Citation Nr: 0813042 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 04-23 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder. 3. Entitlement to service connection for a low back disorder. 4.Entitlement to service connection for a seizure disorder. 5. Entitlement to an increased rating for residuals of an injury to the cervical spine, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from January 1964 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2008 the veteran appeared and testified before the undersigned Veterans Law Judge at the Board of Veterans' Appeals in Washington, DC. The transcript of that hearing is included in the record. The issues of entitlement to service connection for a low back disorder and entitlement to an increased rating for a cervical spine disorder are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. On January 15, 2008, prior to the promulgation of a decision in the appeal, the veteran withdrew his appeal for entitlement to service connection for diabetes mellitus. 2. A March 1988 rating decision denying service connection for a low back disorder was not appealed. 3. Medical records compiled after the March 1988 rating decision, including the reports of numerous compensation and pension examinations, constitute new and material evidence. 4. A seizure disorder first became manifest and was diagnosed more than 30 years following service; and is not linked by competent probative evidence to any incident of active military service, CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal for service connection for diabetes mellitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The March 1988 rating decision denying service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2007). 3. New and material evidence sufficient to reopen a previously denied claim for service connection for a low back disorder has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). 4. A seizure disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection, Diabetes Mellitus II Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). Withdrawal may be made by the veteran or his authorized representative. 38 C.F.R. § 20.204. During his January 2008 Board hearing the veteran withdrew his appeal for service connection for diabetes mellitus. See Transcript at p. 2. Consequently, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.. 38 U.S.C.A. § 7105. II. New and Material Evidence, Low Back Disorder In a rating decision dated in March 1988 the RO denied service connection for a low back disorder on the grounds that there was no evidence of injury or treatment for low back disorder during service, and based on January 1988 x-ray findings of normal lumbosacral spine. A notice of disagreement was not filed, and the decision became final. 38 C.F.R. § 3.104. Even so, applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. In correspondence received by the RO in July 2001 the veteran requested that his claim for service connection for a low back disorder be reopened. This request was denied in an October 2002 rating decision on the grounds of no new and material evidence. The veteran has appealed. In the February 2007 supplemental statement of the case, the RO appeared to reopen the claim and deny on the merits. The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). For purposes of this decision, new and material evidence is defined as "evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a) (effective prior to August 29, 2001) [emphasis added]. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence compiled since the March 1988 denial includes the reports of compensation and pension (C&P) neurology examinations done on April 19, 2005, and May 10, 2006, and opinions issued in October and November of 2006; all by the same examiner. According to this examiner, the veteran's low back disorder is not related to his service-connected cervical spine, but "it is at least as likely as not that the veteran's chronic low back pain is related to his motor vehicle accident in 1966 in service." This evidence is new since it was not of record at the time of the March 1988 denial. The Board must presume the credibility of the evidence for the purpose of reopening the claim. Upon so doing, the Board finds that it is material since it propounds a link between a current low back disorder and service. It thus raises a reasonable possibility of substantiating the veteran's claims for service connection. New and material evidence having been found, the veteran's claim for service connection for a low back disorder must be reopened. 38 C.F.R. § 3.156. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting the request to reopen the claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. III. Service Connection, Seizure Disorder The veteran also seeks service connection for a seizure disorder. During his January 2008 Board hearing he testified that he was involved in a motor vehicle accident during service, and said that he "must've passed out." He also testified regarding a family history of seizure disorder, stating that his mother had been determined by a doctor to have had "some type of seizure." See Transcript, pp. 9-10. Service connection will be granted if it is shown that the veteran suffers from a disability contracted in the line of duty while in active military service. 38 C.F.R. §§ 3.303, 3.304. Some chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a),3.309(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. By all accounts the veteran had a syncopal episode at his place of employment in March 1999. VA treatment providers opine that the event was probably a "complex partial seizure." In correspondence dated in April 2004 the veteran refers to a 1966 motor vehicle accident and says "I must have passed out." In a letter dated July 29, 2004, a private neurologist stated as follows: [the veteran] was involved in a motor vehicle accident in 1967 while serving in the US Army. . . . He is currently under my care due to a seizure disorder. In revealing his medical history, it appears that after the accident he had continued problems with cervical spine, shoulder, and low back pain. Subsequently, he had seizures after the accident. He was unconscious at the time of injury. Reviewing his medical record, he had no evidence of seizures prior to the accident. Given the history of the aforementioned head trauma, a connection with the aforementioned severe accident, this is a probable cause of his seizure disorder. . . . There is medical evidence that concern is his epilepsy as well as his chronic cervical and lumbosacral pain are secondary to the aforementioned motor vehicle accident occurring in 1967. Contrary to the neurologist's assertions, there is no record of any syncope, seizures, or other forms of unconsciousness during service. Indeed, despite numerous in-service and post-service examinations, there is no record of any complaint of or treatment for any seizures, blacking out, syncope, or other loss of consciousness until the March 1999 event, more than 30 years after service. The Board finds this inordinate lapse in time between the 1966 in-service motor vehicle accident and the veteran's 1999 syncope to be significant probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Moreover, medical records inform of a history of hypertension well before the March 1999 syncopal event. In fact, in a letter dated in August 1999 a private cardiothoracic physician avers that the veteran's March 1999 syncope "could [sic] have been caused by an episode of hypertension." There is also no evidence which suggests that the 1966 motor vehicle accident was caused by the onset of a seizure. Instead, the veteran repeatedly states that the motor vehicle accident was due to poor driving conditions (wet roads). The Board also notes the veteran's sworn testimony of a history of seizure disorder in his family, and finds significant the physician's failure to comment upon this information. In view of the abject lack of credible evidence of any syncopal episode prior to the March 1999 event, and since the July 2004 opinion is predicated upon the misguided assumption that the veteran was unconscious at the time of the 1966 motor vehicle accident and "had seizures after the accident," it is accorded no probative value. See Goodsell v. Brown, 5 Vet. App. 36, 42 (1993) (The Board must analyze the credibility and weight of all the evidence to determine probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any [favorable evidence]). In May 2006 the veteran was accorded a C&P neurologic examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the examination report the examiner commented as follows: The [veteran] . . . gives history of first seizure onset in 1999 (that was more than 30 years after discharge from the service). . . . The [veteran] has not had any recurrence of seizures since then. According to the examiner, the etiology of the seizure is unclear. He added as follows: the relationship between the [veteran's] seizures, the seizure onset was in 1999 and the [veteran] had a motor vehicle accident in 1966, the exact relationship between the automobile accident that occurred in 1996 causing the first seizure onset in 1999 is not known at this point. Nothing about the 2006 examination suggests incurrence during service of a seizure disorder or continuity of symptomatology thereafter. The Board also finds the veteran's report during this examination of first seizure onset in 1999 to be highly probative evidence against the veteran's claim. See Maxson, 230 F.3d 1330. During his 2008 Board hearing the veteran testified that he had had an episode "about in 1985" of about 15 seconds in which he felt "disoriented." He testified that he never told anyone about the incident. Although the Board notes that the veteran is competent to testify as to his symptoms, where, as here, the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In that regard the Board notes that the nature of this brief period of disorientation was not reported to any medical providers. There is simply no way of knowing whether the event was symptomatic of a complex partial seizure disorder, a hypertension disorder, or some other disorder. The incident is not documented in any medical records, and the record contains no competent probative evidence that links this alleged episode of disorientation to service or to a service-connected disability. The Board also finds the substantial lapse of time between this episode of disorientation in 1985 and the veteran's motor vehicle accident in service, without any competent medical evidence connecting the two incidents, to be significant probative evidence against the claim. See Maxson, 230 F.3d 1330. In short, the record confirms that the veteran had a syncopal event in March 1999, but there is no probative evidence of any loss of consciousness during service, within the first post-service year, and for more than 30 years thereafter, and no competent probative evidence which links a current seizure disorder to service. See Pond v. West, 12 Vet. App. 341, 346 (1999) (holding that service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury). Nor is there an approximate balance of negative and positive evidence on the merits. 38 C.F.R. § 3.102. Service connection for seizure disorder must therefore be denied. 38 C.F.R. § 3.303. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice which informs the veteran of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met the notice and duty to assist provisions. Letters from the RO dated in April 2002 and March 2005 satisfied the duty to notify provisions. The veteran was apprised of the evidence needed to substantiate his claim for service connection for a seizure disorder. He was also informed of the evidence that VA would obtain, and of the evidence that he should submit or request VA's assistance in obtaining, and explicitly asked to provide "any evidence in [his] possession that pertains" to his claim (38 C.F.R. § 3.159(b)(1)). In a letter dated in March 2006 he was also advised of how VA determines disability ratings and effective dates. Although the March 2005 letter was issued after the October 2002 rating decision, the case was readjudicated by way of a Supplemental Statement of the Case issued in February 2007. The Board further observes that the issue of whether the March 2006 notice was timely is moot since the veteran's claim for service connection was denied. Regarding the duty to assist, SMRs have been obtained and are of record. VA and private treatment records have also been obtained and associated with the claims file. In addition, the veteran was accorded a C&P examination; the report of which is of record. The veteran also appeared and testified at a Board hearing before the undersigned Veterans Law Judge; the transcript of which is of record. There is no indication that additional development is necessary, and the Board is satisfied that VA has done everything reasonably possible to assist the veteran with his claim. ORDER The appeal concerning entitlement to service connection for diabetes mellitus type II is dismissed. New and material evidence having been received, the petition to reopen the veteran's claim for service connection for a low back disorder is granted. Service connection for seizure disorder is denied. REMAND Having reopened the claim for service connection for a low back disorder based on new and material evidence, the Board has jurisdiction to review the issue de novo, based on the whole record. For the reasons that follow the Board finds that additional development is warranted. The record contains no evidence of any complaints of or treatment for back problems during service. Indeed, during his January 2008 Board hearing the veteran testified that he had no back symptomatology in service. The record does, however, contain competent probative evidence of a current low back disorder. In April 2005 and May 2006 the veteran was accorded a C&P neurology examination. Both examinations were done by the same physician. In the report of the April 2005 examination the examiner issued a diagnosis of "posttraumatic chronic low back strain, and averred that "it is less likely as not that [the veteran's] lower back pain is related to service- connected cervical spine injury and arthritis." In the report of the May 10, 2006, examination he opined as follows: . . . [the veteran] says that his low back pain started five years after he came back from service, and the accident was in 1966 and five years he came back from service. So, it is at least as likely as not that the veteran's chronic low back pain is related to his motor vehicle accident in 1966 in service. The examiner added that "all the c-file volumes were available, and were completely reviewed." On May 15, 2006, the veteran underwent an orthopædic spine examination. The examiner expressly stated that he had "reviewed c-file and veteran's personal records." According to the examiner, the veteran's low back pain "is not caused by or a result of accident in 1966." He added as follows: The personal records suggest that he was involved in an injury in October 1996 while working as a mail handler, that caused significant back pain. On October 4, 2006, the RO requested that the claims file be reviewed by a Spine Specialist and an opinion issued to resolve the conflicting May 2006 C&P orthopædic and neurology opinions. The RO specifically requested the Spinal Injuries Specialist to: review veteran's claim file reviewing all pertinent evidence as requested in original opinion and reconcile the conflicting opinions. The specialist providing the opinion should identify the specific evidence that was reviewed and considered in forming the opinion and give a rationale for the opinion presented. In a statement dated October 11, 2006, the May 2006 neurology examiner stated as follows: Please read neuro C&P already done on 4/19/05. It is at least as likely as not that the veteran's chronic low back pain is related to his motor vehicle accident in 1966 in service. In a statement dated November 1, 2006, the May 2006 orthopædic examiner stated as follows: ADD I have reviewed his c-file including service medical records and still do not find sufficient evidence to establish a causal relationship between his low back pain and the accident in 1966. No mention was made by either examiner of the conflicting opinions of record. On November 13, 2006, the RO again requested that the claims file be reviewed by a Spine Specialist and an opinion issued to resolve the conflicting C&P orthopædic and neurology opinions. As before, the RO specifically requested that the Spinal Injuries Specialist: review veteran's claim file reviewing all pertinent evidence as requested in original opinion and reconcile the conflicting opinions. The specialist providing the opinion should identify the specific evidence that was reviewed and considered in forming the opinion and give a rationale for the opinion presented. In a statement dated November 21, 2006, the May 2006 neurology examiner reiterated that it is at least as likely as not that the veteran's chronic low back pain is related to his motor vehicle accident in 1966 in service. No mention was made of the conflicting orthopædic opinion. However, an opinion from a third C&P physician was also received in November 2006, who stated as follows: C-file review and C&P evaluation and opinion evaluation. I agree with ortho opinion that the LBP is not caused by or result of accident of 1966 due to fact it was never treated for or compared of back pain at time of accident or on discharge from the service. If did injurred [sic] his back in the accident he would have pain either immediately or 1-2 days after the accident. Despite the RO's vigorous development thus far, it now appears that certain treatment records have not been associated with the claims file. During his January 2008 hearing the veteran testified that he has been treated by VA for low back pain since 1972. He testified that his initial treatment was at the Newark VA Hospital, and subsequently at the Philadelphia Veterans' Affairs Medical Center. VA treatment records compiled by the Philadelphia VAMC and dating from September 19, 2001, to March 1, 2004, have been obtained and associated with the claims file. On remand an attempt should be made to obtain all VA treatment records dating from January 1972 to September 18, 2001. See Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2). Acquisition of these records is particularly important in view of the May 2006 orthopædic examiner's rationale for his opinion. Request should also be made for any VA treatment records compiled after March 1, 2004. Id. In addition to the foregoing, the veteran seeks an increased rating for his service-connected cervical spine disability. C&P examiners aver that the veteran has undergone some dermatomol sensory loss in his bilateral upper extremities; however, it is unclear whether this sensory loss is due to his C5-6 radiculopathy since electromyogram testing done in November 2004 found "moderately severe carpal tunnel syndrome at the right wrist," and "C6 radiculopathy on the left side." On remand the veteran should be accorded an appropriate C&P examination to determine whether his upper extremity sensory loss is related to his service-connected cervical spine disability. With regard to claims for increased ratings, the Board notes that 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, 22 Vet. App. 37 (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 such as, 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. Id. On remand, additional notice should be sent to the veteran. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Notice should be sent in accordance with Vazquez-Flores v. Peake. The notice should inform the veteran that he 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. In addition, the veteran should be provided with notice of the potentially applicable diagnostic criteria, which include: Diagnostic Codes 8510, 5290 (old criteria), 5293 (old criteria), and 5235-5243 (new criteria). 2. Request all treatment records from the Newark VA Hospital and the Philadelphia VAMC dating from January 1972 to September 18, 2001, and from March 2, 2004, to the present. Also attempt to obtain any other evidence that is identified as relevant by the veteran during the course of the remand, provided that any necessary authorization forms are completed. If no further treatment records exist, the claims file should be documented accordingly. 3. Schedule the veteran for an examination by an appropriate specialist to determine the etiology of all neurological in the veteran's upper extremities. The claims file should be made available to, and reviewed by, the examiner, and the examiner should acknowledge such review in the examination report. All indicated tests should be performed, and all findings reported in detail. The examiner is specifically requested to inform as follows: If neurological symptoms in either extremity are determined to be secondary to the veteran's service-connected cervical spine with arthritis disability, the examiner must identify the nerve(s) involved and indicate whether the degree of paralysis is complete or incomplete. If incomplete, whether the degree is mild, moderate, or severe. The examiner is specifically also asked to identify the etiology of all neurological symptoms identified in both upper extremities, and address the EMG studies in November 2004 if current findings are inconsistent with those results. The EMG report included findings of left and right wrist carpal tunnel syndrome, left and right elbow ulnar neuropathy as well as C6 radiculopathy on the left side. If C6 radiculopathy is present, the examiner must set out all manifestations of that disability in the shoulder(s), elbow(s), forearm(s), wrist(s) and the hand(s). If it is not present, the examiner should explain the discrepancy. If the examiner is unable to dissociate symptoms of a neurological disability related to the service-connected cervical spine disability and other co- existing neurological disabilities, the examiner should so state and explain why. The examiner should also obtain a detailed history as to the frequency and length of any incapacitating episodes (bed rest prescribed by a physician and treatment by a physician), if any. The examiner is also asked to record range of motion measurements for the cervical spine. In that regard, any additional range of motion loss due to such symptoms as pain, weakness, excess fatigability, incoordination, etc. should also be recorded. 4. After any further development deemed necessary, readjudicate the issues on appeal. If the benefits sought remain denied, the veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1) and be given an opportunity to respond. The case should then be returned to the Board for appellate review unless the benefit sought is granted. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs