Citation Nr: 0811880 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-09 214 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable rating for a left shoulder disability with bursitis prior to June 21, 2002. 2. Entitlement to an effective date earlier than September 7, 2002, for the grant of service connection for a right shoulder disability with bursitis, to include on the basis of clear and unmistakable error (CUE). WITNESSES AT HEARINGS ON APPEAL The veteran and R. L. ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from January 1968 to December 1969 and from September 1972 to May 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal of November 2004 and February 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In January 2005, the veteran testified before RO personnel. In December 2007, the veteran testified before the undersigned Acting Veterans Law Judge in Washington, D.C. At the hearing, the veteran submitted additional evidence directly to the Board. The veteran waived his right to have the agency of original jurisdiction (AOJ) consider the evidence in the first instance. 38 C.F.R. §§ 20.800, 20.1304(a) (2007). The Board accepts this evidence into the record on appeal. The Board notes that during the course of this appeal, the veteran has been represented by Disabled American Veterans and also by Eastern Paralyzed Veterans Association. The veteran has revoked his power-of-attorney with both service organizations and is currently unrepresented. As the appeal with respect to the veteran's claim for an initial compensable rating for left shoulder disability with bursitis prior to June 21, 2002 emanates from the veteran's disagreement with the initial noncompensable rating assigned following the grant of service connection, the Board has characterized that claim as a claim for a higher initial rating, in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). By way of history, in the above noted November 2004 rating decision, the RO granted service connection and assigned separate 20 percent evaluations for a left shoulder disability with bursitis and for a right shoulder disability with bursitis. The grants of service connection were both effective September 7, 2002. In December 2004, the veteran filed a notice of disagreement with the effective dates assigned for the grants of service connection for both the left shoulder and the right shoulder. In a February 2005 rating decision, the RO assigned an effective date of May 17, 1979 for the grant of service connection for a left shoulder disability with bursitis. The RO awarded a noncompensable (0 percent) rating from May 17, 1979 to September 7, 2002. The RO also denied an effective date earlier than September 7, 2002 for the grant of service connection for right shoulder disability with bursitis due to CUE in an October 1, 1979 rating decision. In April 2005 and June 2005, the veteran expressed disagreement with the February 2005 rating decision. Thereafter, in a March 2006 statement of the case, the RO awarded an effective date to June 21, 2002 for the award of a 20 percent rating for left shoulder disability with bursitis. The Board notes that a subsequent September 2006 supplemental statement of the case continues to identify the effective date of the 20 percent rating for left shoulder disability with bursitis as September 7, 2002. (The decision below addresses the veteran's claim for an effective date earlier than September 7, 2002, for the grant of service connection for right shoulder disability with bursitis, to include on the basis of CUE. The remaining issue on appeal will be discussed in the remand that follows this decision.) Finally, the Board notes that in a February 2006 VA Form 9 (Appeal to Board of Veterans' Appeals), the veteran argues that he is entitled to a "compensable bilateral shoulder condition with a 20 percent rating for each shoulder retroactive back to May 17, 1979. From this statement, the Board liberally infers a claim for an effective date earlier than September 7, 2002 for the award of a 20 percent rating for right shoulder disability with bursitis. Also, during his December 2007 hearing with the undersigned, the veteran testified that he believed his left and right shoulder disabilities with bursitis were more severe than the current 20 percent evaluation assigned for each disability. The Board infers from the veteran's testimony that he seeks higher ratings for his service-connected bilateral shoulder disability. As these noted issues have not been adjudicated by the agency of original jurisdiction (AOJ), they are not before the Board. Hence, they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On September 17, 2002 the RO received a statement from the veteran that constitutes an informal claim for service connection for a right shoulder disability. (The RO appears to have received the veteran's claim (via a Statement in Support of Claim (VA Form 21-4138)) for service connection for a right shoulder disability on September 17, 2002 as compared to September 7, 2002). 2. Prior to September 7, 2002, there was no pending claim pursuant to which service connection for right shoulder disability with bursitis could have been granted. CONCLUSION OF LAW The criteria for an effective date earlier than September 7, 2002, for the grant of service connection for right shoulder disability with bursitis, to include on the basis of CUE, are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.105(a), 3.151, 3.155, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification and development action needed to render a decision on the veteran's claim for an effective date earlier than September 7, 2002, for the grant of service connection for right shoulder disability with bursitis, to include on the basis of CUE, has been accomplished. With regard to VA's notice requirements, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. However, VCAA notice is not required with respect to every issue raised by a claimant. If, for example, a veteran files a claim for service connection for a disability, he is provided with VCAA notice as to that claim, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (When a claim for service connection has been proven, the purpose of section 5103(a) has been satisfied and notice under its provisions has been satisfied.). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the veteran's claim for entitlement to an earlier effective date falls squarely within the fact pattern above. Thus, no additional VCAA notice was required with respect to the issue of an earlier effective date for the grant of service connection for right shoulder disability with bursitis on appeal. Furthermore, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. Dingess/Hartman v. Nicholson, supra. In this regard, in April 2003, the veteran was issued a notice letter regarding his claims for service connection for left shoulder disability and for right shoulder disability. In November 2004, the veteran was granted service connection for bilateral shoulder disability and was notified of the decision that same month. The notice included a copy of the RO's November 2004 rating decision. In that rating decision, the veteran was informed of the evidence the RO considered and its reasons for assigning 20 percent evaluations for the left shoulder disability and for the right shoulder disability. The veteran was also informed that the effective date of his awards was assigned based on the date the RO had found that his claim for service connection for bilateral shoulder disability had been received, September 7, 2002. In a March 2006 statement of the case, in particular, the RO notified the veteran of the relevant rating criteria associated with his claim for an earlier effective date, as well as the regulation regarding revision of a previously decided and final rating decision. In this regard, the veteran was again informed that the effective date of his award had been assigned based on the date that the RO had found his claim for service connection for bilateral shoulder disability had been received. In March 2006, the veteran was issued additional notice which described how the RO assigned a disability rating and effective date, as well as the factors that were considered. Following this March 2006 notice, the veteran's claims were re-adjudicated in September 2006. Consequently, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. Nothing about the evidence or any response to the RO's notification suggests that the case must be re- adjudicated ab initio to satisfy the requirements of the VCAA. Here, the Board does not find that the essential fairness of the adjudication has been affected. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Furthermore, although the VCAA is applicable to many types of claims, the Court has held that it does not apply to claims involving CUE. See, e.g., Livesay v. Principi, 15 Vet. App. 165 (2001). The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the veteran's appeal for an effective date earlier than September 7, 2002 for the grant of service connection for a right shoulder disability with bursitis, to include on the basis of CUE. Relevant documents associated with the veteran's original application for benefits in May 1979 are associated with the claims file, as are the veteran's service medical records and reports of August 1979 and March 1980 VA examinations. The Board notes that in June 2006, the RO contacted by electronic mail (email) the Chief of Administration Service (CAS) of the VA Medical Center (VAMC) in New York, New York. The CAS was requested by the RO to conduct a search for VA medical records associated with the veteran's reported treatment by the New York Harbor Health System from 1979 to 1995. These records were believed to have been retired to the VA Records Center and Vault (located at the VA Austin (Texas) Automation Center). Thereafter, an August 2006 email from CAS to the RO notes that a complete and comprehensive search had been conducted for the veteran's medical records prior to 1995 and that those records located had been forwarded to the RO. A review of those records received by the RO reflects no evidence of treatment prior to 1983. Thus, it appears that VA medical records that pertain to the veteran's reported treatment with the New York Harbor Health System are unavailable. The Board notes that the record on appeal does not reflect any notice from the RO to the veteran regarding missing Federal records in accordance with 38 C.F.R. § 3.159(e)(1) (2007). However, during the veteran's December 2007 hearing, he did testify to knowledge of the missing records and the reasons behind why they had reportedly become lost. Furthermore, the veteran also reported that the New York VARO had adjudicated his claim in September 2006 without notifying him of the missing records. Likewise, the veteran has also identified that he has been in receipt of disability benefits from the Social Security Administration (SSA) since 1996. The records associated with the veteran's disability award from SSA are not associated with the claims file. With respect to the issue decided below, as noted above, the veteran's claim hinges on evidence of a pending claim for service connection for right shoulder disability and not necessarily on medical evidence related to treatment for his right shoulder disability. Thus, the Board finds the SSA records are not relevant to the veteran's claim for an effective date earlier than September 7, 2002 for the grant of service connection for a right shoulder disability with bursitis, to include on the basis of CUE. See 38 C.F.R. §§ 3.151, 3.155. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Under applicable criteria, if a claim is received within one year after separation from service the effective date assigned will be the day following separation from active service or date entitlement arose; otherwise date of receipt of claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of date of the receipt of the informal claim. 38 C.F.R. § 3.155. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). The Board notes that the veteran seeks an earlier effective date for the grant of service connection for a right shoulder disability with bursitis, to include on the basis of error in the RO's October 1, 1979 rating decision. In this respect, the veteran's primary allegation is that he filed a claim in May 1979 for service connection for both a right shoulder disability and left shoulder disability and that the RO improperly failed to adjudicate his claim for a right shoulder disability. In reviewing the record on appeal, the Board notes that service medical records are associated with the claims file as is the veteran's application for benefits (VA Form 21- 526e) as well as a report of August 1979 VA examination and a report of March 1980 VA examination. A review of the veteran's service medical records reflects an August 26, 1976 treatment note. It was noted that the veteran was receiving treatment for an arthritic shoulder. An August 30, 1976 physical therapy consultation report notes that the veteran had been in an automobile accident that month. The left shoulder was reported as lowered. No reference to the right shoulder was noted. An orthopedic consultation note dated November 2, 1976 reflects the veteran was referred for physical therapy for back and right leg pain, as well as range of motion exercises and hot packs "to shoulder." A March 18, 1977 orthopedic consultation report notes the veteran's complaint of pain in both shoulders. On clinical examination, disability of the left shoulder was identified but no objective indication of disability of the right shoulder was reported. An X-ray at that time was reported normal. The diagnosis appears to be mild supraspinatus syndrome of the left shoulder. A subsequent March 1977 statement regarding the veteran's medical condition notes that the veteran sustained injuries when his car was struck by another car in August 1976, and later that month when the veteran was struck by a vehicle while walking along a road. On March 21, 1977, the veteran was placed on physical profile, in particular, for bursitis of the left shoulder. The physical profile did not reflect any reference to right shoulder bursitis. Thereafter, a September 17, 1977 treatment note reflects the veteran's complaints of right shoulder bursitis and that he was on physical profile for such disability. The medical notation appears to be a mistake as the veteran, as noted above, was on physical profile for left shoulder bursitis and not right shoulder bursitis. The veteran was referred to physical therapy. A physical therapy note, dated September 19, 1977 reflects the veteran's complaint of left shoulder pain. Evaluation of both shoulders revealed palpable crepitus but otherwise normal findings. A subsequent March 23, 1978 physical profile notes the veteran's restrictions due to, in particular, left shoulder pain. The Board is aware that in a July 26, 1978 Report of Medical History, the veteran reported that he had a current profile for his back, knees, and "shoulders". The examiner noted the veteran's reported history of intermittent swelling of the right shoulder as well as arthritis. In a July 26, 1978 Report of Medical Examination, noted for the purpose of Chapter 13, the examiner identified clicking of the right shoulder with range of motion. The diagnosis was bursitis of the right shoulder. The Board notes that the diagnosis of bursitis of the right shoulder appears to be based on the veteran's reported history in this regard, notwithstanding the clinical finding of clicking of the right shoulder on examination. The veteran's report of being on profile for his "shoulders", as compared to solely his left shoulder, is a misstatement. Following the July 26, 1978 medical examination, a September 21, 1978 orthopedic consultation note reflects that the veteran had sought treatment for recurrent left shoulder pain and left knee pain. The examiner noted that the veteran's health record had been extensively reviewed and that the veteran had had repeated evaluations and work-ups for his left shoulder and left knee. He was also noted to be on permanent profile for both disabilities. In a report of April 1979 medical examination for purposes of the veteran's separation from military service, the examiner noted left shoulder bursitis on clinical examination. There was no diagnosis of right shoulder bursitis. The Board also notes that post service medical evidence reflects a report of August 1979 VA examination in which the examiner noted the veteran's reported history of pain in his knees, back and left shoulder. The veteran was not noted to have complained of right shoulder pain. An X-ray of the left shoulder at that time was negative for any arthritic process. Likewise, in a subsequent report of March 1980 VA examination, following the October 1, 1979 rating decision, the veteran was again noted as only complaining of left shoulder pain. A review of the veteran's May 1979 application for VA benefits (VA Form 21-526e) reflects that under question #6 (Nature of Sickness, Diseases or Injuries for Which Claim is Made and Date Each Began), pleadings by the veteran are noted as follows, Knee begin in 1973. Was operate on left knee Oct 73. Hurt back 1974 and shoulder. Reinjury back, knee and shoulder 1976. Bursitis left shoulder. Loose body knee and soften of both knee also chronic back strain. The Board notes that a sympathetic reading of a claimant's pleadings cannot be based on a standard that requires legal sophistication beyond that which can be expected of a lay claimant and must consider whether the claimant's submissions, considered in toto, have articulated a claim. See Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007). In this case, in reviewing the veteran's May 1979 application for benefits and his noted pleadings, above, the Board does not find any expressed reference to a right shoulder disability and/or bilateral shoulder disability. A claim for a right shoulder disability also can not be reasonably inferred from a sympathetic reading of the veteran's pleadings in the May 1979 application. Here, in analyzing the veteran's pleadings in his application, the Board notes that service medical records do not reflect a right shoulder injury in 1974. Notwithstanding that fact, the veteran identifies having reinjured in 1976 the apparent same shoulder that was injured in 1974. Service medical records dated in 1976 also do not make reference to treatment for a right shoulder disability or injury in 1976. The Board finds persuasive that a March 18, 1977 orthopedic examination of the veteran revealed the veteran's complaint of pain in both shoulders, but no objective clinical finding of a right shoulder disability. Otherwise, the veteran's pleadings explicitly note bursitis of the left shoulder. The Board also finds persuasive that the veteran's physical profiles in service do not reflect any right shoulder disability or pain. As noted above, the examiner in July 1978 appears to base his finding of right shoulder bursitis on the veteran's report of such disability. A subsequent examination in April 1979 for purposes of the veteran's separation from service does not reflect a finding of right shoulder bursitis. Additionally, during the August 1979 and March 1980 VA examinations the veteran did not give any history or complain of right shoulder pain or was any reference by the veteran to his right shoulder noted. Therefore, even with a sympathetic reading of the veteran's pleadings in his May 1979 application for benefits, the Board concludes that the evidence simply does not support that a claim for service connection for a right shoulder disability was pending at the time of the October 1, 1979 rating decision. 38 C.F.R. §§ 3.151, 3.155; Ingram, supra. As noted above, the veteran has alleged that the RO's failure to consider his claim for service connection for a right shoulder disability in the October 1, 1979 rating decision was CUE. The United States Court of Appeals for the Federal Circuit has held that when a claimant files more than one claim with the RO at the same time, if the RO acts on one of the claims but fails to specifically address the other, the second claim is deemed denied and the appeal period begins to run. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). Subsequently, in Ingram v. Nicholson, 21 Vet. App. 232, 247 (2007), the Court interpreted Deshotel to hold that an RO decision may constitute an adjudication of a claim where the RO decision addresses the claim "in a manner sufficient for a claimant to deduce that the claim was adjudicated." As noted above, both the holding of the Federal Circuit and the Court presuppose a finding that a claimant had in fact filed a claim. In this case, the Board has found that the veteran did not in fact have a claim pending for service connection for a right shoulder disability at the time of the October 1, 1979 rating decision. Because the veteran did not have a claim for service connection for a right shoulder disability pending at the time of the October 1, 1979 rating decision, the Board finds that his argument alleging CUE in the October 1, 1979 rating decision lacks legal merit. Here, the October 1, 1979 rating decision is not final and binding with respect to any claim for a right shoulder disability. For this reason, as a matter of law, the October 1, 1979 rating decision cannot be the subject of a claim of CUE regarding a service-connected right shoulder disability. Therefore, 38 C.F.R. § 3.105(a) provides no basis for assignment of an earlier effective date in this case. Otherwise, a review of the record reflects that the veteran separated from his second period of active service on May 16, 1979. As noted above, the RO appears to have received the veteran's claim (via a Statement in Support of Claim (VA Form 21-4138)) for service connection for a right shoulder disability on September 17, 2002 (as compared to September 7, 2002). The VA Form 21-4138 is dated September 17, 2002 and the RO's date stamp of the document also appears to be September 17, 2002. Notwithstanding these facts, the RO has assigned September 7, 2002 as the date the veteran's claim was received and this date is accepted by the Board. An evaluation of the information and evidence prior to September 7, 2002 does not reflect any earlier claim having been filed for service connection for a right shoulder disability; nor has the veteran contended, other than his allegation of a claim having been filed in May 1979, that he filed a claim earlier than September 7, 2002. Therefore, as the veteran's claim for service connection for a right shoulder disability with bursitis was not received by the RO within one year of his separation from service, the date of receipt of claim or date entitlement arose, whichever is later, is controlling for the purposes of the veteran's claim. 38 C.F.R. § 3.400(b)(2). Here, the RO has assigned an effective date from the date of the claim for service connection. Thus, an effective date earlier than September 7, 2002 is not warranted. The governing legal authority is clear and specific, and VA is bound by it. As such, there clearly is no legal basis for assignment of an earlier effective date in this case. Under the circumstances, the Board must conclude that there is no basis to warrant an effective date earlier than September 7, 2002 for the award of service connection for a right shoulder disability with bursitis, and the claim must be denied. ORDER An effective date prior to September 7, 2002 for the grant of service connection for a right shoulder disability with bursitis, to include on the basis of CUE, is denied. REMAND As noted in the Introduction, above, in a February 2005 rating decision, the RO assigned an effective date of May 17, 1979 (date of original claim) for the grant of service connection for a left shoulder disability with bursitis. The RO has awarded a noncompensable rating from May 17, 1979 to June 21, 2002, and a 20 percent rating since June 21, 2002. The veteran has appealed the noncompensable rating assigned prior to June 21, 2002. In reviewing the evidence of record, as noted above, the veteran has reported that he is in receipt of disability benefits from SSA. In a report of the June 2003 VA examination, the examiner noted the veteran's reported history of receiving SSA benefits since 1996 for his bilateral shoulder disability. The Board finds the record on which the veteran's SSA disability award was based may contain additional relevant evidence with respect to his claim for an initial compensable rating for left shoulder disability with bursitis prior to June 21, 2002. The Board notes that once VA is put on notice that a claimant is in receipt of disability benefits from SSA, VA has a duty to obtain the records associated with that decision. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The records associated with the veteran's SSA disability award should be obtained and associated with the claims file. All procedures set forth pertaining to requests for records from Federal facilities must be followed. The action identified herein is consistent with the duties imposed by the Veterans Claims Assistance Act of 2000. However, identification of the specific action requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the action requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to readjudicating the remaining claim on appeal. In light of the foregoing, this matter is REMANDED for the following action: 1. Any records pertaining to the veteran's reported award of disability benefits from the SSA, to include the decision itself and the medical records relied upon in reaching the decision, should be obtained. All records and/or responses received should be associated with the claims file. All procedures set forth in 38 C.F.R. § 3.159(c)(2) (2007) pertaining to requests for records from Federal facilities must be followed. Likewise, all notice procedures as set forth in 38 C.F.R. § 3.159(e)(1) (2007), for identified records that are not obtained must be followed. 2. The remaining claim on appeal should be re-adjudicated in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted, the veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. 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 AOJ. 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). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ THOMAS D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs