Citation Nr: 0008111	
Decision Date: 03/27/00    Archive Date: 03/29/00

DOCKET NO.  95-30 692	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Houston, Texas


THE ISSUES

1.  Entitlement to service connection for arthritis.

2.  Entitlement to service connection for a disability 
resulting from reported plague immunization.

3.  Entitlement to a permanent and total disability rating 
for pension purposes.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The veteran had active service from December 1970 to June 
1972.  

In January 1994, the RO issued a rating decision in which it 
denied entitlement to service connection for arthritis of 
multiple joints, and residuals of black plague immunization, 
and also denied entitlement to non-service-connected pension 
benefits.  The veteran submitted a notice of disagreement as 
to all three issues later that month.  The RO issued a 
statement of the case, which was sent to the veteran on March 
7, 1995.

In a rating decision dated March 3, 1995, notice of which was 
sent to the veteran on March 13, 1995, the RO denied 
entitlement to service connection for arthritis and residual 
disability due to plague immunization, as well as entitlement 
to non-service connected disability pension.  

On May 18, 1995, the RO received a statement from the veteran 
in which he expressed disagreement with the denials of 
service connection of which he was notified on March 13, 
1995, and expressed the desire to reopen his claim for non-
service connected pension.

In June 1995, the RO advised the veteran that his claims for 
service connection and pension had become final, and that he 
would need to submit new and material evidence to reopen 
those claims.

In July 1995, the RO issued another statement of the case as 
to the issues of service connection for arthritis and for 
residual disability due to plague immunization.  In the 
statement of the case, it was noted that the veteran's May 
1995 statement had been construed as a notice of disagreement 
with the March 1995 rating decision. 

In statements dated the day following the July 1995, 
statement of the case, the veteran again reported that he was 
submitting a notice of disagreement with the March 1995, 
denial of pension benefits.  

In August 1995, the veteran submitted a VA Form 9, appeal to 
the Board, in which he expressed his continuing disagreement 
with the denials of service connection, and pension benefits.

For reasons which will be set forth in a remand at the end of 
the decision below, the question of the veteran's entitlement 
to a permanent and total disability rating for pension 
purposes is being deferred pending additional development.  


FINDINGS OF FACT

1.  There is no competent evidence of a nexus between service 
and any current arthritis.

2.  There is no competent evidence of any current disability 
resulting from a reported plague immunization in service.


CONCLUSIONS OF LAW

1.  The claim of entitlement to service connection for 
arthritis is not well grounded.  38 U.S.C.A. § 5107(a) (West 
1991); Caluza v. Brown, 7 Vet. App. 498 (1995), affirmed, 78 
F.3d. 604 (Fed. Cir. 1996) (per curiam). 

2.  The claim of entitlement to service connection for a 
disability resulting from reported plague immunization in 
service is not well grounded.  38 U.S.C.A. § 5107(a) (West 
1991); Caluza v. Brown, 7 Vet. App. 498 (1995), affirmed, 
78 F.3d. 604 (Fed. Cir. 1996) (per curiam).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Procedural Matters

Ordinarily a substantive appeal must be filed within the 
remainder of the one year period following notice of the 
decision being appealed or 60 days of the issuance of a 
statement of the case, whichever is longer. Otherwise the 
decision becomes final.  38 U.S.C.A. § 7105 (West 1991); 
38 C.F.R. § 20.302 (1999).  The United States Court of 
Appeals for Veterans Claims (known as the United States Court 
of Veterans Appeals prior to March 1, 1999) (hereinafter, 
"the Court") has held that the Board may waive timely 
filing of a substantive appeal, when a request for an 
extension of time for filing is submitted prior to the 
expiration of the period for filing.  Roy v. Brown, 5 Vet. 
App. 554 (1993).  More recently, the Court has held that the 
Board legitimately waived timely filing, even where a request 
for extension had not been submitted.  Beyrle v. Brown, 9 
Vet. App. 24, 28 (1996).  The Court has also applied the 
doctrine of "equitable tolling" to the Board.  Pfau v. West, 
12 Vet. App. 515, 517 (1999) (quoting Irwin v. Department of 
Veterans Affairs, 498 U.S. 89 (1990)).  In Irwin, the Supreme 
Court held that the doctrine of "equitable tolling" applies 
to cases in which Federal agency is a party and a party is 
induced by the other party's conduct into missing a deadline 
for filing.  Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 
95-96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990) 

In the instant case the veteran's May 1995, statement can be 
viewed as a substantive appeal as to the March 1995, 
statement of the case.  However, the substantive appeal was 
received more than 60 days after the issuance of the 
statement of the case and well beyond the one-year period 
following the original January 1994 rating decision, and the 
veteran did not request an extension of the time period for 
filing a substantive appeal.  Their was a long delay in 
issuing the statement of the case following the veteran's 
timely notice of disagreement.  The Board also notes that the 
veteran could have been, and apparently was, mislead by the 
receipt of the notice of the March 1995 rating decision, 
which came after the issuance of the statement of the case, 
into believing that next step in perfecting his appeal was to 
submit a notice of disagreement within one year, rather than 
a substantive appeal within 60 days.  In view of these 
considerations, the Board will waive the timely filing of the 
substantive appeal.

Well Grounded Claims

In Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997), cert. 
denied, 524 U.S. 940 (1998), the United States Court of 
Appeals for the Federal Circuit (Federal Circuit) held that, 
under 38 U.S.C. § 5107(a), VA has a duty to assist only those 
claimants who have established well-grounded (i.e., 
plausible) claims.  More recently, the United States Court of 
Appeals for Veterans' Claims (Court) issued a decision 
holding that VA cannot assist a claimant in developing a 
claim which is not well grounded.  Morton v. West, 12 Vet. 
App. 477 (July 14, 1999), req. for en banc consideration by a 
judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per 
curiam).  

Once a claimant has submitted evidence sufficient to justify 
a belief by a fair and impartial individual that a claim is 
well grounded, the claimant's initial burden has been met, 
and VA is obligated under 38 U.S.C. § 5107(a) to assist the 
claimant in developing the facts pertinent to the claim.  
Accordingly, the threshold question that must be resolved in 
this appeal is whether the appellant has presented evidence 
that the claim is well grounded; that is, that the claim is 
plausible.  

In order for a claim to be well grounded, there must be (1) a 
medical diagnosis of a current disability; (2) medical, or in 
certain circumstances, lay evidence of inservice occurrence 
or aggravation of a disease or injury; and (3) medical 
evidence of a nexus between an inservice injury or disease 
and the current disability.  Epps, 126 F.3d. at 1468; 
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d. 
604 (Fed. Cir. 1996) (per curiam).  Where the determinative 
issue involves medical causation or etiology, or a medical 
diagnosis, competent medical evidence to the effect that the 
claim is "plausible" or "possible" is required.  Epps, 126 
F.3d. at 1468.  Further, in determining whether a claim is 
well grounded, the supporting evidence is presumed to be true 
and is not subject to weighing.  King v. Brown, 5 Vet. App. 
19, 21 (1993).  

With regard to establishing a well-grounded claim, the second 
and third Epps and Caluza elements (incurrence and nexus 
evidence) can also be satisfied under 38 C.F.R. § 3.303(b) 
(1999) by (1) evidence that a condition was "noted" during 
service or during an applicable presumption period; (2) 
evidence showing post service continuity of symptomatology; 
and (3) medical or, in certain circumstances, lay evidence of 
a nexus between the present disability and the post service 
symptomatology.  Savage v. Gober, 10 Vet. App. 488, 495-97 
(1997).  

Symptoms, not treatment, are the essence of any evidence of 
continuity of symptomatology.  Savage, 10 Vet. App. at 496.  
Moreover, a condition "noted during service" does not 
require any type of special or written documentation, such as 
being recorded in an examination report, either 
contemporaneous to service or otherwise, for purposes of 
showing that the condition was observed during service or 
during the presumption period.  Id. at 496-97.  However, 
medical evidence is required to demonstrate a relationship 
between the present disability and the demonstrated 
continuity of symptomatology unless such a relationship is 
one as to which a lay person's observation is competent.  Id. 
at 497.  

Under the provisions of 38 C.F.R. § 3.303(b), chronic disease 
shown as such in service (or within the presumptive period 
under § 3.307) so as to permit a finding of service 
connection, subsequent manifestations of the same chronic 
disease at any later date, however remote, are service 
connected, unless clearly attributable to intercurrent 
causes.  This rule does not mean that any manifestation of 
joint pain, any abnormality of heart action or heart sounds, 
any urinary findings of casts, or any cough, in service will 
permit service connection of arthritis, disease of the heart, 
nephritis, or pulmonary disease, first shown as a clearcut 
clinical entity, at some later date.  For the showing of 
chronic disease in service there is required a combination of 
manifestations sufficient to identify the disease entity, and 
sufficient observation to establish chronicity at the time, 
as distinguished from merely isolated findings or a diagnosis 
including the word "Chronic."  When the disease identity is 
established (leprosy, tuberculosis, multiple sclerosis, 
etc.), there is no requirement of evidentiary showing of 
continuity.  Continuity of symptomatology is required only 
where the condition noted during service (or in the 
presumptive period) is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately 
questioned.  When the fact of chronicity in service is not 
adequately supported, then a showing of continuity after 
discharge is required to support the claim.

The chronicity provision of § 3.303(b) is applicable where 
evidence, regardless of its date, shows that a veteran had a 
chronic condition in service or during an applicable 
presumption period and still has such condition.  Such 
evidence must be medical unless it relates to a condition as 
to which, under the Court's case law, lay observation is 
competent.  If the chronicity provision is not applicable, a 
claim may still be well grounded or reopened on the basis of 
§ 3.303(b) if the condition is observed during service or any 
applicable presumption period, continuity of symptomatology 
is demonstrated thereafter, and competent evidence relates 
the present condition to that symptomatology.  Savage v. 
Gober, 10 Vet. App. 488, 498 (1997).

The Court has elaborated that the second and third Caluza 
elements may also be satisfied under 38 C.F.R. § 3.303(b) 
(1998), by the submission of (a) evidence that a condition 
was "noted" during service or during an applicable 
presumption period; (b) evidence showing post-service 
continuity of symptomatology; and (c) medical or, in certain 
circumstances, lay evidence of a nexus between the present 
disability and the post-service symptomatology.  Savage v. 
Gober, 10 Vet. App. at 495-97. However, even under this 
regulation, medical evidence is required to demonstrate a 
relationship between a present disability and the continuity 
of symptomatology demonstrated if the condition is not one 
where a lay person's observations would be competent.  
Clyburn v. West, 12 Vet. App. 296, 302 (1999).

Service Connection for Arthritis.

A veteran is presumed to be in sound condition when examined 
and accepted into service, except for defects, infirmities, 
or disorders noted at the time of examination for acceptance 
and enrollment into service, or if clear and unmistakable 
evidence demonstrates that the injury or disease existed 
before acceptance or enrollment and was not aggravated by 
such service.  38 U.S.C.A. § 1111 (West 1991).  

At the time of preinduction examination in May 1970, no 
complaints or abnormal findings were made with regard to 
arthritis.  

On December 9, 1970, a private physician stated the veteran 
had been seen by him on that date complaining of a painful 
right knee.  A history of recurrent redness, swelling, and 
pain in the joint was noted.  Analgesics were given and the 
veteran was advised to have a complete work-up.  

On December 14, 1970, the veteran was accorded an orthopedic 
consultation regarding his right knee.  He had had 
intermittent redness, swelling, and pain in the right knee 
for the past year.  He had been seen at a hospital in June 
1969 and was then seen by the aforementioned physician in 
December 1970.  It was recommended that he have a complete 
work-up.  He reported that his hands bothered him 
occasionally and that his left knee bothered him on one 
occasion.  

On examination at that time there was a full range of motion 
of the right knee with no heat, effusion, motion restriction, 
laxity, or other abnormality.  An X-ray study of the knee was 
interpreted as being negative.

At the time of an outpatient visit in May 1971, the veteran 
was seen for follow-up consultation regarding his right 
ankle.  An impression was made of resolved tendinitis.  He 
was returned to duty.  

In July 1971 he was again seen for a complaint of right ankle 
pain after heavy lifting and standing for long periods.  He 
complained the ankle was now swollen.  He had been having 
tightness in the knees bilaterally on occasion.  Findings 
included tenderness of the right ankle.  There was a full 
range of motion.  The knees were negative.  The impression 
was chronic "left" ankle tendinitis, with several episodes 
of joint effusion and pain.  An impression was also made of 
arthritis of unknown etiology.  

X-ray studies of the knees done at that time were normal.  
Studies of the ankles showed small lucent defects 
superimposed over the distal right tibia and fibula.  These 
probably represented artifacts.  However, the examiner 
recommended follow-up films for further evaluation.  The 
study was described as negative otherwise.

In September 1971 the veteran was seen for complaints of 
occasional pains of the right ankle, the fingers, and left 
shoulder.  Notation was made of synovial thickening of the 
fingers.  An impression was made of arthralgia.  

In October 1971 he was seen for complaints of trouble with 
the right ankle and both hands.  It was noted he had been on 
various medications for possible arthritis for the past year.  
Later in October 1971 he was seen for a recurrence of 
tendinitis of the right ankle.  On October 27, 1971, he was 
placed on profile status because of arthritis of unknown 
etiology in both the ankles, the elbows, and the knees.  

In early November 1971 he complained that the right ankle 
still hurt.  An impression was made of Achilles tendinitis.  
When he was seen for follow-up several days later in November 
1971, he complained the ankle was still causing pain, but was 
now better.  On examination the ankle was not tender and 
there was no effusion.  The impression was resolving 
tendinitis.  He was returned to duty.  

In December 1971 he was seen for a complaint of pain in the 
left ankle.  An impression was made of a minimal sprain.  

At the time of an outpatient visit in December 1971, he 
complained of arthritis involving the right ankle, the right 
elbow, and both hands.  The examiner indicated this was 
sounding more and more like early rheumatoid arthritis.  

In early January 1972, he was seen for complaints of pain in 
the right foot and pain in the left hand.  The impression was 
migratory arthritis.  

The record shows the veteran was placed on temporary profile 
status from January to February 1972 because of what was 
reported as arthritis of unknown etiology.  

He was also placed on temporary profile status from April to 
May 1972 because of arthritis of unknown etiology.

At the time of an outpatient visit in May 1972, notation was 
made of arthritis involving the right ankle.  There was 
minimal swelling of the ankle.  There was no tenderness and 
only minimal heat.  

At the time of separation examination in June 1972, no 
complaints were identified.  The veteran indicated that "I 
feel my health is o.k."  Clinical examination was entirely 
normal and it was stated there were no defects or diagnoses.  

Evidence of record reflects that the veteran was hospitalized 
in May 1974 following involvement in a truck accident.  He 
stated he had had no previous surgery.  He indicated his 
health had been good.  Inventory of systems was not 
contributory to present illness and did not reflect any 
chronic diseases.  He sustained a compound comminuted 
fracture of the right tibia and fibula.  There was no 
reference to arthritis of any sort.  

The veteran was seen by a private physician in February 1975.  
It was noted he had first been seen in August 1974 
complaining of pain in the neck, the low back, the wrist, and 
the right leg resulting from an automobile accident in May 
1974.  X-ray studies in September 1974 showed a tibial 
fracture.  Cervical spine X-ray studies done in December 1974 
showed general flattening of the normal lordotic curve.  
Studies also showed loss of joint spaces from degenerative 
changes.  

Also of record are statements made in 1975 by the examiner.  
In an August 1975 communication the physician stated that 
when he saw the veteran that month, about 15 months after the 
vehicular accident, the veteran complained that his right leg 
hurt at the end of each day.  Also, neck pain was reported as 
constant.

The subsequent medical evidence includes private medical 
records showing hospitalization of the veteran in June 1991 
for an acute myocardial infarction.  No mention was made in 
the hospital records of arthritis.  Notation was made on 
examination during hospitalization that the extremities 
showed no clubbing, cyanosis, or edema.  

The subsequent medical evidence includes the report of a VA 
outpatient visit in November 1996.  No medical records were 
available for review.  The veteran stated that he had had 
joint and muscle pain since 1970.  He claimed he had been 
told he had arthritis.  He was given an assessment of 
multiple joint arthritis.  He was referred to the 
rheumatology clinic.  

The veteran was seen at a private health clinic in February 
1997 for a chief complaint of arthritis.  It was noted he had 
recently been diagnosed with rheumatoid arthritis seven weeks 
previously by VA.  The veteran recalled that his arthritis 
began in the early 1970's with the problems he had had in 
service.  He claimed that intermittently, he was managed with 
nonsteroidal anti-inflammatories.  He had basically been 
asymptomatic during the 1980's.  The arthritic problems began 
again after 1991.  He stated that in December 1996 he became 
crippled from this and this was the reason he consulted VA.  
He recalled that the major joints that were causing the 
problems were his fingers and hands, his elbows, his 
shoulders, the knees, the ankles, and the heels.  

Diagnoses at the health clinic in March 1998 included 
rheumatoid arthritis, history of coronary artery disease, and 
hypertension.  

Analysis

Arthritis is a chronic disease.  38 C.F.R. §§ 3.307, 3.309.  
Thus if the disease were shown in service so as to permit a 
finding of service connection, subsequent manifestations of 
the same chronic disease at any later date no matter how 
remote, would be service connected, unless clearly 
attributable to intercurrent causes.  Where the fact of 
chronicity in service is not adequately supported then a 
showing of continuity after discharge is required to support 
the claim.  38 C.F.R. § 3.303(b).

In this case the veteran was suspected on several occasions 
of having various forms of arthritis in service.  A diagnosis 
of arthritis was never confirmed by laboratory or X-ray 
studies, and the affected joints appear to have changed over 
time.  Thus, the Board finds that the fact of chronicity in 
service is not adequately supported.

It does not appear that the veteran has reported a continuity 
of symptomatology since service, and the record shows no 
findings referable to arthritis until after a truck accident 
several years after service.  While there have been current 
findings of arthritis, there is no competent evidence of a 
nexus between the current findings and those reported in 
service.  Even if it could be found that there was a 
continuity of symptomatology, there is no competent evidence 
linking that continuity to a current diagnosis.

Generally, while his statements are acceptable to show the 
occurrence of problems during service, he is not competent to 
prove a matter requiring medical expertise, such as a 
diagnosis or an opinion as to medical causation.  See 
Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992).  

In this case, the veteran is not competent to provide a 
medical diagnosis and associate it with his active service.  
There is no medical opinion of record attributing any 
rheumatoid arthritis at the present time to the veteran's 
active service back in the early 1970's.  The veteran has 
been seen in the years following service for a number of 
problems and no health care professional has associated the 
recently diagnosed rheumatoid arthritis to his active 
service.

In the absence of the necessary nexus evidence the claim is 
not well grounded and must be denied.  Because the claim is 
not well grounded, VA is under no further duty to assist him 
in developing facts pertinent to the claim.  38 U.S.C.A. 
§ 5107(a).  


Service Connection for a Disability Resulting
from Reported Plague Immunization.

A review of the service medical records is without reference 
to the veteran having been given immunization from getting 
the plague.  As mentioned above, at the time of separation 
examination in June 1972, the veteran himself stated that he 
felt his health was all right.  Further, several days later 
in June 1972 he stated that to the best of his knowledge, 
since the separation examination there had been no change in 
his medical condition.  There is no evidence of record, 
either during service or post service, of the veteran having 
sustained any kind of reaction from any shot he was given in 
service for any purpose.  

In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court 
noted that Congress specifically limited entitlement for 
service-connected disease or injury to cases where a disease 
or injury had resulted in a disability.  In the absence of 
proof of a present disability, there can be no valid claim.  
In Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992), the 
Court held that the failure to demonstrate that a disability 
is currently manifested constitutes failure to present a 
plausible or well-grounded claim.  See Chelte v. Brown, 
10 Vet. App. 268, 271 (1997) (requiring the current 
disability be shown to a compensable degree).  

The veteran's assertion that he had a disability resulting 
from a plague immunization given him during service is 
insufficient to find his claim well grounded.  The Court has 
held that, where a question is factual in nature, that is, 
whether an incident or injury occurred in service, competent 
lay testimony, including the veteran's own statements, may 
constitute sufficient evidence to establish a well-grounded 
claim; however, if the determinative issue is one of medical 
etiology, or medical diagnosis, competent medical evidence 
must be submitted to make the claim well grounded.  See 
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The 
undersigned is not arguing that the veteran did not receive 
an immunization shot for the plague.  However, there is no 
showing that any kind of disease entity developed as a result 
of the reported immunization.  

Because the claim is not well grounded, VA is under no 
further duty to assist the veteran in developing facts 
pertinent to the claim.  38 U.S.C.A. § 5107(a).  


ORDER

Service connection for arthritis is denied.  

Service connection for a chronic disability resulting from 
reported plague immunization is denied.  


REMAND

With regard to the claim for a permanent and total disability 
rating for pension purposes, the Court has recently held that 
a claim for pension is well grounded where the veteran had 
qualifying wartime service, he has completed the VA pension 
application as to his income, he may have the requisite total 
disability rating when all of his nonservice-connected 
disabilities are properly evaluated, there is plausible 
evidence of record that he has had to resign employment due 
to health problems, and there is evidence that he receives 
some State-sponsored assistance.  Vargas-Gonzalez v. West, 
12 Vet. App. 321, 218 (1999).  The Court has also held that 
the RO must identify all disabilities which the veteran 
currently has, determine whether they are permanent in 
nature, and find a schedular evaluation for each of them 
under the VA's Schedule for Rating Disabilities, and discuss 
the diagnostic codes used in the denial of the pension claim.  
Roberts v. Derwinski, 2 Vet. App. 387, 389 (1992); see also 
Vargas-Gonzalez v. West.

Received in March 1997 were copies of medical evidence used 
by the Social Security Administration indicating the veteran 
had been awarded benefits from 1974 to January 1976.  

Of record is a September 1997 deferred rating decision 
indicating that the Social Security Administration reply 
which was received in March 1997 did not include medical 
records which were presented when benefits were awarded in 
1994.  These records were to be enclosed.  

Of record is an April 1998 communication from the Department 
of Health and Human Services indicating that all medical 
records had been submitted in 1998.  There is no 
determination of record as to what the RO decided to do with 
regard to the claim for nonservice-connected pension 
benefits.  

In view of the foregoing, the Board is of the opinion that 
additional development is indicated and this portion of the 
case is REMANDED for the following:

1.  The RO should request that the 
veteran furnish information as to any 
medical or psychiatric treatment he has 
received since March 1998.  The RO should 
take all necessary steps to obtain those 
records, as well as ensuring that all 
records from the Social Security 
Administration pertaining to the 
veteran's claim for benefits have been 
sought.

2.  The RO should schedule the veteran 
for a general medical examination.  The 
examiner should review the claims folder 
prior to completing the examination.  A 
comprehensive report should be compiled 
considering the nature and extent of all 
disabilities found to be present, 
including heart disease, relative 
arthritis, and hypertension.  The 
veteran's complaints and symptomatology 
should be noted and evaluated, and 
clinical symptoms and manifestations 
should be recorded in detail.  The 
examiner is requested to comment on how 
each disability identified impacts on the 
veteran's employability.  The complete 
rationale should be given for all 
opinions and conclusions reached.  

3.  The RO should then readjudicate the 
question of the veteran's entitlement to 
a permanent and total disability rating 
for pension purposes.  All disorders 
found should be assigned a disability 
rating.  Then, a combined rating should 
be calculated.  The question of the 
veteran's entitlement to a permanent and 
total disability rating for pension 
purposes should be considered under all 
pertinent provisions of 38 C.F.R. 
§§ 4.15, 4.16, and 4.17.  If the 
requirements are not met, the RO should 
consider whether a permanent and total 
disability rating may be assigned under 
the provisions of 38 C.F.R. 
§ 3.321(b)(2).

Thereafter, if the benefit sought on appeal is not granted to 
the veteran's satisfaction, the RO should furnish the veteran 
and his representative with a supplemental statement of the 
case and provide them with a reasonable period of time for 
response.  Thereafter, the case should be returned to the 
Board for final appellate review, if otherwise noted.  By 
this REMAND, the Board intimates no opinion as to any final 
outcome warranted.  No action is required of the veteran 
until he is notified by the RO.  

The veteran has the right to submit additional evidence and 
argument on the matter the Board has remanded to the RO.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).  The veteran 
is advised that failure to report for the examination 
requested in this remand may have adverse consequences on his 
claim as the information requested on the examination 
addresses questions of symptomatology that are vital to his 
claim.  38 C.F.R. § 3.655 (1999); Connolly v. Derwinski, 1 
Vet. App. 566 (1991).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).  
In addition, VBA's Adjudication Procedure Manual, M21-1, Part 
IV, directs the ROs 
to provide expeditious handling of all cases that have been 
remanded by the Board and the Court.  See M21-1, Part IV, 
paras. 8.44-8.45 and 38.02-38.03.



		
	Mark D. Hindin
	Member, Board of Veterans' Appeals