force from August 1971 to July 1975. Specifically, he contends that he was exposed to excessive noise in service while working on an active flight line near jet engines with no hearing protection. The Veteran attributes his current bilateral hearing loss and tinnitus to this acoustic trauma. Relevant Evidence The Veteran's service treatment records include an audiological examination conducted during the Veteran's enlistment in July 1971 which shows the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 15 10 10 5 Left Ear 20 15 15 15 5 Puretone Threshold Average Right Ear 11 Left Ear 14 Also, in his July 1971 Report of Medical History the Veteran denied "hearing loss." Service treatment records also show that the Veteran had otitis externa of the right ear in August 1973. An audiological examination conducted in August 1974 shows hearing as follows: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 25 20 10 15 Left Ear 35 30 20 25 0 Puretone Threshold Average Right Ear 15 Left Ear 22 An audiological examination upon separation in February 1975 shows hearing as follows: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 20 15 15 15 Left Ear 20 25 20 10 10 Puretone Threshold Average Right Ear 17 Left Ear 17 In his February 1975 Report of Medical History the Veteran reported "yes" to "ear nose or throat trouble" but denied "hearing loss." In December 2004, approximately 29 years after his discharge from service, the Veteran submitted claims for service connection for bilateral hearing loss and tinnitus. The Veteran was afforded a VA audiological examination in March 2005. This examination reported the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 30 35 35 40 Left Ear 30 35 30 30 40 Puretone Threshold Average (1000-4000 Hz) Right Ear 35 Left Ear 33.75 Speech Recognition Right Ear 96% Left Ear 96% During the March 2005 VA examination, the Veteran reported a history of bilateral hearing loss beginning in 1974. Nonmilitary noise exposure was denied. He indicated that he served as a military policeman and was exposed to jet engine noise from guard duty in and near flight lines as well as from weapons training. On the history questionnaire, the Veteran reported he was in combat as well as having non-combat duties in a combat done. He reported that he was in Vietnam for eight months and no specific acoustic trauma from combat-type activities was reported. The Veteran recalled being treated for ear problems at George Air Force Base during the winter of 1974-75 and recalled having a temporary decrease in hearing and the onset of ringing head noise due to being close to a jet engine test stand. Pre-service noise exposure reportedly appeared unlikely and post-service civilian occupational noise exposure was denied. Other nonmilitary noise exposure was also denied. The examiner noted that the February 1975 separation examination reported normal hearing sensitivity for each ear and no thresholds poorer than 20 dB were reported for either ear. Furthermore, no complaint of tinnitus was found in the service records. While in service the Veteran was treated for tonsillitis and external otitis. Treatment for external otitis was May 1973. While in service the Veteran was also evaluated for issues relating to syncope and seizures believed to be due to a high school injury. Just prior to discharge the Veteran was reportedly referred for an EEG (electroencephalogram) for the complaint of headache and dizziness. All records were negative for the symptoms of tinnitus. The examiner further noted that a July 1978 post-service VA treatment record was negative for a complaint of tinnitus. The examiner recorded that the Veteran "was in no combat" but indicated that the Veteran reported involvement in "some sniper attacks." Upon audiological examination, the March 2005 VA examiner diagnosed the Veteran with bilateral hearing loss and tinnitus. With regard to the hearing loss the examiner opined that it was less likely as not that the complaint of hearing loss was a consequence of acoustic trauma while in service. At the time of the Veteran's discharge from military service, hearing sensitivity was within normal limits without signs of an early noise induced hearing loss. There was insufficient information to determine if the post-service onset hearing loss and tinnitus are linked by a common etiology. Thus, the examiner opined that it was more likely than not that both complaints were due to post-service factors and it was less likely than not that either or both were due to events while on active duty. With regard to the tinnitus issue, the examiner opined that it was less likely as not that the complaint of subjective tinnitus was a consequence of acoustic trauma while in service. The examiner wrote that the complaint of tinnitus was not found in the service records for situations relating to care of the ear, seizures, and headache. It was reasonable to expect the symptom of tinnitus to be recorded when involved in the differential diagnosis of seizures, neurological complaints, and headache as well as ear disease. The Veteran's records do not record the presence of the symptom during examinations that took place after the claimed onset of tinnitus. This included the 1978 post-service VA treatment report. In addition, heading sensitivity was clinically normal at the time of discharge. The examiner indicated that the most likely etiology of the symptom was post-service factors not yet identified. This case was previously before the Board in October 2009, at which time the Board found that the March 2005 VA examination report was inadequate because the 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 155. The Board also noted that the March 2005 VA examiner did not discuss the August 1973 service treatment record showing an impression of otitis externa of the right ear nor did the examiner comment on whether the Veteran's current bilateral hearing loss and tinnitus are related to this particular right ear infection. Pursuant to the October 2009 Board remand the Veteran was afforded a second VA audiological examination in March 2010. This examination reported the following: Puretone Threshold 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 30 30 35 40 Left Ear 25 30 25 30 45 Puretone Threshold Average (1000-4000 Hz) Right Ear 33.75 Left Ear 32.5 Speech Recognition Right Ear 96% Left Ear 94% At that time the Veteran reiterated his previous history regarding noise exposure during military service. The examiner noted that the Veteran denied occupational noise exposure but a review of VA treatment records showed that the Veteran had been a truck driver in the past, date and time unknown. With regard to the tinnitus issue, the Veteran reported that tinnitus began in 1974 when he was standing outside a building where the military builds F4s. Reportedly, the military was testing F4's after burners within the building. When the after burners were turned on, the Veteran and his supervisor were thrown 20 feet. The Veteran indicated that he could not hear for three to four days after this and his ears rang constantly. The Veteran reported that he was tested at that time and was told his hearing would return but that the tinnitus would never go away. However, the examiner noted that in 2005 the Veteran reported a conflicting history, "during the winter of 1974-75 he recall[ed] having a temporary decrease in hearing and the onset of a ringing head noise due to being close to a jet engine test stand." The examiner also noted that tinnitus was not reported until 2005 in VA treatment records. In response to the October 2009 Board remand the March 2010 VA examiner wrote: Hearing loss is less likely as not (less than 50/50 probability) caused by or a result of military service or the August 1973 treatment for otitis externa of the right ear. Enlistment audiogram dated July 2, 1971 and separation examination dated February 18, 1975 indicated no significant change in hearing from enlistment to separation. Hearing thresholds were within test re-test reliability. Hearing was considered clinically normal and does not meet 38 C.F.R. § 3.385 for disability. [The] Veteran denied hearing loss at separation. Medical records do not indicate any hearing problems until October 21, 2002 where [the] Veteran reported to his primary care physician a slight decrease in hearing. According to the 2002 American College of Occupational and Environmental Medicine Position Statement on Noise-Induced Hearing loss, scientific research indicates that hearing loss due to noise does not progress beyond age-related changes once the exposure to noise is discontinued. Recreational noise exposure unknown. [The] Veteran did not report recreational noise exposure because he did not feel it was "pertinent to his claim." [The] Veteran reported a history of ear, nose, and throat issues at separation; however, the report did not include the ear, tinnitus, or hearing. Regarding otitis externa, acute otitis externa can cause temporary hearing loss if the ear canal is swollen and the eardrum is blocked. Medical records dated August 30, 1973 indicate the right eardrum was clear and visible; therefore, suggesting no blockage of the outer ear canal to cause a temporary hearing loss and no middle ear effusion. Left ear was noted clear. Medical records indicate the ears were clear bilaterally upon follow-up. Nevertheless, service records indicate no significant change in hearing from enlistment to separation. With regard to the tinnitus issue the examiner wrote the following: Tinnitus is less likely as not (less than 50/50 probability) caused by or a result of military service or the August 1973 treatment for otitis externa of the right ear. A VAMC (VA Medical Center) Kansas City report dated July 25, 1978 is negative for the complaint of tinnitus. [The] Veteran [was] treated for pharyngitis in 1984. Report of symptoms included a decrease in hearing in the left ear; however, ears were clear. No tinnitus reported. The report of tinnitus is not found in medical records for situations relating to care of the ear, seizures, and headache. It is reasonable to expect the symptom of tinnitus to be recorded and involved in the differential diagnosis of seizures, neurological complaints, and headache as well as ear disease. No change in hearing from enlistment to separation. [The] Veteran's report[ed] onset [was] inconsistent with previous report in the [March 2005 VA audiological] examination. Tinnitus not reported until 2005. With regard to the tinnitus issue being related to otitis externa the examiner wrote: [The] Veteran reported symptoms consistent with otitis externa; however, tinnitus was not reported. Temporary tinnitus may occur with acute otitis externa when temporary hearing loss occurs if the ear canal is swollen and the eardrum is blocked. Medical records dated August 30, 1973 indicate the right eardrum was clear and visible; therefore, suggesting no blockage of the outer ear canal to cause a temporary hearing loss and no middle ear effusion. Left ear was noted clear. [The] Veteran did not relate tinnitus to otitis externa. Also of record are VA outpatient treatment reports dated through December 2008. While these records primarily reflect treatment for diabetes, obesity, depression, and headaches they also show diagnoses of bilateral hearing loss beginning in 2002 and tinnitus beginning in 2005. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Certain chronic diseases, including sensorineural hearing loss, may be presumed to have incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more that one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In fact, a claimant may establish direct service connection for a hearing disability which initially manifests itself several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Entitlement to service connection for impaired hearing is subject to the requirements of 38 C.F.R. § 3.385, which provide: "For the purpose of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." This regulation defines hearing loss disability for VA compensation purposes. The threshold for normal hearing is from zero to 20 dB, and higher threshold levels indicate some degree of hearing loss. See Hensley, 5 Vet. App. at 157. Analysis 1. Bilateral hearing loss The Board notes that both the March 2005 and March 2010 VA audiological evaluation reports show that the Veteran has a bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Given the evidence of record, the Board finds that service connection for bilateral hearing loss is not warranted. First, there is no evidence of bilateral hearing loss in the Veteran's service treatment records. As above, examination reports dated in July 1971, August 1974, and February 1975 show normal hearing. The first objective showing of hearing loss in the record is the March 2005 VA audiological examination report, approximately 30 years after service. Also, there is no link between the Veteran's current bilateral hearing loss and military service. In fact, both the March 2005 and March 2010 VA examiners provided opinions that the Veteran's hearing loss was not related to military service. Significantly, the March 2010 VA examiner noted that both the July 1971 enlistment and February 1975 separation examinations indicated no significant change in hearing from enlistment to separation. Also, the examiner cited a study indicating that hearing loss due to noise does not progress beyond age-related changes once the exposure to noise is discontinued. Furthermore, the examiner noted that medical records do not indicate any hearing problems until October 2002 where the Veteran reported to his primary care physician a "slight" decrease in hearing. Regarding the Veteran's August 1973 otitis externa, the examiner wrote that acute otitis externa can cause temporary hearing loss if the ear canal is swollen and the eardrum is blocked but August 1973 medical records indicate the right eardrum was clear and visible; therefore, suggesting no blockage of the outer ear canal to cause a temporary hearing loss and no middle ear effusion. There is no contrary medical evidence of record. 2. Tinnitus Given the evidence of record, the Board finds that service connection for bilateral tinnitus is not warranted. Service treatment records are negative for complaints of tinnitus despite several situations relating to care of the ear, seizures, and headache wherein, according to the March 2010 VA examiner, it is reasonable to expect the symptom of tinnitus to be recorded. The first objective showing of bilateral tinnitus in the record is the December 2004 claim, approximately 29 years after service. Also, there is no link between the Veteran's current bilateral tinnitus and military service. In fact, both the March 2005 and March 2010 VA examiner's provided an opinion that the Veteran's tinnitus was not related to military service, citing the lack of complaints regarding tinnitus despite several situations relating to care of the ear, seizures, and headache. Furthermore, regarding the Veteran's August 1973 otitis externa, the examiner wrote that acute otitis externa can cause temporary tinnitus if the ear canal is swollen and the eardrum is blocked but August 1973 medical records indicate the right eardrum was clear and visible. There is no contrary medical evidence of record. While the Veteran contends that his bilateral hearing loss and tinnitus are related to military service, the Board accords his statements regarding the etiology of such disorders little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The March 2005 and March 2010 VA examiners reviewed his records, considered his reported history, and examined the Veteran. Therefore, the Board finds that the March 2005 and March 2010 VA examiner's opinions are the most probative evidence of record. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, 451 F.3d at 1331. Here, however, any statements as to continuous bilateral hearing loss/tinnitus since service are not found to be persuasive in light of the fact that the Veteran specifically denied such complaints upon separation and was not diagnosed with bilateral hearing loss until 27 year after service and was not diagnosed with tinnitus until 31 years after service. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see also Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board finds the Veteran's contemporaneous in-service history and findings at separation along with the absence of complaints or treatment for many years after service outweigh his current statements regarding continuity of symtomatology. The Board also questions the Veteran's credibility, particularly with his changing accounts of gradual versus sudden noise exposure during military service. For these reasons, continuity of symptomatology has not here been established, either through the medical evidence or through the Veteran's statements. The opinions of the March 2005 and March 2010 VA examiners are highly probative and outweigh the other evidence of record, including the Veteran's testimony and contentions. As there is no medical evidence that the Veteran's current bilateral hearing loss/tinnitus are related to his military service, his claim for service connection must be denied. 38 U.S.C.A. § 5107(b). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant substantially compliant notice in March 2004 and February 2010 and the claim was readjudicated in a September 2010 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant adequate audiological examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Service connection for bilateral hearing loss is denied. Service connection for bilateral tinnitus is denied. REMAND In its October 2009 remand the Board noted that service treatment records show complaints of an upper respiratory nature in August 1973 (URI (upper respiratory infection)), September 1973 (strep throat), December 1973 (stuffy nose), April 1974 (URI), and September 1974 (sore throat). Post-service treatment records also show treatment for upper respiratory infections. Specifically, a March 1982 private treatment report shows an impression of a sinus infection and a January 2008 VA treatment report shows an impression of allergic rhinitis. As there was evidence of upper respiratory complaints in service and a current diagnosis of allergic rhinitis, the Board found that a VA examination for the Veteran's claimed upper respiratory disorder was necessary. 38 C.F.R. § 3.159(c)(4). Pursuant to the October 2009 remand, the Veteran was the Veteran was afforded a VA examination in March 2010. Upon review of the record the examiner indicated that she could not provide an opinion as to whether chronic rhinitis was related to the Veteran's military service. The examiner indicated that there was evidence of the Veteran being treated for pharyngitis (sore throat) during military service and, according to the examiner, there could have been an allergy component to that diagnosis although not noted. The examiner indicated that there was "NO WAY to know now what was then." The examiner noted that a review of the record was negative for evidence of a chronic issue other than allergic rhinitis. The examiner wrote that it was possible that the Veteran's chronic rhinitis was present at that time, but this was not documented in the record. Therefore, the examiner indicated that she could not, without mere speculation, resolve the issue. Unfortunately, the Board finds that the above opinion is inadequate and presents more questions than it does answers. First, the Veteran's current diagnosis is unclear from the March 2010 VA examination report. It appears the examiner diagnosed the Veteran with chronic rhinitis, however, this is not entirely clear. Also, the examiner seemingly contradicts herself in the opinion. First, the examiner indicated that the while there could have been an allergy component to the Veteran's in-service diagnosis of pharyngitis, this was not noted. Subsequently, the examiner indicated that "I have reviewed the records and I do not find evidence of chronic issue other than allergic rhinitis." A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. at 268. Where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance. As such, the Board finds that this case is not ready for appellate review and must be remanded for further development. On remand the Veteran should be afforded a new VA examination to clarify what the Veteran's current diagnosis is, whether it is related to service, and why or why not. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of a chronic upper respiratory disorder and the relationship, if any, between this claimed disorder and the Veteran's military service. The claims file must be made available to the examiner for review. Based on the examination and review of the record, the examiner is requested to express an opinion as to the following: (i) Does the Veteran have a current upper respiratory disorder? If so, give the specific diagnosis. (ii) If so, is it at least as likely as not that any currently diagnosed upper respiratory disorder was incurred during the Veteran's military service? The examiner should attempt to clarify the seemingly contradictory findings of the March 2010 VA examiner, specifically whether the Veteran's service treatment records show allergic rhinitis during military service and/or whether there was an allergy component to any of the Veteran's in-service upper respiratory problems. A complete rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation the examiner should so state and also explain why such an opinion cannot be made. 2. After the development requested above has been completed to the extent possible, readjudicate the Veteran's claim. If any benefit sought continues to be denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs