Citation Nr: 0813335 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-08 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss, on appeal from an initial grant of service connection. 2. Entitlement to an extraschedular evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active duty from August 1971 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered in June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO), located in Los Angeles, California. That rating decision denied the veteran's request for service connection for bilateral hearing loss. Subsequently, service connection was granted and the veteran has appealed the assignment of a noncompensable evaluation. The issue 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 VA has fulfilled its notice and duty to assist to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issue addressed in this decision. 2. The veteran has Level IV hearing in the right ear and Level I hearing in the left ear. On a more recent examination, the veteran has been found to have Level II hearing in the right ear and Level II hearing in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has come before the VA asking that a compensable evaluation be assigned for his bilateral hearing loss. 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, 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 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 to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). VA satisfied its duty to notify by means of a letter sent to the veteran from the agency of original jurisdiction (AOJ) in December 2004 before the issuance of the initial AOJ prior to the issuance of the initial AOJ decision. The letter informed the appellant of what evidence was required to substantiate the claim for service connection and of his, and VA's, respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Since the RO's original letter preceded its initial award of service connection, it did not provide notice of the evidence needed to substantiate the claim for an increased (initial) rating. However, VA is not required to provide separate notice under 38 U.S.C.A. § 5103(a) with regard to "downstream" issues, where the notice was provided in connection with the original claim. See VAOPGCPREC 8-2003 (Dec. 22, 2003) (cited at 69 Fed. Reg. 25,180 (2004)); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Nevertheless, VA subsequently provided notice as to the higher rating issue in the Statement of the Case (SOC) that was issued in January 2006 and the subsequent Supplemental Statements of the Case (SSOCs) that were issued in March and July 2007. VA has informed the appellant of which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA, which spelled out the requirements of the VCAA and what the VA would do to assist the appellant. The VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that he should inform the VA of any additional records or evidence necessary for his claim. The Board has fulfilled its duty to assist. In this instance, the VA obtained the veteran's available medical treatment records and those other records that the VA was made aware thereof. As such, the VA obtained those records and they have been included in the claims folder, available for review. The Board has also considered whether a VA medical examination or opinion should be obtained. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The record indicates that the veteran did undergo VA medical examinations in November 2004, August 2005, and April 2007. These results have been included in the claims folder for review. The Board finds that the VA has met its duty to assist the veteran in obtaining a medical examination of the veteran. The Board will, therefore, consider the claim based on the evidence previously developed. Moreover, the appellant was given the opportunity to present evidence and testimony before an RO hearing officer and the Board. The appellant was given notice that the VA would help him obtain evidence but that it was up to the appellant to inform the VA of that evidence. During the course of this appeal, the appellant and his representative have proffered documents and statements in support of the veteran's claim. It seems clear that the VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims, hereinafter the Court, issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Here the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection and he was given information concerning disability ratings, but he was not provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal. Despite the inadequate notice provided to the veteran on this element, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In that regard, as the Board concludes below that as the evidence is against the appellant's claim, any questions as to the effective date or the rating criteria to be assigned are rendered moot. According to Vazquez-Flores v. Peake, 27 Vet. App. 37 (2008), 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. 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. 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. In this case, the veteran was provided pertinent information in VCAA notice cited above and in the SOC and the two SSOCs. Cumulatively, the veteran was informed of the necessity of providing on his own or by VA, 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; the claimant was informed that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic code(s); and examples of pertinent medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. In the case currently before the Board, the VCAA notice did not make specific reference to Diagnostic Code 6100, of 38 C.F.R. Part 4 (2007). In Sanders v. Nicholson, No. 2006-7001 (Fed. Cir. May 16, 2007), the Federal Circuit stated that all VCAA notice errors are presumed prejudicial and require reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must show that the purpose of the notice was not frustrated, such as by demonstrating that any defect was cured by actual knowledge on the part of the claimant, that a reasonable person could be expected to understand from the notice what was needed, that a benefit could not have been awarded as a matter of law, or perhaps where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. There must be a demonstration that there was no error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir.1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Court has stated that "Nothing in law or common sense supports a conclusion that the Court should put on blinders and ignore [the 'extensive administrative appellate process'] or a conclusion that a notice error prior to the initial decision by the Secretary could not be rendered non- prejudicial when the full panoply of administrative appellate procedures established by Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to the claimant." See Vazquez- Flores. The claimant demonstrated that there was actual knowledge of what was needed to establish the claim. Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); see also Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The mere act of submitting evidence does not demonstrate actual knowledge. See Vazquez-Flores. In this instance, the veteran and his representative demonstrated his awareness through his various submissions to the VA over the long course of this appeal. That is, the veteran had written that his hearing loss was more disabling and that he should receive a compensable evaluation. The veteran further insinuated through his statements to the VA that he was aware of what was required in order for a higher disability to be assigned. Accordingly, the Board finds that the essential fairness was maintained in this case as the claimant has demonstrated actual knowledge of the evidence, which was needed to establish the claim, and since VA has obtained all relevant evidence. The claimant demonstrated an understanding of the evidence required to substantiate the higher rating sought and that a higher rating would be assigned based on the pertinent diagnostic criteria. The claimant discussed the pertinent criteria and submitted supporting evidence and he has indicated that there was no further evidence to submit. The criteria were discussed in the statement of the case and the claimant was told why a higher rating was not warranted under that criteria. In sum, the claimant was provided the information necessary such that any defective predecisional notice error was rendered non-prejudicial in terms of the essential fairness of the adjudication. Thus, the Board finds that although there may be a VCAA deficiency, the evidence of record is sufficient to rebut this presumption of prejudice as the record shows that this error was not prejudicial to the claimant and the essential fairness of the adjudication process in this case was preserved. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, there is no error. Here, the appellant is not prejudiced by the Board's consideration of his claim as VA has already met all notice and duty to assist obligations to the appellant under the VCAA. In essence, the appellant in this case has been notified as to the laws and regulations governing increased ratings claims. He has been advised of the evidence considered in connection with his appeal and what information VA and the appellant would provide. He has been told what the VA would do to assist him with his claim and the VA has obtained all documents it has notice thereof that would assist in the adjudication of the appellant's claim. Thus, the Board finds that there has been no prejudice to the appellant that would warrant further notification or development. As such, the appellant's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2007). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2007) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2007) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2007) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2007). With respect to the issue before the Board, the appeal does stem from the veteran's disagreement with an evaluation assigned in connection with the original grant of service connection, and the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2007). As reported, the veteran has asked that his bilateral hearing loss disability should be assigned a compensable evaluation. For references purposes, on the authorized audiological evaluation, performed in August 2005, in pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 40 50 55 LEFT 30 30 25 25 30 Speech audiometry revealed speech recognition ability of 69 percent in the right ear and of 96 percent in the left ear. The average pure tone thresholds, in decibels, for the right ear was 47.5 and for the left ear was 27.5. The most recent VA Audiological Examination was performed in April 2007. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. The average pure tone thresholds, in decibels, for the right ear was 50 and for the left ear was 37. To evaluate the degree of disability from defective hearing, the VA Schedule for Rating Disabilities (Rating Schedule) establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; Table VI (2007); 38 C.F.R. § 4.85(b) and (e) (2007). See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e) (2007). Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). Applying the above test results to Table VI of the Rating Schedule, the veteran's hearing loss results are as follows: Date Right Ear Roman Numeral Designation Left Ear Roman Numeral Designation August 2005 IV I April 2007 II II When the formula in Table VII for determining the disability evaluation is applied to these numeric designations, the results are as follows: August 2005 0 percent April 2007 0 percent 38 C.F.R. § 4.85, Table VII (2007). The regulations also provide for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under 38 C.F.R. § 4.85 (2007) because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). The first provision, that of 38 C.F.R. § 4.86(a) (2007), indicates that if pure tone thresholds in any four of the five frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. See 64 Fed. Reg. 25209 (May 11, 1999). This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. Id. Because the veteran does not have four frequencies measured at 55 decibels or greater, this provision does not apply. The second provision, that of 38 C.F.R. § 4.86(b) (2007), indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. This provision does not apply because the veteran has not been measured to have hearing loss of 70 decibels or more at 2000 Hertz. The amended regulations changed the title of Table VIa from "Average Puretone Decibel Loss" to "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average." See 64 Fed. Reg. 25202 (May 11, 1999). The Board is certainly cognizant of the veteran's argument to the effect that his hearing loss should be assigned a compensable evaluation. However, the Board is bound in its decisions by applicable provisions of law and regulations. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 19.5 (2007). In addition, the Court has explained that the assignment of disability ratings for hearing impairment is derived from a mechanical application of the Rating Schedule to numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, the mandated mechanical application of the Rating Schedule to the numeric designations assigned based on the reported audiometric evaluation does not warrant an evaluation more than previously assigned by the RO. Accordingly, the Board concludes that a compensable evaluation is not supported by the record and increased evaluations are not warranted at any time during the pendency of the appeal. See Fenderson, supra. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board sympathizes with the veteran's difficulties due to his hearing loss, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the evidence is against his claim. ORDER Entitlement to a compensable evaluation for bilateral hearing loss, on appeal from an initial grant of service connection, is denied. REMAND It is noted that the veteran has an accredited veteran's representative who has assisted the veteran with his claim for benefits. That representative submitted a VA Form 1-646, Statement of Accredited Representation in Appealed Case, in July 2007. In that statement, the accredited representative stated the following: . . . subjective problems are not accounted for in the rating schedule, but if the problem is too bad, it should be looked at for special extra-schedular consideration. In this case hearing aids do not help him, and they magnify the background so as to interfere with speech. A review of the SOC and the SSOCs, along with the original rating decision, fails to show that the issue of an extraschedular evaluation as being addressed. 38 C.F.R. § 3.321(b)(1) (2007) provides that, where the disability picture is so exceptional or unusual that the normal provisions of the VA Schedule for Rating Disabilities (Rating Schedule) would not adequately compensate the veteran for the service-connected disability, then an extraschedular evaluation will be assigned. If the question of an extraschedular rating is raised by the record or by the veteran before the Board, the correct course of action for the Board is to raise the issue and remand the matter for decision in the first instance by the RO. Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Judicial precedent has held that, in the absence of "evidence of 'an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards' . . . the Board [is] not required to discuss the possible application of § 3.321(b)(1)." Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Since the veteran's representative has raised the issue of whether an extraschedular evaluation should be assigned, this issue, in accordance with Bagwell and Floyd, must be returned to the RO for additional action. Moreover, the RO/AMC must notify the veteran how he can prevail with respect to an extraschedular evaluation. That is, the RO/AMC is required to inform the veteran that in order to succeed it has to be shown that his disorder presents such an exceptional or unusual disability picture, due to such factors as marked interference with employment or frequent periods of hospitalization, that application of the regular schedular standards is impractical. Since the veteran has not been specifically told what he must do in order to prevail on his claim, the claim must be returned to the RO/AMC for further action. Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following development: 1. The RO/AMC must ensure that the notification requirements set forth at 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006) and 38 C.F.R. § 3.159(b)(1) (2007), as well as VAOPGCPREC 7-2004, are fully complied with and satisfied as to the issue of an extraschedular evaluation in accordance with 38 C.F.R. § 3.321(b)(1) (2007). In particular, the RO/AMC must inform the claimant: (1) of the notification and duty to assist provisions of the VCAA and its implementing regulations, (2) about the information and evidence not of record that is necessary to substantiate an extraschedular evaluation claim; (3) about the information and evidence that VA will seek to provide; (4) about the information and evidence the claimant is expected to provide; and (5) request or tell him to provide any evidence in his possession that pertains to his claim. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issue of an extraschedular evaluation in accordance with 38 C.F.R. § 3.321(b)(1) (2007). 2. The RO/AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2007); see also Stegall v. West, 11 Vet. App. 268 (1998). Following completion of the above actions, the RO/AMC should review the veteran's claims and determine whether the veteran's extraschedular evaluation claim may be granted. The RO/AMC is reminded that in evaluating the disability that it must consider referring the service-connected claim for extraschedular evaluations under 38 C.F.R. § 3.321(b)(1) (2007), and that its actions, including that of not sending of the claim to the Director, VA Compensation and Pension, must be documented on readjudication. If any determination remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case that contains any additional evidence, citations of applicable laws and regulations not previously provided, and the reasons and bases for the decision. The veteran and his representative should be given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs