Citation Nr: 0812113 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-10 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for lumbosacral strain, claimed as a lower spine condition. 2. Entitlement to service connection for anterior cruciate ligament strain, right knee, claimed as a right knee condition. 3. Entitlement to service connection for medial collateral ligament strain, left knee, claimed as a left knee condition. 4. Entitlement to service connection for allergies. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The veteran served on active duty from September 1984 to February 1985. She had an additional period of duty in the Army Reserve up until 1988, the exact dates of which have not yet been verified. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. For the reasons indicated below, the claims for service connection for lumbosacral strain, and for right and left knee disabilities, are being decided on the merits. The issue of service connection for allergies is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran has been properly apprised of the additional evidence required to substantiate the claims for service connection for lower back, and right and left knee disorders, and of the mutual responsibility between herself and VA to obtain that information; furthermore, VA has fulfilled its duty to assist her in obtaining evidence relevant to the disposition of these matters. 2. There are current medical diagnoses of record of chronic degenerative joint disease of the lumbar spine, with chronic spondylosis and facet disease, bulging discs, and lumbosacral strain; right knee medial collateral ligament and anterior collateral ligament strains, gastrocnemius muscle strain, bone lesion, and subcutaneous edema; and left knee strain and edema within the proximal gastrocnemius musculature, and subcutaneous edema. 3. The most probative medical evidence weighs against the finding that these lower back, and right and left knee disabilities are causally related to the veteran's service. CONCLUSIONS OF LAW 1. Lumbosacral strain was not incurred or aggravated during military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1112, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 2. Anterior cruciate ligament strain, right knee, was not incurred or aggravated during military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1112, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. Medial collateral ligament strain, left knee, was not incurred or aggravated during military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1112, 1131, 1137, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 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 requested, the veteran has been appropriately informed as to the procedures for the development of the claims presently being decided. Through the issuance of notice correspondence dated in August 2005, the criteria for satisfactory notice set forth under the Pelegrini II decision have effectively been met. The August 2005 VCAA letter set forth the general requirements to establish her claims for service connection. This correspondence described whose responsibility it was, VA's or the veteran herself, to obtain additional evidence, including that VA would undertake reasonable measures to assist in obtaining all further VA medical records, private treatment records, and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). It further requested that the veteran provide any other pertinent evidence or information in her possession. The veteran has received notification of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration through an additional March 2006 letter informing her of the holding in the Dingess/Hartman decision. She has therefore received detailed notice concerning both the disability rating and effective date elements of the claims. In addition to the preceding requirements concerning the content of the notice provided, 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). In this instance, the issuance of the August 2005 notice letter preceded the October 2005 rating decision on appeal. Meanwhile, the March 2006 correspondence with reference to the Dingess/Hartman case holding did not meet this timeliness standard. That notwithstanding, the RO has taken measures to appropriately evaluate the claims such that any defect in the timing of the notice did not have a detrimental impact upon the adjudication of them. Following the issuance of the March 2006 letter on the criteria to establish an initial disability rating and effective date for the claims on appeal, the veteran had an opportunity to respond with additional evidence prior to the later SSOC continuing the denial of these claims. During the timeframe prior to readjudication of her claims, she did not identify any further information or evidence. 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). See, too, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Moreover, the RO has taken appropriate action to comply with the duty to assist the veteran with the development of her claims, including obtaining her complete service treatment records. The RO has also arranged for the veteran to undergo VA examinations in connection with her claims. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). To support her claims, the veteran has provided copies of letters from treating physicians, and several personal statements. She declined the opportunity to testify at a hearing in support of the claims. 38 C.F.R. § 20.700. In sum, the record reflects that the facts pertinent to the claims 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 claims. Factual Background Service treatment history during active duty indicates that in October 1984 the veteran was evaluated for the complaint of knee pain over the preceding two weeks. There was no history of trauma. There was no swelling or redness. A 72-hour profile and ice were utilized for treatment purposes. The following month, she was seen for unresolved bilateral knee pain, and lower back pain exacerbated during training exercises. The assessment was overuse syndrome, and mechanical lower back pain. She was seen again that month for reported left knee pain with swelling, on prolonged running or marching. The assessment was provided of a stress reaction, left knee. She was not placed on a physical profile at that time. Another consultation took place in January 1985 for bilateral knee pain, with the resulting assessment of a mild bruise to the bilateral patella. Thereafter, the November 2004 letter of Dr. R.A., a private physician, states that he had been treating the veteran for several conditions including high blood pressure, severe edema of the ankles and legs, chronic low back pain, and chronic pain of the ankles and legs. The physician indicated that these disorders were the result of many factors, including the patient's weight and the previous utilization of military boots in service. A gastric bypass surgery was planned and it was anticipated that losing weight would enhance the patient's ability to get control of medical conditions such as low back pain and hypertension. In March 2005 correspondence, this physician observed that the veteran had been experiencing chronic pains in her feet, ankles, knees and hips for many years, which become worse when exercising. On physical examination there was nothing remarkable except for joint pain that worsened with pressure. An MRI of the lumbar spine conducted at a private facility in June 2005, resulted in an impression of multilevel mild lower thoracic and lumbar spondylosis, greatest at L2-L3 and L3-L4, and multilevel mild facet disease. On a right knee MRI, there was a medial collateral ligament (MCL) high grade injury, possibly a rupture at the femoral insertion; extensive subcutaneous edema; strain of the gastrocnemius muscle; eccentric isointense bone lesion; and findings suggesting anterior collateral ligament (ACL) strain. A left knee MRI revealed extensive edema within the proximal gastocnemius musculature, and subcutaneous edema within the surrounding tissues. The June 2005 letter from Dr. J.S., an osteopath, indicates that by the veteran's report, during service she was required to run in improperly fitting boots which injured her knees, ankles and lumbosacral spine. The veteran had stated that she felt the original injury was to her ankles and knees, and that she developed lumbosacral spine problems due to her altered body mechanics compensating for her injuries. It was noted her military medical record had multiple entries for treatment of musculoskeletal complaints. The physician expressed the opinion that the patient probably had internal derangement of both knees, degenerative joint disease and chronic lumbosacral strain/sprain, and chronic degenerative joint disease in both ankles. By her history, all of these problems started while she was stationed at Fort Jackson, South Carolina. An August 2005 letter from the above physician states a revised diagnosis of chronic degenerative joint disease, chronic spondylosis and chronic facet disease, bulging discs with neuroforaminal narrowing, high grade MCL injury, gastrocnemious muscle strain, chronic ACL strain, and chronic environmental allergies. It was stated that by patient history and as reflected in her service medical records, all of these problems began while she was stationed in Fort Jackson, South Carolina. According to the physician, it was more likely than not that these problems were caused by military service, and had been continuous since the initial injuries. He stated that without complete resolution of these injuries at the time of military discharge, the veteran's condition had continued to degrade. On VA examination in February 2006, the veteran described having had lumbar pain on a continuous basis, and with little relief with use of pain medication. She also experienced daily knee pain, with episodes in which there was locking and popping of the knees. The examiner indicated his review of the claims file. Objectively, it was noted that the veteran could move the lumbar spine only slightly. In both the right and left knees she demonstrated flexion to 90 degrees while sitting, but only to 20 degrees actively. She had 0 degrees of extension on each side. There appeared to be effusion on the right. She had joint line tenderness. There was no crepitation, and the cruciate and collateral ligaments appeared to be intact. The findings of recent x- rays and MRI studies were indicated. An impression was provided of lumbosacral strain; strain of the left knee; MCL strain; strain of the right gastroc; possible ossifying fibroma of the tibia; and ACL strain of the right foot. The VA examiner further indicated that the veteran's original back and knee injuries appeared to be soft tissue injuries from 1984. It had been some 22 years since these injuries. The examiner stated that he could not ascertain evidence that her current knee or back problems would be related to the soft tissue injuries of the back and knees in service. It was noted that the patient had previously gained weight, had gastric bypass surgery, and then lost the weight. It was considered speculation to attribute her current knee and back injuries to then soft tissue injuries in service. There was also considerable functional overlay as evidenced by pain on light touch, extremely limited range of motion of the knees and back, and painfree flexion of the knees to 90 degrees sitting on the examination table. Legal Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When considering the evidence pertinent to the claimed disorders of the right and left knees, and lumbar spine, the comprehensive criteria for service connection have not been met. There is initially of record current substantiated medical diagnoses of each condition. To this effect, both VA and private evaluating physicians have diagnosed right knee MCL and ACL strains, and strains of the gastrocnemius muscle, as well as left knee strain with edema in the knee and surrounding tissues. Also diagnosed is lumbosacral strain, and there is a private physician's assessment of degenerative joint disease of the lumbar spine and chronic spondylosis, amongst other manifestations. The existence of a current diagnosis of these disorders shown, the remaining dispositive issue is whether these disabilities are causally related to the veteran's active military service. See 38 C.F.R. § 3.303(d). See also Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). In determining whether any of the preceding disorders are of service origin, the provisions regarding presumptive service connection warrant application. Arthritis may be presumed service-connected where incurred within one- year of discharge. Here, however, the first post- service diagnoses of the claimed disorders were set forth on a November 2004 private physician's evaluation report. This occurred nearly two decades following separation. In any event, there is only an existing diagnosis of arthritis in the lumbar spine, not affecting either knee. Hence, the provisions through which a chronic disorder is presumed to be incurred in service, absent medical evidence to the same, do not apply. See 38 C.F.R. §§ 3.307, 3.309. The additional medical findings on the etiology of the veteran's claimed lumbar spine, and knee disorders, consist of several physicians' opinions of record. In evaluating these opinions, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In so doing, the Board may accept certain medical opinions over others. The Board nonetheless is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one opinion over another. Evans v. West, 12 Vet. App. 22, 30 (1999). The fact that a veteran has received regular treatment from a physician or other doctor is certainly a consideration in determining the credibility of that doctor's opinions and conclusions. That notwithstanding, the Court has declined to adapt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467- 471-3 (1993). Reviewing the relevant opinions on medical causation, the November 2004 statement of Dr. R.A. considered the veteran's chronic low back pain, and chronic pain of the ankles and legs to have resulted from several factors, amongst which one such factor included the wearing of military boots during service. Of particular note, this opining physician identified a multi-factorial etiology of claimed disability, as opposed to theorizing a clear causal connection to service. Moreover, the evidentiary basis for his statement is not readily apparent, including whether the physician evaluated the veteran's objective treatment history. Additionally, the August 2005 opinion from Dr. J.S. sets forth the viewpoint that the claimed orthopedic disabilities were in fact incurred in service while stationed in Fort Jackson, South Carolina, based on analysis of patient history, and service treatment records; no mention was made of a complete claims file review, however. According to the physician, the initial injuries had not resolved at the time of discharge, and resulted in continuing disabilities through the present time. The February 2006 VA examination report indicates a contrary conclusion to the August 2005 private physician's statement. It was observed that the veteran's original back and knee injuries from 1984 were entirely soft tissue injuries. The VA examiner essentially could not find evidence of a link between current symptomatology, and those initial injuries approximately 22 years ago. Another potential cause was having undergone gastric bypass surgery, and then recovery from that procedure. The examiner deemed any relationship between claimed disabilities and service merely speculative. As the February 2006 examiner's opinion was based on review of the entire claims file, and absence of evidence of ongoing pathology from soft tissue injury up until diagnoses more than 20 years later, his opinion appropriately considered the entire documented medical history. The applicable law and regulations provide that where a disorder diagnosed in service was other than chronic, a showing of continuity after discharge is required to support the claim. See 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). The fact that the VA physician had the opportunity to consider the entire claims file, to include the lack of any pertinent treatment records between in-service injury and the present, substantially contributes to the probative weight of his conclusion. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). To this effect, Dr. J.S.'s August 2005 opinion and Dr. R.A.'s March 2005 statement mention the veteran's report of having had pain in the affected joints for many years, and that she believed her initial knee injuries in service over time developed into other health problems. From these statements, it is likely to at least a significant extent that her current orthopedic disabilities had an onset a few years prior to the November 2004 initial diagnosis of record. The most probative finding as to whether the current conditions are manifestations of specific in-service injuries, however, is set forth on the above examination report, consistent with the fact that these were soft tissue injuries, with no documentation of recurrence for more than 20 years. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (whether lay evidence is competent and sufficient in a particular case to establish the presence of a claimed medical conditions is a matter within the province of the Board). Also, as mentioned, the VA examiner's conclusions were thoroughly grounded in an objective review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the February 2006 VA examiner's opinion should be afforded an extensive degree of probative weight on the question of causation. For the above reasons, it is determined that the February 2006 VA medical opinion is the most persuasive in resolving the etiology of claimed orthopedic disabilities of the lower back, and knees. See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may consider and evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances). In addition to evaluation of the medical evidence, consideration has been given to the veteran's own assertions in adjudicating the claims on appeal. As a layperson, however, she is not competent to offer a probative opinion on a medical matter, including whether there is an etiological link between a claimed disability and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Hence, the claims of entitlement to service connection for right knee anterior cruciate ligament strain, left knee medial collateral ligament strain, and lumbosacral strain must be denied. The preponderance of the evidence is against the claims, and under these circumstances the benefit-of- the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for lumbosacral strain, claimed as a lower spine condition, is denied. Entitlement to service connection for anterior cruciate ligament strain, right knee, claimed as a right knee condition, is denied. Entitlement to service connection for medial collateral ligament strain, left knee, claimed as a left knee condition, is denied. REMAND Additional development of the claim for service connection for allergies is required prior to the adjudication and disposition of this issue on the merits. Thus far, the August 2005 statement of Dr. J.S., sets forth a diagnosis of in part, chronic environmental allergies. The physician further indicated that by the veteran's history, and as reflected in service medical records, it was more likely than not that this condition (amongst other current medical problems) was attributable to service. Upon present review of the relevant service treatment history, a June 1985 report indicates evaluation for a sinus problem, involving sinus pain and headaches since the previous day. The assessment was provided of stuffy sinuses. In June 1987, the veteran obtained treatment for a rash present on the back of both hands with itching. The area was washed and calamine lotion applied. In view of this medical history, the August 2005 opinion while supportive of the veteran's claim, does not conclusively address the matter of etiology. Notably, the service records mention a single episode of sinusitis, without clarifying if allergic in origin. This physician also relied upon the veteran's own reported history of in-service illness, which she is indeed competent to offer. See e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). Nonetheless, the specific assertions from the veteran that this physician relied upon are not disclosed. Consequently, VA examination is required in order to obtain a more definitive medical opinion on the likely etiology of an allergic disorder. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Furthermore, in its continuing consideration of the claim on remand, the RO should take into account the provisions of 38 C.F.R. § 3.380, which pertains to diseases of allergic etiology. By this regulation, such claimed disorders may not be disposed of routinely as constitutional or developmental abnormalities. Rather, service connection must be determined on the evidence as to existence prior to enlistment and, if so, a comparative study must be made of severity at enlistment and subsequently. The determination as to a relationship to service must be made on the whole evidentiary showing. Also, the veteran should be afforded an additional opportunity to identify any other medical providers, VA or private, who have treated her for the claimed respiratory condition since her discharge from service. The RO should then undertake appropriate action to obtain pertinent treatment records from these identified sources. See 38 C.F.R. §§ 3.159(c)(1), (2) (addressing the duty to make reasonable efforts to acquire evidence necessary to substantiate a claim, including VA and private medical records). Accordingly, this claim is REMANDED for the following action: 1. The RO should contact the veteran and request that she identify any additional health care providers, non-VA and VA, who have treated her for allergies since separation from service. Based upon her response, the RO should attempt to obtain relevant records from any identified treatment sources not previously contacted. If the request for records from any of these sources is unsuccessful, make all reasonable follow-up attempts. If it is determined these records cannot be obtained or that further efforts to obtain them would clearly be futile, notify the veteran of this in accordance with 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e). 2. Upon completion of the requested development, the RO should schedule the veteran for a respiratory examination pertaining to her claimed allergies. 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 allergies, and/or other objective conditions of an allergic nature. If present, the physician must address whether it is at least as likely as not (e.g., a 50 percent or greater likelihood) that the diagnosed disorder(s) is/are causally related to her military service, based on the veteran's own assertions concerning treatment history, as well as relevant documentation from service. In providing the requested determination, the examiner should initially consider whether allergies clearly and unmistakably existed prior to enlistment -- and if this is so, explain whether that disorder underwent aggravation therein due to causes other than natural progression of the disease process. A complete rationale must be provided for any opinion offered in a typewritten report. 3. The RO should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the RO should readjudicate the claim of entitlement to service connection for allergies. In its continuing adjudication of the claim, the RO should expressly indicate application of the provisions of 38 C.F.R. § 3.380 regarding diseases of allergic etiology. If the benefit is not granted, the veteran and her representative should be furnished with a supplemental statement of the case 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 matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ A. C. MACKENZIE 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