Citation Nr: 0809707 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-24 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for herniated nucleus pulposus, lumbar spine, initially evaluated as 10 percent disabling from February 1, 2004, and 20 percent disabling from May 6, 2005. 2. Entitlement to an initial rating higher than 10 percent for hypertension. 3. Entitlement to an initial compensable rating for ganglion cyst of left wrist, postoperative. 4. Entitlement to an initial compensable rating for left elbow dislocation. 5. Entitlement to an initial compensable rating for mallet finger of right little finger. 6. Entitlement to an increased rating for patellar tendonitis, left, initially evaluated as noncompensable from February 1, 2004, and 10 percent disabling from November 8, 2005. 7. Entitlement to an increased rating for gout, initially evaluated as noncompensable from February 1, 2004, and 20 percent disabling from February 21, 2006. 8. Entitlement to an initial compensable rating for a healed scar of the scalp due to removal of a nevus. 9. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension and herniated nucleus pulposus, lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The veteran served on active duty from June 1980 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2004 and October 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The prior decision granted service connection for several disabilities, in regard to which the veteran then appealed from the assigned initial ratings for these conditions. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In the subsequent decision the RO, in part, denied a claim for service connection for sleep apnea, including as secondary to hypertension. The issue was later expanded through a September 2006 supplemental statement of the case (SSOC) to include as the basis of entitlement a secondary relationship to service-connected herniated nucleus pulposus, lumbar spine. While the appeal was pending, an October 2005 RO rating decision increased from 10 to 20 percent the assigned rating for the veteran's low back disorder, and also granted a separate 10 rating for left-sided L5 radiculopathy due to that condition, both effective from May 6, 2005. A September 2006 decision increased the evaluations for gout from 10 to 20 percent, effective February 21, 2006, and patellar tendonitis, left, from 0 to 10 percent, effective November 8, 2005. The veteran has continued the appeal by seeking a higher level of compensation. See AB v. Brown, 6 Vet. App. 35, 39 (1993). For the reasons indicated, the Board will decide the claim for an initial compensable rating for mallet finger deformity of the right little finger. The remaining claims on appeal, however, 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. VA will notify the veteran if further action is required on his part concerning these claims. FINDINGS OF FACT 1. The veteran has been properly apprised of the additional evidence required to substantiate the claim being decided, and the mutual responsibility between himself and VA to obtain that information. Furthermore, VA has fulfilled its duty to assist him in obtaining evidence relevant to the disposition of this matter. 2. The current assigned noncompensable initial rating for mallet finger of right little finger represents the maximum assignable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5230 for limitation of motion of the ring or little finger. There is no additional indication of compensable symptomatology under other applicable rating criteria, including pertaining to ankylosis of the little finger. CONCLUSION OF LAW The criteria for an initial compensable rating for mallet finger of the right little finger are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5230 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002), was signed into law effective November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), which held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In furtherance of the requirement that a claimant for disability compensation is afforded claim-specific notice pertaining to the benefit he intends to establish, the veteran has been appropriately informed as to the procedures for the development of the claim addressed in this decision. Based upon the issuance of an August 2005 VCAA notice correspondence, May 2005 statement of the case (SOCs) and October 2005 SSOC, the criteria for satisfactory notice set forth under the Pelegrini II decision have effectively been met. Preliminarily, the August 2005 notice letter explained the general requirements to substantiate the claim under consideration. The SOC provided substantive discussion of the evidence required, with citation to the applicable regulations. The above correspondence further described whose responsibility it was, VA's or the veteran himself, to obtain additional evidence. Finally, this correspondence requested that the veteran provide any other pertinent evidence or information in his possession. The veteran has received notification of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, through correspondence from the RO dated in March 2006 informing him of the holding in the Dingess/Hartman decision. He has therefore received detailed notice concerning both the disability rating and effective date elements of the claim. The Court's decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), further requires that VA notify the claimant that, to substantiate a claim for an increased disability rating: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, while the notice information provided did not necessarily meet the specificity requirements of the Vazquez holding, the veteran was otherwise notified of the procedures for determining a disability rating. The May 2005 SOC set forth the applicable rating criteria, and August 2005 correspondence requested he provide medical and competent lay evidence indicating that the disability had increased in severity. The claim was then readjudicated in the October 2005 SSOC. Statements received from him during this period reflect awareness of the rating criteria. Thus, any deficiency in notice was nonprejudicial to the claimant. See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007). In any event, the current noncompensable rating represents the maximum assignable schedular evaluation under the rating criteria, and for this reason also the absence of more detailed notice did not constitute harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). The relevant notice information must also have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Here, the August 2005 letter did not meet this timeliness standard. The RO has nonetheless taken measures to appropriately evaluate the claim such that any defect in the timing of the notice did not have a detrimental impact upon the adjudication of it. Following the notice letter, the veteran had an opportunity to respond with additional evidence prior to the September 2005 SSOC continuing the denial of the claim. During this timeframe, further treatment records were obtained on his behalf, and he provided a June 2005 statement. Thus, regardless of the timing of the VCAA notice, the veteran has been afforded "a meaningful opportunity to participate effectively in the processing of his claim by VA." See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), reversed and remanded, 444 F.3d 1328 (Fed. Cir. 2006), affirmed, 20 Vet. App. 537 (2006), reaffirmed, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, the RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claim, including obtaining service treatment records, and records of post-service treatment at military facilities. The RO has also arranged for him to undergo a VA examination in connection with his claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran has submitted copies of private treatment records and several personal statements. He declined the opportunity to testify at a hearing in support of the claim. 38 C.F.R. § 20.700. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will address the merits of the claim. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. See Fenderson, 12 Vet. App. at 125-26. To determine the severity of musculoskeletal disabilities which are at least partly rated on the basis of range of motion, VA must consider the extent the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of his pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when his symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), citing 38 C.F.R. §§ 4.40, 4.45, 4.59. In addition to these types of symptoms, other considerations include whether there is swelling, deformity or atrophy from disuse. 38 C.F.R. § 4.45 (2007). Where there exists any limitation of motion, of the ring or little finger, a noncompensable rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5230. Additionally, the criteria for evaluating ankylosis of individual digits provides for a noncompensable percent disability rating due to the presence of ankylosis of the ring or little finger, whether unfavorable or favorable. Diagnostic Code 5227. A note to that criteria further provides that VA can also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. The relevant background history indicates that in a March 2004 rating decision, the RO granted service connection for mallet finger of the right little finger, with an initial noncompensable rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5230. The basis for this award was that the veteran sustained in-service trauma to the right little finger during an October 1987 injury playing football. The primary source of evidence for evaluative purposes consists of a September 2003 VA general medical examination, which observed in relevant part, the veteran's report that there was no fracture in service, but the finger nonetheless did not straighten out and heal properly. He stated he was told the tendon had been damaged and it would be a problem for him. The injury itself however did not particularly interfere with his activities. Physical examination revealed that the veteran was capable of approximating all fingers to the thumbs of the bilateral hands. He was further able to approximate the fingers to the median crease without difficulty. There was deformity of the distal portion of the right little finger. The overall diagnostic impression was of right mallet finger of the little finger, evident on assessment, with good range of motion and ability to complete approximation. When objectively considering these findings in view of the preceding criteria, the current assigned noncompensable evaluation continues to provide the best approximation of the degree of severity of a right little finger disorder. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5230, the only assignable rating is that of a noncompensable evaluation under the rating schedule. This evaluation applies where there exists any limitation of motion. In any event, by all indication the veteran generally retained a substantial degree of mobility in the affected right finger, and there is no suggestion in any medical report that following the September 2003 examination his condition significantly worsened to a measurable degree. Likewise, since a noncompensable rating is the single evaluation provided under the rating criteria, more detailed findings as to functional loss due to pain, weakness, flare- ups and other factors are not required, in accordance with the Court's holding in Deluca v. Brown. See also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (where a claimant is already receiving the maximum disability rating available based on manifestation of limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The Board further points out that there is no indication that the condition under review should be evaluated as, or analogous to ankylosis, under Diagnostic Code 5227. Generally, a noncompensable rating would still apply under this diagnostic code. It warrants mention that there is no finding as to interference of the mobility of other digits of the hand from the right little finger disorder, which might otherwise correspond to a compensable rating, per a note to the rating criteria. Hence, the current noncompensable initial rating for mallet finger condition remains the correct evaluation under the rating schedule. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, the veteran has not shown that his service-connected right finger disorder has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular rating, or necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to refer this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the claim for an initial compensable rating for mallet finger of the right little finger must be denied. An increase in degree of compensable symptomatology in this disorder since the original grant of service connection is not shown as to warrant a "staged rating" for the condition, per the Fenderson decision. The preponderance of the evidence is against the claim for increase, so the benefit-of-the-doubt doctrine does not apply. 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an initial compensable rating for mallet finger of right little finger is denied. REMAND On review of the current record, further evidentiary development is necessary prior to adjudicating the remaining increased rating claims that are on appeal, as well as the matter of entitlement to service connection for sleep apnea. Of particular significance for the issues on appeal is that the only detailed source of information for rating purposes is a September 2003 VA general examination. This initially requires obtaining a more comprehensive VA examination to ascertain the severity of various service- connected musculoskeletal disorders, in connection with claims for higher initial ratings for herniated nucleus pulposis of the lumbar spine, left elbow dislocation, left patellar tendonitis, and gout. Since the September 2003 VA examination, the veteran has obtained treatment from military health clinics for continuing low back pain, with left lower extremity radiculopathy, and an episode of gout in February 2006. Given the more than four-year interval since the last examination on any of the above conditions, more contemporaneous findings are needed. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) ("[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination to fulfill its duty to assist"). Significant, also, the applicable criteria under the rating schedule for evaluating each of these service-connected disorders includes as a component limitation of motion in the affected joint or joints. (While under 38 C.F.R. § 4.71a, Diagnostic Code 5017, gout is evaluated by analogy to rheumatoid arthritis at Diagnostic Code 5002, which sets forth rating criteria for active disease process based on severity of symptom exacerbations, that disease may alternatively be evaluated according to chronic residuals, taking into account limited mobility of specific joints involved.) The previous examination did not address whether motion was any further compromised from functional loss due to pain, weakness, or other factors. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45. For these reasons, a VA examination by an orthopedic specialist is in order. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007) (VA will provide an examination or obtain a medical opinion based upon a review of the evidence of record if it is necessary to decide the claim). In regard to claims for higher ratings for ganglion cyst of left wrist, postoperative, and healed scar of the scalp due to removal of a nevus, further development is also warranted. The ganglion cyst has been rated based on residual scarring, according to the September 2003 examiner's finding of healed cars over the left hand. While the medical evidence does not otherwise confirm whether there is residual disability besides scarring, the veteran maintains complaints of periodic wrist soreness. The Board notes that applicable rating criteria also permits when warranted evaluation of a scar based on functional limitation. See 38 C.F.R. § 4.118, Diagnostic Code 7805. In view of the veteran's complaints and based on the time that has elapsed since the last examination, a new evaluation is warranted. There is likewise need for a more comprehensive assessment of the scar of the left occipital scalp region, to apply Diagnostic Code 7800, for scars of the head, face or neck, so that the veteran's current symptoms may be fully and fairly evaluated. Thus, a dermatological examination should be scheduled to evaluate the above conditions under the pertinent rating criteria. As for the veteran's service-connected hypertension, the September 2003 examination report indicates that on objective evaluation blood pressure readings were 150/120 (systolic/diastolic), 154/126 and 150/118, taken three separate times. The record reflects some more normalized measurements thereafter post-service at a military clinic, including 151/103 in March 2004, 170/102 in May 2005, and 163/101 in July 2005. However, another May 2005 reading was 158/110; the veteran had not taken blood pressure medication that morning, and was advised to do so and follow up on any continued diastolic pressure above 105. When seen in November 2005, blood pressure was 158/108. Under 38 C.F.R. § 4.104, Diagnostic Code 7101, hypertensive vascular disease is to be rated upon blood pressure readings, based on that which represents the predominant measurement. To establish the current prevailing level of severity of hypertension a more recent examination is required. Furthermore, in connection with each of these increased rating claims, the veteran should be provided with a supplemental notice letter that is consistent with the decision of the Court in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008) pursuant to which there exists a heightened notice obligation on the part of VA under the VCAA to a claimant attempting to establish entitlement to an increased rating for a service-connected disability. In addition, with reference to the claim for service connection for sleep apnea, to include as secondary to both service-connected hypertension and herniated nucleus pulposis, lumbar spine, the medical evidence confirms that the veteran has been diagnosed with sleep apnea. Specifically, a November 2005 outpatient report documents his complaint of symptoms of sleep apnea, and a problem with snoring for between 7 and 8 years. He stated that his spouse would notice he sometimes stopped breathing at night, and that his sleep was interrupted most of the time. Shortly thereafter, the report of a sleep study at a private facility revealed a diagnosis of obstructive sleep apnea, and recommended that the veteran initiate use of a continuous positive airways pressure (CPAP) device. In view of the chronic nature of sleep apnea and the it was diagnosed just two years after discharge from service, the Board finds that a VA examination and opinion is in order to determine whether there is a nexus between current sleep apnea and service. 38 U.S.C.A. § 5103A(d). Accordingly, these claims are REMANDED for the following action: 1. The RO should send the veteran a corrective VCAA notice letter under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159(b) (2007), that includes an explanation as to the specific information or evidence needed to establish an increased disability rating as outlined in the Court's decision in Vazquez-Flores. 2. The RO should also contact the veteran and request that he identify any additional health care providers, non-VA and VA, who have treated him for the service-connected disabilities under evaluation, or claimed sleep apnea, that are not already of record. Based upon his response, the RO should attempt to obtain relevant records from any identified treatment sources not previously contacted. 3. After all pertinent evidence has been obtained and associated with the claims file in connection with the development requested above, the RO should make the appropriate arrangements to schedule the veteran for a VA orthopedic examination. The claims folder must be made available for the examiner to review. In accordance with the latest AMIE worksheets for disorders of the musculoskeletal system the examiner is to provide a detailed review of the veteran's pertinent medical history, current complaints, and the nature and extent of his herniated nucleus pulposus of the lumbar spine, left elbow dislocation, left knee patellar tendonitis, and gout. A complete rationale for any opinions expressed must be provided. The examiner must offer specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disabilities under evaluation. If pain on motion is observed, the examiner must indicate the point at which pain begins. In addition, after considering the veteran's documented medical history and assertions, the examining physician must indicate whether, and to what extent, the appellant experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 4. The veteran should also undergo a VA dermatological examination. The claims folder must be made available for the examiner to review. In accordance with the latest AMIE worksheets for evaluating scars, the examiner is to provide a detailed review of the veteran's pertinent medical history, current complaints, and the nature and extent of a post-operative ganglion cyst of left wrist, and healed scar of the scalp due to removal of a nevus. It is requested that to the extent possible, photographic evidence be made available as to the healed scar of the scalp, as such was omitted from the evidence obtained on the last examination of record. 5. The RO should schedule the veteran for an examination pertaining to this claimed disorder. The claims folder must be made available for the examiner to review. Any tests deemed necessary should be accomplished. The VA examiner should confirm whether the veteran currently has sleep apnea. If present, the physician must address whether it is at least as likely as not, i.e., is there a 50/50 chance, that this disorder is causally related to his military service. The examiner should further indicate whether sleep apnea is etiologically related to service-connected hypertension or herniated nucleus pulposis, lumbar spine (including on the basis of chronic aggravation by a service-connected disability, and initial causation). A complete rationale must be provided for any opinion offered. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then she/he should indicate this. 6. The RO should review any medical examination report to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, the RO must implement corrective procedures at once. 7. Thereafter, the RO should readjudicate the claims of entitlement to higher initial ratings for a lumbar spine disorder, hypertension, post-operative ganglion cyst of the left wrist, left elbow dislocation, patellar tendonitis of the left knee, gout, and healed scar of the scalp, as well as for service connection for sleep apnea (including secondary to various service-connected disabilities). The RO should indicate its continued consideration as to whether staged ratings are available for the service-connected disabilities under evaluation. See Fenderson, 12 Vet. App. at 125-26. If the benefits are not granted, the veteran and his representative should be furnished with another SSOC and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2007). ______________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007). Department of Veterans Affairs