Citation Nr: 0812726 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-28 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for arthritis of the right ankle. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of both hips. 3. Entitlement to an increased rating for service-connected postoperative residuals of left ankle fracture with traumatic arthritis, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran served on active duty from September 1972 to September 1975, and had subsequent service in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) from a November 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in March 2005, a statement of the case was issued in July 2005, and a substantive appeal was received in August 2005. In the August 2005 substantive appeal, the veteran indicated that he wanted a Board hearing. A June 2007 letter was sent by the Board to the veteran to clarify the veteran's request for a hearing. The letter stated that the Board will assume that the veteran does not want a hearing and will proceed accordingly if the veteran does not respond within 30 days of the date of the letter. The veteran never responded to the letter and the Board assumes that the veteran does not want a hearing. The veteran filed a notice of disagreement in June 2006 regarding the denial of his claim of service connection for the lower back. A statement of the case was issued in August 2006. The veteran did not file a substantive appeal. Thus, this issue is not in appellate status. The issues of service connection for arthritis of the right ankle and for arthritis of the hips are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a January 2002 rating decision, the RO denied entitlement to service connection for arthritis of both hips; the veteran did not file a notice of disagreement. 2. In January 2004, the veteran filed a request to reopen his claim of service connection for arthritis of both hips. 3. Certain evidence received since the January 2002 rating decision raises a reasonable possibility of substantiating the veteran's claim of service connection for arthritis of the hips. 4. The veteran's service-connected postoperative residuals of left ankle fracture are manifested by marked limitation of motion, but there is no ankylosis of the ankle. CONCLUSIONS OF LAW 1. The January 2002 rating decision denying service connection for arthritis of both hips is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received since the January 2002 denial, and the claim of entitlement to service connection for arthritis of both hips is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. The criteria for an evaluation in excess of 20 percent for postoperative residuals of left ankle fracture with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5270-5274 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notification obligation in this case was accomplished by way of a letter from the RO to the veteran dated in February 2004. While this notice does not provide any information concerning the evaluation or the effective date that could be assigned should service connection be granted or the effective date that could be assigned should an increased rating be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denial of increased rating and service connection, the veteran is not prejudiced by the failure to provide him that further information. In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). With the reopening of the claim for arthritis of both hips, the Board may now consider the claim on the merits, and there is no prejudice to the veteran to consider the claim on the merits in relation to VCAA notice or other due process considerations. At this point the Board acknowledges that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, 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 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case there has clearly been no compliance with Vazquez since that judicial decision was just rendered in January 2008. However, after reviewing the claims file the Board finds no resulting prejudice to the veteran. It appears clear to the Board that a reasonable person under the facts of this case could be expected to know and understand the types of evidence necessary to show a worsening or increase in the severity of left ankle fracture with traumatic arthritis and the effect of that worsening on employment and daily life. The Board believes it significant that the veteran has been represented in the claims process by Texas Veterans Commission, which organization represents numerous veterans. The Board believes it reasonable to expect that this service organization duly informs the claimants of the rating criteria and the types of evidence necessary to obtain higher ratings for service-connected disabilities. In fact, the veteran's April 2001 statement includes assertions as to the types of evidence necessary to show a worsening or increase in the severity of left ankle fracture with traumatic arthritis. The Board finds that the veteran has had actual knowledge of the elements outlined in Vazquez and that no useful purpose would be served by remanding to the RO to furnish notice as to elements of his claim which the veteran has already effectively been made aware of. Such action would not benefit the veteran. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the veteran's service medical records and post-service VA medical records. The evidence of record also contains reports of VA examinations performed in January 1997, March 2001, June 2004, and November 2005. The examination reports obtained are fully adequate and contain sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, with regard to the issue decided on the merits in the following decision, the Board finds that duty to notify and duty to assist have been satisfied. For all the foregoing reasons, the Board will proceed to the merits of the veteran's appeal. Arthritis of the Hips Criteria & Analysis Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of "new and material" evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The veteran's request to reopen his claim of service connection for arthritis of both hips as secondary to the service connected disability of postoperative residuals of left ankle fracture with traumatic arthritis was received in January 2004, and the regulation applicable to his appeal provides that new and material evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran's claim of service connection for arthritis of the hips was denied in a January 2002 rating decision, and was issued to the veteran in February 2002. The veteran did not file a notice of disagreement, thus the RO decision is final. 38 U.S.C.A. § 7105. In January 2004, the veteran filed a claim to reopen entitlement to service connection for arthritis of the hips. The evidence that must be considered in determining whether new and material evidence has been submitted in this case is that evidence added to the record since the issuance of the RO determination in January 2002. VA outpatient treatment records dated in November 2002 reflect that the veteran was assessed with arthritis of the left hip. In September 2003, the veteran underwent an x-ray of the hips. The x-ray revealed degenerative changes acetabulum, as well as normal joint and range of motion in anterior-posterior and frog-leg positions of the right and left hips. There was an assessment of degenerative changes acetabular. In March 2004, the veteran underwent an x-ray of the pelvis. The x-ray revealed bony structures intact and normally aligned, and the hip and SI-joints normal and symmetrical in width. Mild sclerosis was seen about each acetabular roof. Also noted were bilateral os acetabuli, and normal congenital variant. The examiner found this to be an essentially normal exam. In June 2004, there was a diagnosis of myofascial source of the hip pain, derived from old trauma and instrumentation in the left ankle, as well as herniated disc L5-S1 with some root compression. VA outpatient treatment records reflect that the veteran was seen in July 2004. Upon physical examination, active range of motion in the left hip was within functional limits. Motor strength was grade 4+/5 to -4/5 in the left hip. VA outpatient treatment records dated in December 2005 reflect that the veteran was assessed with pain in both hips associated with degenerative joint disease. In April 2006, the veteran was assessed with slight pelvic tilt with left side slightly higher than the right which could be positional. Otherwise, the bones of both lower extremities were symmetric with equal lengths. Mild degenerative changes were seen at bilateral hip joints. Finally, the Board notes that the claims file contains a sheet of paper with only the following sentence: "It is my opinion that the veteran hip, knee and back condition is more like due to his severice connection ankle condition." This paper was undated and unsigned. Furthermore, there is no indication that this paper was placed in the file by the VA, or by any other medical provider. For those reasons, the Board notes that this opinion is of no probative value. Evidence received since the January 2002 RO decision denying service connection is new and material. Specifically, since the prior denial, the veteran has submitted x-ray evidence of degenerative joint disease of the hips and a diagnosis of myofascial source of the hip pain, derived from old trauma and instrumentation in the left ankle. This new evidence suggests a secondary relationship to the service-connected left ankle disability and therefore raises a reasonable possibility of substantiating the right ankle claim on that basis. The claim, therefore, is reopened. 38 U.S.C.A. § 5108. Left ankle disability Factual Background VA outpatient treatment records dated in September 2003 reflect that the veteran underwent an x-ray on his left ankle. The x-ray revealed a normal joint. Soft tissue was found to be normal. There was a small calcific density overlying posterior to distal tibia which appeared to the examiner to be hematoma calcification in anterior-posterior. The examiner assessed a metallic screw and K-wire overlying medial malleolus, arthralgia, and a hematoma calcification posterior tibia; otherwise, a negative left ankle. In March 2004, there was an assessment of post-traumatic arthritis left ankle. In June 2004, the veteran was seen for complaints of pain in his hips, left knee, and ankles. There was a diagnosis that the source of the pain was likely myofascial and derived from old trauma and instrumentation in the left ankle and herniated disc at L5-S1 with some root compression. In June 2004, the veteran underwent a VA examination. He reported that his ankle fracture occurred when the tailgate of a truck gave way and he fell. He was treated by a pin and cast. He stated that he was off work for about 6 months. He then returned to work, and noticed that he had pain in other joints, particularly in his groin areas, and back pain. He noticed that his legs gave out. He reported that he had to warm up his ankle each morning after he got up, meaning he had to limber it up by moving it. He had to be careful how he stepped down on it because it tended to turn. It was also stiff upon getting up after sitting for a prolonged period. His whole left leg would occasionally go numb while he was walking. He reported that the ankle swelled some. His ankle had a constant pain and he was unable to make a quick turn on it. He had flare-ups 2 or 3 times a month when the ankle swelled. He used a brace on his ankle which helped, but did not prevent the ankle from tilting. He did not try any sports activities. He did not mow his lawn. He was switched from the night shift to the day shift at work because he called in frequently. He reported that the ankle simply bothered him more as he got older. He reported that he was not on his feet most of the time when he was working. The examiner did not believe that the veteran had episodes of incapacity because of the ankle. The veteran indicated that pain was the more important factor that might increase his impairment of function beyond what the examination suggested. Upon physical examination, the veteran walked with an abnormal gait. He tended to not allow the left ankle to dorsiflex fully and this gave the appearance of being on his forefoot longer than is normally part of the gait sequence. The ankle dorsiflexed 20 degrees and plantar flexed 45 degrees. Inversion and eversion were mobile. He could heel walk and toe walk. There was a good pedal pulse. The examiner saw no abnormal weight bearing areas on the bottoms of the feet or footwear. The overall alignment of the veteran's legs was quite good. There was a single incision over the medial malleolus, which was well healed. The examiner believed he could still feel the head of the screw appliance. The examiner had no x-rays or x-ray reports and stated they would make some films. They showed healed fracture of medial malleolus with well preserved ankle mortise, with minimal degenerative changes involving only the medial part of the mortise. The examiner diagnosed a 1991 ankle fracture, which required an open reduction internal fixation medially. The veteran had increased pain from the ankle, though the function and appearance of the ankle was reasonably good. The examiner believed the confinement of the degenerative change to the medial side where the injury was meant the arthritis was related to the trauma. VA outpatient treatment records reflect that the veteran was seen in July 2004 for pain in his left ankle. The veteran reported that he sustained a fracture in the left ankle in 1993, following a fall during the military service. Open reduction and internal fixation of the fracture was done. Since then, he had pain and weakness in the ankle. He had imbalance in the gait when he walked on the rough and uneven terrain. He was bearing most of the weight on the right lower extremity. Upon physical examination, a well healed surgical scar was noted on the medial side of the left ankle. A slight tenderness was noted on palpation around the surgical scar. Active range of motion of the left ankle, dorsiflexion was about zero to 10 degrees. Plantar flexion was zero to 30 degrees. Inversion and eversion were about zero to 5 degrees. Left ankle dorsiflexors were grade 2/5 to 3/5. Left ankle plantar flexors were grade 3/5. Ankle jerk was not obtainable bilaterally. Peripheral pulses, posterior tibial pulses were palpable bilaterally. The examiner assessed pain and decreased range of motion in the left ankle with a history of fracture. VA outpatient treatment records from October 2005 reflect that the veteran was assessed with a left ankle sprain. The veteran underwent another VA examination in November 2005. He had increased pain when he stood for a long period of time. He reported that he missed about three days a month for pain. The medication made him sleepy and he could not work. He reported pain radiating up into the hip and the knee. He denied any incoordination of excess fatigability. He denied increased limitations with flare-ups or repetitive motion. He had some instability and reported that he had fallen. Upon physical examination, he had a 6 centimeter malleolar vertical scar, which was well healed and nontender. He had some moderate tenderness on compression of the malleoli. He was able to dorsiflex 10 degrees and plantar flex 10 degrees. He had 10 degrees of inversion and eversion and stated that he had pain. The examiner assessed fracture, open reduction, internal fixation, and degenerative arthritis of the left ankle. VA outpatient treatment records dated in December 2005 reflect an assessment of a fracture in the left ankle with metal fixation at time of service. Criteria & Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Pursuant to Diagnostic Code 5010, degenerative joint disease is to be rated as analogous to degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under this Code, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or groups of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Note 1 to Diagnostic Code 5003 dictates that the 20 percent and the 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Moderate limitation of motion of an ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. The average normal range of motion of the ankle is from 20 degrees of dorsiflexion to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The RO rated the veteran's disability under Diagnostic Code 5271, pertaining to limited motion of the ankle. In consideration of the rating criteria for diseases of the ankle, a disability rating in excess of 20 percent is not warranted. The Board notes that there is no evidence of ankylosis of the ankle to warrant a rating in excess of 20 percent under Diagnostic Code 5270. The Board has also determined that there is no other diagnostic code which could provide a higher rating for the veteran's left ankle fracture. See Schafrath, 1 Vet. App. at 592-593. As previously noted, when evaluating musculoskeletal disabilities on the basis of limitation of motion, functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is to be considered in the determination of the extent of limitation of motion. 38 C.F.R. § 4.40, 4.45, 4.59 (2003); DeLuca, 8 Vet. App. at 204-07. The Board notes that the veteran has reported ankle pain over the years since injuring his left ankle in the early 1990's. However, no higher evaluation is assignable for the left ankle disability. As indicated above, a 20 percent rating is the maximum assignable rating under Diagnostic Code 5271 for limited motion of the ankle, and consideration of pain on motion is already contemplated in assigning this 20 percent disability rating. The Board also finds that a higher or additional evaluation is not assignable under any other potentially applicable diagnostic code, as there is no evidence that the left ankle has resulted in ankylosis (Diagnostic Code 5270). Thus, the Board finds that 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. The assignment of an extra-schedular rating was also considered in this case under 38 C.F.R. § 3.321(b)(1); however, the record contains no objective evidence that the veteran's service-connected left ankle fracture has resulted in marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation. The veteran stated that the medication made him sleepy and he could not work. However, at the November 2005 VA examination, he reported that he missed about three days a month for pain. The Board does not consider missing three days of work a month to be marked interference with earning capacity or employment beyond that interference contemplated by the assigned evaluation. Additionally, the objective evidence does not reflect frequent periods of hospitalization due to left ankle fracture. Accordingly, the Board finds that the impairment resulting from the veteran's left ankle fracture is appropriately compensated by the currently assigned schedular rating and 38 C.F.R. § 3.321 is inapplicable. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the hips. To this extent, the appeal is granted, subject to the directions set forth in the remand section of this decision. An evaluation of increased rating in excess of 20 percent for left ankle fracture with traumatic arthritis is not warranted. To this extent, the appeal is denied. REMAND After reviewing the medical evidence, the Board believes further development of the right ankle issue is necessary to fully assist the veteran. The record includes apparently conflicting medical evidence on the question of a secondary relationship between the right ankle and the service- connected left ankle disability. In this regard, the opinion of a March 2001 VA examiner is apparently negative on this question, whereas a June 2004 comment by a VA examiner suggests at least some relationship to instrumentation in the service-connected left ankle. Clarification is necessary. The evidence received since the January 2002 RO decision denying service connection includes x-ray evidence of arthritis of the hips and a diagnosis of myofascial source of the hip pain, derived from old trauma and instrumentation in the left ankle. The RO explicitly stated that x-ray evidence of arthritis, among other things, was required to grant the claim of service connection. In view of this evidence, the Board does believe that a VA examination and opinion (based on a review of the claims file) is now necessary to comply with 38 C.F.R. § 3.159(c)(4) (2006). Accordingly, the case is REMANDED for the following actions: 1. The veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of any current right ankle disability and bilateral hip disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests, such as x-rays, should be conducted. Any current right ankle disability and bilateral hip disability capable of diagnosis should be clearly reported. The examiner should respond to the following: a) as to any current right ankle disability and/or current hip disability, is it at least as likely as not (a 50 or higher degree of disability) that such disability is causally related to the veteran's service? b) as to any current right ankle disability and/or current hip disability, is it at least as likely as not (a 50 or higher degree of disability) that such disability is causally related to the veteran's service-connected left ankle disability? c) as to any current right ankle disability and/or current hip disability, is it at least as likely as not (a 50 or higher degree of disability) that such disability has been aggravated by the veteran's service-connected left ankle disability? 2. After completion of the above, the RO should review the expanded record, and undertake a merits analysis of the claim of service connection for hip disability. The RO should also readjudicated the right ankle disability issue. The RO's review of both issues should include consideration of secondary service connection under 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet.App. 439 (1995). The veteran should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs