Citation Nr: 0619512 Decision Date: 07/05/06 Archive Date: 07/13/06 DOCKET NO. 01-06 279A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for chronic bronchitis. 2. Entitlement to service connection for a right shoulder disorder. 3. Entitlement to service connection for a bilateral disorder of the feet. 4. Entitlement to service connection for a bilateral disorder of the ankles. 5. Entitlement to service connection for dermatitis. 6. Entitlement to service connection for a bilateral disorder of the elbows. 7. Entitlement to initial increased ratings for cervical spine strain with spondylosis and degenerative disc disease, evaluated as 40 percent disabling from September 1, 1999 and 30 percent disabling from September 23, 2002. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION No separation document is of record, but the veteran apparently served from 1974 to 1999, including service in the Persian Gulf, with the initial period of his service being in the Air Force Academy. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision prepared in November 2000 and issued in December 2000 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in pertinent part, denied claims for service connection for chronic bronchitis, dermatitis, chronic bilateral foot pain, chronic bilateral ankle pain, a right shoulder disorder, and bilateral elbow tendonitis. The veteran apparently disagreed in March 2001. After the RO issued a statement of the case (SOC) in March 2001, the veteran's timely substantive appeal was received in July 2001. In July 2001, the veteran disagreed with the initial evaluation assigned for cervical spine disability. Following a rating decision issued in August 2003 which assigned increased evaluations for that disability, the veteran has not been issued the required statement of the case on this issue. This matter is the subject of REMANND, below. See Manlincon v. West, 12 Vet. App. 238 (1999) . In December 2003, service connection was granted for chronic prostatitis, carpal tunnel syndrome, right wrist, and carpal tunnel syndrome, left wrist, among other disorders. The veteran has not disagreed with any aspect of the December 2003 rating decision. The additional claims of entitlement to service connection for bronchitis, a bilateral disorder of the feet, and a bilateral disorder of the elbows are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The medical evidence establishes that the veteran sustained injuries to his right shoulder in service, and medical opinion links the current right shoulder rotator cuff tear and acromioclavicular joint arthrosis to his service. 2. The medical evidence establishes that the veteran does not have a current disorder of either ankle. 3. The medical evidence establishes that the veteran sought treatment for pruritis on several occasions in service, and a diagnosis of dermatitis was assigned in service, and medical opinion links the skin disorder treated during service to a current skin disorder, diagnosed as mummular eczema, even though that disorder was inactive at the time of VA examination. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder rotator cuff tear and acromioclavicular joint arthrosis have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2005). 2. The criteria for service connection for a right or left ankle disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2005). 3. The criteria for service connection for a skin disorder, diagnosed as mummular eczema, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to service connection for the disorders at issue. Preliminary Matters: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). 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) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the decision below is favorable to the veteran, with the exception of the denial of service connection for an ankle disorder, discussion of compliance with the VCAA with respect to the other claims is not required. In this case, the veteran's claim for service connection a bilateral ankle disorder was received prior to enactment of the VCAA, and the initial unfavorable rating decision was issued prior to the enactment of the VCAA. Following the October 2003 Board Remand, the AMC issued a March 2004 letter which advised the veteran of the enactment of the VCAA and some of the provisions of that act. The AMC advised the veteran of the criteria for establishing entitlement to service connection, advised the veteran of VA's responsibility to obtain records and assist the veteran in the development of the claim, advised the veteran of his responsibility to submit and identify evidence, and advised the veteran to submit any evidence relevant to the appeal, including insurance medical examinations, photographs, or statements from family and friends. The March 2004 letter also specifically asked him to submit any additional evidence or information he had pertaining to his claim. The Board finds that the March 2004 notice advised the veteran of each element of notice described in Pelegrini. The claim was thereafter readjudicated in October 2005, so the notice provided in March 2004 meets the requirements set forth in Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The veteran was afforded several VA examinations. Private and VA clinical records were obtained. The claim has been Remanded by the Board twice, and each of those Board remands has clearly advised the veteran of the evidence needed to substantiate his claim, as have the more than 10 rating decision, statements of the case, and supplemental statements of the case issued as part of this appeal, in addition to several letters issued in VA's continuing attempts to comply with the VCAA. Both the duty to assist the veteran and the duty to notify the veteran have been met. The Board finds that, if there is any defect in the notice or timing of the notice to the veteran of the provisions of the VCAA, that defect has not resulted in any prejudice to the veteran, who has, at this point, had nearly seven years since the claim was initially submitted in 1999 to present evidence and argument to support the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Although the VCAA notice referred to above does not specifically address the rating and effective date that may be assigned following a grant of service connection, any error in failing to notify the veteran regarding the rating or effective date is harmless error with respect to the claim which is denied in this decision because, with respect to claims that are denied, the issue of a rating or an effective date is moot. Law and regulations governing a claim for service connection In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131. In order for a claim to be granted, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the in service injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 18 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. In the absence of medical evidence of a current claimed disorder, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may also be granted where the evidence shows that a veteran had a chronic condition in service or during an applicable presumption period and still has the condition. 38 C.F.R. §§ 3.303(b); 3.307, 3.309. Arthritis is considered a chronic disorder for which service connection may be granted if diagnosed within the one-year presumptive period allowed. 1. Claim for service connection for a right shoulder disorder In his September 1999 claim for service connection for a shoulder disorder, the veteran contended that his shoulders were injured during a parachute landing. Service medical records reflect that the veteran complained of shoulder pain on several occasions, and varying diagnoses were assigned. At the time of VA examination conducted in May 2000, the examiner concluded that the veteran's right shoulder was normal, and the examiner stated that no diagnosis of a right shoulder disorder was confirmed. VA clinical records dated in March 2001, approximately 18 months after the veteran's service discharge, reflect a diagnosis of degenerative joint disease of the right shoulder. A private clinical statement dated in May 2001 includes an opinion that the veteran had sustained injuries to his shoulder in service, and that MRI was required to asses his chronic shoulder pain. VA outpatient treatment records dated in August 2001 reflect that a diagnosis of degenerative joint disease, both shoulders, was assigned. On VA examination conducted in August 2002, radiologic evaluation disclosed mild acromioclavicular joint arthrosis. A subsequent MRI (magnetic resonance imaging) examination in October 2002 disclosed a rotator cuff tear. The VA examiner who conducted a November 2002 review opined that the veteran's right shoulder disorder was related to his service injuries. There are two VA opinions of record, one favorable, one unfavorable. The favorable opinion is more persuasive, since it is based on clinical evaluation which includes an MRI. That examination is a more accurate diagnostic examination than the radiologic examination conducted at the time of the initial, unfavorable, VA examination. The August 2002 examiner reviewed the claims folder and medical records. Resolving any reasonable doubt in the veteran's favor, the Board concludes that the veteran is entitled to service connection for right shoulder rotator cuff tear and acromioclavicular joint arthrosis. 38 U.S.C.A. § 5107(b). 2. Claim for service connection for a bilateral disorder of the ankles In his September 1999 claim for service connection, the veteran stated he had injured his feet and ankles during jump school and while on jump status. The service medical records disclose no diagnosis of a chronic right or left ankle disorder. This evidence is unfavorable to the veteran's claim that he incurred a chronic ankle disorder in service. On VA examination conducted in May 2000, radiologic examinations of the left foot and of the right foot disclosed no abnormality. Although the veteran complained that he was unable to stand for more than 30 minutes, the examiner found no objective signs or symptoms of an ankle disorder. The examiner concluded that no diagnosis of an ankle disorder was confirmed. This evidence is unfavorable to the veteran's claim, since it tends to establish that no ankle disorder which may be presumed service connected was present within one year following the veteran's service discharge. In a private medical opinion dated in May 2001, C.N.B., MD, stated that the veteran had sustained injuries to his feet and ankles in service and that orthopedic examination was required to asses his chronic foot pain. In particular, Dr. B. opined that the May 2000 radiologic examination of the right ankle disclosed degenerative changes of the tibiotalar joint. Dr. B. indicated that more complete examination of the ankles, including MRI examination, was required. This evidence is unfavorable to the claim for service connection for a left ankle disorder. This evidence is favorable to the veteran's claim for service connection for a right ankle disorder, since the opinion indicates that an ankle disorder cannot be ruled out without further evaluation, and indicates that degenerative joint disease is present in the right ankle. In August 2001, the veteran sought treatment for pain on the bottom of his feet, and provided a history of five years of complaints of painful feet. A diagnosis of metatarsalgia was assigned. However, this treatment record is devoid of evidence that the veteran complained of pain in either ankle, and no diagnosis of an ankle disorder was assigned, although a disorder manifested by foot pain was diagnosed. This evidence is unfavorable to the veteran, since this examination of the feet is devoid of evidence of an ankle disorder. An October 2002 MRI of the right ankle discloses that there was no osseous abnormality and there was normal signal pattern for tendons and ligaments. This evidence is extremely unfavorable to the veteran's claim, since it is inconsistent with the favorable private opinion rendered by Dr. B. in May 2001, and is extremely unfavorable to the veteran's claim, since it establishes that no abnormality of either ankle was present. In November 2002, the VA examiner noted that the current diagnosis of arthritis of the right wrist and ankle was based on clinical findings "as well as also MRI findings." The examiner opined that the cause of the arthritis was "related to his service injuries." However, since this opinion is inconsistent with the October 2002 MRI of the right ankle, which disclosed no abnormality of the right ankle, it is not credible or persuasive, and the Board finds that this opinion, although favorable, is of no probative weight. VA outpatient treatment notes dated in February 2003, January 2004, and June 2005 which discuss examination of the feet are devoid of evidence of complaints of ankle pain and are devoid of evidence of diagnosis or treatment of an ankle disorder. In argument dated in May 2006, the veteran's representative contends that remand of this claim for review under statutory and regulatory provisions governing undiagnosed illness is required. See 38 U.S.C.A. § 1117. Although the veteran served in the Persian Gulf, and is entitled to service connection if he has an undiagnosed illness, the Board does not agree that the facts support a contention that an undiagnosed illness is presented in this case. Compensation may be paid to a Persian Gulf veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more before December 31, 2006 following such service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Service connection may be granted when the evidence establishes: (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2006; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. In this case, service connection has been granted to spinal disabilities. The evidence establishes that the spinal disabilities result in pain radiating down the veteran's legs, at time to his feet. The medical evidence establishes that a medical diagnosis of flexible pes cavus, with associated foot pain, has been assigned. In order for the veteran's subjective complaints of ankle pain to constitute a "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117, the evidence must show that there are objective indications of a chronic disability, which must be manifested by one or more signs or symptoms, to include, but not limited to, fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychologic signs or symptoms, among other possible symptoms. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. In this case, the veteran does not contend that he has any symptom other than ankle pain of the disorder which the representative contends is an undiagnosed illness. To the extent that the veteran's representative contends that the veteran's complaints of ankle pain represent an undiagnosed disorder, the Board notes that those complaints of pain of pain are not objectively confirmed by routine medical entries. The evidence does not support a finding that there are objective indicators of an undiagnosed ankle disorder other than the subjective complaints of pain. The evidence does not support a finding that the veteran's subjective complaints of ankle pain are chronic. In the absence of objective indicators of an undiagnosed illness, the Board finds that Remand for medical examination to determine whether the veteran has an undiagnosed disorder manifested by ankle pain is not required. The October 2002 MRI, in fact, establishes that a joint disorder of the ankle is not present. Although the veteran has complained of ankle pain, pain is not, in and of itself, a disorder. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). There is no clinical diagnosis of an ankle disorder of either ankle in service. Although one provider, Dr. B., stated that there was radiologic evidence of a degenerative disorder of the right ankle on radiologic examination conducted in May 2000, this opinion is contradicted by the report of MRI conducted in October 2002, which discloses that there is no abnormality of the right ankle. The objective evidence is against the claim. After comparing the weight of the favorable evidence to the weight of the unfavorable evidence, the Board concludes that the preponderance of the evidence is against the claim. The claim for service connection for an ankle disorder of either ankle is denied. 4. Claim for service connection for dermatitis The veteran's service medical records disclose that he was treated for a skin disorder in service on several occasions, and a diagnosis of dermatitis was assigned. This evidence is favorable to the claim. On VA examination conducted in May 2000, the examiner stated that there were no objective findings of a skin disorder and that no diagnosis of a skin disorder was confirmed. This evidence is unfavorable to the claim. On VA examination conducted in August 2002, the examiner concluded that no dermatitis was active, but that there were objective findings consistent with a skin disorder. The examiner assigned a diagnosis of mummular eczema. This evidence is favorable to the claim. Since the VA examiner concluded that there was a current skin disorder, although inactive, that was related to the veteran's service, this evidence, together with the evidence that the veteran was treated for a skin disorder in service, establishes that a grant of service connection for a skin disorder, currently diagnosed as mummular eczema, is warranted. ORDER The appeal for service connection for right shoulder rotator cuff tear and acromioclavicular joint arthrosis is granted. The appeal for service connection for a bilateral disorder of the ankles is denied. The appeal for service connection for a skin disorder, diagnosed as mummular eczema, is granted. REMAND The veteran seeks service connection for bronchitis. He has already been granted service connection for sinusitis. VA outpatient clinical records dated from 2001 through June 2005 reflect that diagnoses of allergic rhinitis and cough due to post-nasal drip (PND) were assigned, and that a diagnosis of bronchitis was ruled out. In contrast, the examiner who conducted an August 2002 VA examination assigned a diagnosis of bronchitis, manifested by a chronic cough. Further clinical evaluation is necessary to reconcile the assigned diagnoses. In addition, the veteran's initial claim of entitlement to service connection for a respiratory disorder should be clarified to determine whether that claim should be interpreted to include allergic rhinitis, if the veteran wishes to pursue service connection for that disorder. The veteran has been granted service connection for carpal tunnel syndrome. In his September 1999 claim for service connection for bilateral tendonitis of the elbows, the veteran contended that that he incurred an elbow disorder during service due to physical conditioning and flying. No elbow disorder was diagnosed at the time of VA examinations conducted in 2000 or 2002, but the examination reports do not reflect that the examiners specifically considered the veteran's history of treatment for an elbow disorder in service or provided specific examination of the elbows to determine whether a disorder was currently present. Additional medical development is required. Post-service VA treatment records establish that a bilateral foot disorder has been diagnosed. However, this disorder was not diagnosed within one year after the veteran's service discharge, nor is it a disorder for which presumptive service connection is authorized. Although the disorder has been diagnosed, no examiner has indicated whether or not the disorder was incurred during or is etiologically related to the veteran's service. Further clinical development is required. The veteran can speed up the progress of the Remand by identifying speedily and accurately any non-VA post-service clinical records he wants VA to review in connection with the claims on appeal, by responding to notices from the RO, and by reporting for scheduled VA examinations. As noted earlier, the veteran filed a notice of disagreement with the initial evaluation assigned for cervical spine strain with spondylosis and degenerative disc disease. Although the RO thereafter increased the ratings assigned, a statement of the case was never sent to the veteran. This claim must be remanded to allow the RO/AMC to provide the veteran with a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92. However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: 1. A corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), must be provided. The corrective notice must include an explanation as to the information or evidence needed to establish a disability rating, and an explanation as to the information or evidence needed to determine an effective date for a grant of service connection, if any of the claims for service connection at issue is granted, as outlined by the United States Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The veteran should be advised of alternative types of evidence which can be used to substantiate his claims of entitlement to service connection, including evidence that he had chronic bronchitis, a bilateral disorder of the feet, or a bilateral disorder of the elbows during service and chronically and continuously following service. He should again be afforded the opportunity to identify or submit any clinical or non-clinical records he believes would be relevant to the claims, including statements from individuals who observed those symptoms. The veteran should be advised that the most persuasive evidence would be evidence proximate to his service discharge, and evidence showing continuity of those symptoms. 3. The veteran's current VA clinical records, from June 2005 to the present, should be obtained and associated with the claims file. 4. The veteran should be afforded VA examination to determine whether the veteran currently has chronic bronchitis or a chronic cough. The claims folders should be made available to the examiner for review of pertinent documents therein in connection with the examination. Following examination of the veteran and review of the relevant service medical records disclosing respiratory system disorders, and post-service clinical records, including VA outpatient clinical records which assigned a diagnosis of post nasal drip and the report of an August 2002 VA examination which assigned a diagnosis of bronchitis, the examiner should state whether the veteran currently has chronic bronchitis, allergic rhinitis, or other respiratory disorder manifested by a cough. The examiner should provide an opinion as to the etiology of the veteran's chronic cough, if such symptom is present. The examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the veteran's current chronic cough, if present, and the medical disorder which causes that cough had its onset during the veteran's military service, was aggravated (permanently increased in severity beyond the natural progression) during the veteran's service, or is etiologically related to his service or any incident thereof. The examiner should provide a rationale for that opinion. 5. The veteran should be afforded VA examination to determine whether the veteran currently has a chronic bilateral disorder of the elbows or a chronic disorder of either elbow. The claims folders should be made available to the examiner for review of pertinent documents therein in connection with the examination. Following examination of the veteran and review of the relevant service and post- service records, including private post- service records which assigned a diagnosis of an elbow disorder, the examiner should state whether the veteran currently has a disorder of either elbow or of both elbows, and should assign a diagnosis for each elbow disorder present. The examiner should provide an opinion as to the etiology of each elbow disorder present. The examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the veteran has an elbow disorder or disorders which was/were incurred in service or is/are etiologically related to the veteran's service or any incident thereof. If no current elbow disorder was incurred in service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the veteran has an elbow disorder or disorders which is/are proximately due to or the result of a service-connected disability. The examiner should provide a rationale for each opinion. 6. The veteran should be afforded VA examination to determine the etiology of a bilateral disorder of the feet, diagnosed as flexible pes cavus. The claims folders should be made available to the examiner for review of pertinent documents therein in connection with the examination. Following examination of the veteran and review of the relevant service and post- service records, including post-service VA records which have assigned a diagnosis of a bilateral foot disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the veteran has a current foot disorder which was incurred in service or is etiologically related to the veteran's service or any incident thereof. If the examiner concludes that the veteran did not incur a current foot disorder in service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the veteran's current foot disorder was aggravated (permanently increased in severity beyond the natural progression) during service. The examiner should provide a rationale for each opinion. 7. Thereafter, the claims on appeal should be readjudicated and the veteran should be notified of that adjudication. If any benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case which addresses all of the evidence obtained. The veteran should be afforded an opportunity to respond. 8. The veteran and his representative should be provided a statement of the case as to the issue of entitlement to increased initial evaluations for cervical spine strain with spondylosis and degenerative disc disease. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs