Citation Nr: 1402176 Decision Date: 01/15/14 Archive Date: 01/31/14 DOCKET NO. 06-14 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for narcolepsy from July 2, 2003 to October 6, 2004. 2. Entitlement to an initial disability rating in excess of 20 percent for narcolepsy from October 7, 2004 to July 14, 2008. 3. Entitlement an initial disability rating in excess of 80 percent for narcolepsy since July 15, 2008. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: American Legion ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to September 1981, from August 1985 to May 1986 and from April 1987 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Since the February 2012 supplemental statement of the case (SSOC), VA treatment records have been submitted to the Virtual VA paperless claim file which are not pertinent to the issue of a higher disability rating for narcolepsy. In September 2011, the Board remanded the issue of a higher rating for narcolepsy for additional development and referred the issue of TDIU to the RO for adjudication. As the actions specified in the September 2011 remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was scheduled for a hearing to be held in July 2011, however, the record reflects that the Veteran cancelled his hearing request and has not requested rescheduling. The claim of entitlement to TDIU 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 FACTS 1. Between July 2, 2003 and October 6, 2004, the Veteran's service-connected narcolepsy was not characterized by at least one major seizure in the last two years; or at least two minor seizures in the last six months. 2. Between October 7, 2004 and July 14, 2008, the Veteran's service-connected narcolepsy was characterized by an average of at least five to eight minor seizures weekly. 3. Since July 15, 2008, the Veteran's service-connected narcolepsy was not characterized by an average of at least one major seizure per month over the last year. CONCLUSIONS OF LAW 1. Between July 2, 2003 and October 6, 2004, the criteria for a rating in excess of 10 percent have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.124a, Diagnostic Code 8108-8911 (2013). 2. Between October 7, 2004 and July 14, 2008, the criteria for a rating of 40 percent have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.124a, Diagnostic Code 8108-8911 (2013). 3. Since July 15, 2008, the criteria for a rating in excess of 80 percent have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.124a, Diagnostic Code 8108-8911 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran argues that his narcolepsy is more disabling than currently evaluated. The Board will in part grant the claim. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, and thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, because the notice that was provided before service connection for narcolepsy was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent VA examinations in October 2009 and December 2011 to assess the severity of his narcolepsy. The VA examinations are informed, competent and responsive to the issue under consideration. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA has fulfilled its duties to notify and assist the Veteran. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Merits of the Claim Service connection for narcolepsy was established in a January 2005 rating decision, at which time the RO assigned an initial 10 percent disability rating pursuant to Diagnostic Code 8108-8911. Diagnostic Code 8108 pertains to narcolepsy, which is to be rated as epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8108 (2013). Diagnostic Code 8911 pertains to epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2013). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Under Diagnostic Code 8911, for petit mal epilepsy, both the frequency and type of seizures a Veteran experiences are considered in determining the appropriate rating. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a (2013). To warrant a rating the seizures must be witnessed or verified at some time by a physician, and regarding the frequency of epileptiform attacks, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. It is also provided that the frequency of seizures should be ascertained under the ordinary conditions of life while not hospitalized. 38 C.F.R. § 4.121 (2013). Under the general formula, a 10 percent rating is assigned for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is assigned when there has been at least one major seizure in the last two years; or at least two minor seizures in the last six months. A 40 percent rating is assigned when there has been at least one major seizure in the last six months or two in the last year; or averaging at least five to eight minor seizures weekly. A 60 percent rating is assigned when there has been an averaging of at least one major seizure in four months over the last year; or nine to ten minor seizures per week. An 80 percent rating is assigned when there has been an averaging of at least one major seizure in three months over the last year; or more than 10 minor seizures weekly. An 100 percent rating is assigned when there has been an averaging of at least one major seizure per month over the last year. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2013). A July 2003 VA treatment record reflects that the Veteran, who had been previously diagnosed with narcolepsy, reported occasional episodes of falling asleep once a day, but did not report any symptoms associated with cataplectic attacks. (Cataplexy is "a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 303 (32nd ed. 2012).) He said that he experienced "chronic fatigue" and that his condition made it difficult to find work, although he had been prescribed medications. An August 2004 VA treatment record reported that the Veteran was recently released from jail. Although there was only one sleep attack witnessed while he was jailed, the Veteran said he his sleeping episodes had increased. In October 2004, the Veteran had a multiple sleep latency test (MSLT) which found that he had mild excessive daytime sleepiness. Following the sleep study, the VA treating psychiatrist reported that the Veteran experienced daytime sleepiness occurring once an hour and lasting for five minutes. A November 2004 VA treatment record described a cataplectic attack that the Veteran said occurred after he was unable to get service at his bank. He said he had slurred speech and collapsed for about 30 seconds. He also said it took several minutes to fully regain control of his body. A January 2005 VA treatment record indicated that the Veteran had full-time employment as sales agent with an internet service provider. He reported that his structured work schedule helped him stay alert. However, the Veteran also reported having difficulty processing information relayed by a customer and that he had difficulty completing tasks. He reported remaining compliant with his medication, except he sometimes missed the last dose of medication, because he feared not being able to sleep. The Veteran reported two cataplectic attacks when he was recently evicted from a church. The VA treating psychiatrist found that the Veteran's narcolepsy with cataplexy had a "tremendous impact" on the Veteran's ability to maintain employment. An April 2005 VA treatment record reflected that the Veteran had a recent cataplectic attack, and reported he lost muscle strength and was unable to talk. A May 2005 VA treatment record reflected that the Veteran reported a narcoleptic episode at work and feared that he would lose his job. He also said that his sleep had been interrupted for the last two months since he moved to an overcrowded housing facility. He said that he continued to use medication, but still experienced fatigue and sleepiness throughout the day. A May 2006 VA treatment record indicated that the Veteran's sleep pattern had been erratic and that he had two brief narcoleptic episodes at work. A November 2006 treatment record detailed the Veteran's report of his cataplexy and sleep attacks. The Veteran described his cataplectic attacks, which occurred three to four times a week, as experiencing a lack of muscle tone and then collapsing. He said that he was unable to move and had slurred speech. He said his sleep attacks occurred more frequently and that he stayed busy to prevent from falling asleep. The Veteran said that problems with his landlord and recent unemployment contributed to his increased stress level. The VA treating psychiatrist found that the Veteran had poor control of his narcolepsy despite complying with his medication and changed his medication to Xyrem to help adjust his sleep pattern. A December 2006 VA treatment record reflects that the Veteran had daily narcoleptic or cataplectic episodes attributable to his continued landlord problems and concerns over his finances. He reported increased sleep attacks when he was not occupied by tasks and chronic fatigue throughout the day. The Veteran also experienced brief episodes of cataplexy after encounters with people arguing or criticizing him. He said he experienced these narcoleptic attacks whenever he felt anxious. A January 2007 VA treatment record indicated that the Veteran stopped taking Xyrem because he said it made him lethargic and caused him to have paralysis. He also said he was still experiencing daily narcoleptic or cataplectic attacks. In February and March 2007, VA treatment records reflect that the Veteran's narcoleptic episodes occurred about three time a week. The Veteran attributed each occurrence to being provoked by a stressful event. A May 2007 VA treatment record revealed that the Veteran was experiencing fewer sleep attacks after moving from a reportedly dangerous neighborhood. The VA treating psychiatrist found that the Veteran's narcolepsy had improved as a result of his reduction in stress and use of dextroamphetamine and modafinil. VA treatment records dated from July 2007 through October 2007 do not show any worsening of his narcolepsy. While the Veteran continued to report episodes of daytime sleepiness and occasional cataplexy, he felt that the medications kept him functional. Significantly as it bears on his employability, he reported that he thought his social stressors, which were previously shown to worsen symptoms, would improve after he started his new job in August. A January 2008 VA treatment record described the Veteran's reported cataplectic attack at work, which he said was precipitated by an argument with a co-worker. He said he lost muscle control and the emergency medical service (EMS) was called. He denied having any other incidents since that time. In VA treatment records dated February 2008 through June 2008, the Veteran reported using external coping mechanisms to divert attention from away from stressful situations thereby preventing an attack. The VA treating psychiatrist found his condition to be stable with his continued use of medication. In a July 2008 VA treatment record, the Veteran reported an incident where while discussing a disruptive studying environment with his landlord, the Veteran felt his body go numb and he rushed to his bed and immediately fell asleep. The VA treating psychiatrist said that the Veteran also reported cataplectic attacks at work, which the Veteran described as experiencing heavy limbs, drooping head, and a thickening voice. The VA treating psychiatrist said that a significant increased dose of his medication could reduce the frequency of these sleep attacks and cataplexy. The VA treating psychiatrist found that the Veteran was experiencing these attacks several times a week and that they were substantially impacting his ability to work. A January 2009 VA treatment record shows that the Veteran described daily episodes of falling, being unable to move and then going to sleep. He said these episodes lasted for about 30 minutes. An April 2009 VA treatment record reflects that the Veteran had another cataplectic attack, lasting 30 minutes, after becoming excited from a visit with his daughter and grandchildren. He said he was then working as a telemarketer after recently losing another job. He also said that he had been using energy drinks to supplement his treatment of his daytime sleepiness. He said the drinks made him "too wired" at night, so he went to gym to workout. VA treatment records dated May 2009 through September 2009 show that the Veteran expressed concerns about his productivity at work, as he was warned by his employer that he spent too much time on customer calls. The Veteran said he experienced sleep attacks two times a week when he was idle, but did not report any cataplexy episodes. In October 2009, the Veteran was afforded a VA examination to assess his narcolepsy. The Veteran reported having sleep attacks ranging from three to five a day. Over the last 12 months, the Veteran had missed three weeks of work. The examiner found that over the last year, the Veteran had five to eight narcoleptic episodes a week. The examiner also found that the Veteran's narcolepsy with cataplexy affected his social interactions and had a significant impact on his employment, as he had difficulty following instructions and he experienced episodes of decreased attention, loss of muscle tone, and automatic behaviors coincident with sleep attacks. A November 2009 VA treatment record documented that the Veteran had two cataplexy attacks since his last appointment. He recalled having a "bad cataplexy attack" in October when he argued with a cashier over coupons and then started to feel as if he was shaking all over; he made it to his car and then continued to experience the attack for an hour. Although the Veteran said that he was sleeping well (8 hours per night) and doing well with medications, he still reported daily sleep attacks. VA treatment records dated January 2010 through January 2011 reflect that the Veteran had problems staying awake while watching television, attending church, or seeing a movie. He also reported experiencing a cataplectic or sleep attack almost every month usually prompted by exercising at the gym or engaging in arguments at work over his lack of productivity. In May 2010, he said his attacks increased to once a day when he thought he would be fired. In December 2010 and January 2011, the Veteran said that a recent change in his work schedule, from afternoon shifts to night and early morning shifts, disrupted his sleep pattern and affected his ability to concentrate at work. The VA treating psychiatrist noted that the Veteran was taking the maximum recommended dose of dextroamphetamine and over the recommended dose of modafinil to treat his narcolepsy. In VA treatment records dated April and May 2011, the Veteran said that stress, over repairs on a house he had purchased, caused him to have increased cataplexy episodes over the last two months. He also reported having increased daytime sleepiness and being placed on probation for lost time at work. In May, he said his cataplectic episodes occurred three times a week and his narcoleptic episodes occurred daily. A July 2011 VA treatment record relayed the Veteran's daily management of his narcolepsy. The Veteran said he started the day waking with sleep paralysis and then took his first dose of medication. He took his second dose at noon before going to work for his 1:30 pm to 9:00 pm shift. He described falling asleep when work was slow and later in his shift when his second dose wore off. Over the last 30 days, the Veteran said he had 10 cataplectic episodes where he lost muscle tone and slumped, but he usually caught himself in time to sit down. At a December 2011 VA examination, the Veteran reported having symptoms of excessive daytime sleepiness, sleep attacks, cataplexy, and sleep paralysis. The examiner noted that he had at least two narcoleptic episodes, consisting of a sudden urge to sleep when idle, in the last six months, occurring more than 10 times per week. The examiner's report reflected that the Veteran had a "severe" cataplexy attack in August while dealing with a contractor. The examiner reported that the Veteran's narcolepsy affected his work as a telemarketer, because he would frequently doze off and sometimes mumbled during cataplectic episodes. The preponderance of the evidence is against an evaluation higher than 10 percent for the period from July 2, 2003 to October 6, 2004. The Veteran did not have at least one major seizure in the last two years or at least two minor seizures in the last six months. During this period, the Veteran only had one reported sleep attack while he was incarcerated. Although the Veteran described experiencing increased sleep episodes after his release from jail, he did not specifically indicate how frequently they occurred. Thus, the preponderance of the evidence is against a finding that the Veteran's disorder has met the criteria for an initial evaluation in excess of 10 percent from July 2, 2003 to October 6, 2004. However, the evidence is in approximate balance as to an evaluation higher than 20 percent for the period from October 7, 2004 through July 14, 2008. The evidence of record does show that the Veteran averaged at least five to eight minor seizures weekly. Since October 2004, the Veteran reported, on an almost monthly basis, experiencing at least one cataplectic attack and sometimes daily episodes of sleep attacks. He described specific cataplectic episodes, sometimes occurring weekly, in November 2004, April 2005, November 2006, and January 2008, where he lost muscle control, experienced slurred speech and collapsed. During this period, the Veteran also had frequent sleep attacks. The criteria for an initial evaluation of 40 percent from October 7, 2004 to July 14, 2008 have been approximated. The preponderance of the evidence is against an evaluation higher than 80 percent for the period from July 15, 2008. The Veteran did not have an average of at least one major seizure per month over the last year. Although the December 2011 VA examiner noted that the Veteran had a "severe" cataplexy attack in August 2011, the examiner also found that the Veteran's sleep attacks, where he experienced a sudden urge to sleep when idle, occurred about 10 times a week. The evidence of record does not reflect that the Veteran experienced at least one major seizure on a monthly basis for a year. Therefore, these narcoleptic episodes are more appropriately characterized by an 80 percent disability rating. The evidence of record does not support the assignment of a further staged disability rating. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. After a careful review of the record, the Board can find no credible evidence to support a finding that the Veteran's narcolepsy was more severe during the appeal period than is otherwise discussed above. The Board has also considered whether the Veteran's narcolepsy 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 extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); 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 higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, with the preponderance of the evidence against the assignment of a higher initial rating than that which has already been established, the benefit-of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial disability rating for narcolepsy in excess of 10 percent from July 2, 2003 to October 6, 2004 is denied. Entitlement to an initial disability rating for narcolepsy of 40 percent from October 7, 2004 to July 14, 2008 is granted. Entitlement to an initial disability rating for narcolepsy in excess of 80 percent since July 15, 2008 is denied. REMAND The Veteran's employability status is not clear. Although the Veteran was last reported to be employed in late 2011, it is unclear whether he remains employed and if so, whether that employment may be characterized as "marginal" within the meaning of 38 C.F.R. § 4.16(a). Additional information is needed to determine the degree of occupational impairment resulting from the Veteran's service-connected disabilities (excision of lipoma, irritable bowel syndrome, anxiety disorder, not otherwise specified, and narcolepsy). See Beaty v. Brown, 6 Vet. App. 532 (1994). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send a VCAA notice letter notifying the Veteran of any information or lay or medical evidence not previously provided that is necessary to substantiate the TDIU claim on appeal. This notice must indicate what information or evidence the Veteran should provide, and of what information or evidence VA will attempt to obtain on his behalf. Include with this letter a VA Form 21-8940 for the Veteran to complete. 2. Ascertain whether the Veteran is employed, and if so, determine whether employment is marginal within the meaning of 38 C.F.R. § 4.16(a). Advise the Veteran of the potential relevance of his employment records and inquire if he has received any pertinent private medical treatment for his service-connected disabilities. The RO/AMC should provide him with an authorization for release of records from any relevant employers and/or private treatment providers. If any authorizations are received from the Veteran, make reasonable attempts to obtain the identified records and associate any available records with the claims file or virtual record. If unable to obtain any of the relevant records sought, notify the Veteran of the unavailability of the records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 38 U.S.C.A. § 5103A(b)(2) (West 2002). 3. The RO/AMC should obtain and associate with the claims file or virtual record all outstanding VA treatment records from July 2012 to the present. All efforts to obtain these records must be documented in the claims file or virtual record. Such efforts should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. 4. Then readjudicate the claim. If the claim is not granted in full, the Veteran must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate decision. The Veteran 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. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs