Citation Nr: 0813593 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 02-14 988A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date prior to December 28, 1995, for service connection for osteoarthritis of the right knee. 2. Entitlement to an effective date prior to November 28, 1995, for service connection for instability of the right knee. 3. Entitlement to an initial rating higher than 20 percent for service-connected degenerative joint disease of the lumbar spine. 4. Entitlement to an initial rating higher than 20 percent for service-connected impingement syndrome with degenerative joint disease of the right shoulder. 5. Entitlement to an initial rating higher than 20 percent for service-connected impingement syndrome with degenerative joint disease of the left shoulder. 6. Entitlement to an initial rating higher than 10 percent for service-connected degenerative joint disease of the right hand. 7. Entitlement to an initial rating higher than 10 percent for service-connected degenerative joint disease of the left hand. 8. Entitlement to an initial compensable rating for service- connected peripheral neuropathy of the right hand. 9. Entitlement to an initial compensable rating for service- connected peripheral neuropathy of the left hand. 10. Entitlement to an effective date earlier than December 28, 1995, for compensation for postoperative residuals of left eye cataract excision with implant of an intraocular lens. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran served on active duty from September 1944 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) from December 2000 and February 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In the December 2000 rating decision, the RO granted service connection for osteoarthritis of the right knee, effective December 28, 1995, and for instability of the right knee, effective November 28, 1995. The veteran appealed the effective dates assigned to the Board. The Board remanded these claims to the RO for further development in December 2003. Following the requested development, the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C., confirmed and continued the denial of effective dates earlier than those assigned. Accordingly, those claims remain on appeal. In the February 2003 rating decision, the RO granted service connection for several disabilities. The veteran submitted a notice of disagreement in January 2004 pertaining to the initial ratings assigned for service connected disorders of the lumbar spine, right shoulder, left shoulder, right hand and left hand (orthopedic and neurological impairment), and with the effective date assigned for establishing compensation under the provisions of 38 U.S.C.A. § 1151 for postoperative residuals of left eye cataract excision with implant of an intraocular lens. In a statement, received by the RO in January 2004, the veteran raised contentions to the effect that increased ratings were warranted for his service-connected left and right knee disabilities and for his service-connected left and right hip disabilities. He also raised contentions to the effect that service connection was warranted for the following disorders: A) degenerative joint disease of both elbows; B) degenerative joint disease of both hands, including his fingers; C) degenerative joint disease of both wrists; D) degenerative joint disease of both feet, including his arches, toes, and heels; E) degenerative joint disease of both ankles; and F) right eye disability. None of those claims have been certified to the Board on appeal, nor have they otherwise been developed for appellate purposes. Therefore, the Board has no jurisdiction over any of those claims and they will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2007). However, they are again referred to the RO for appropriate action. The issues of (1) an effective date prior to prior to December 28, 1995, for service connection for osteoarthritis of the right knee; (2) an effective date prior to November 28, 1995, for service connection for instability of the right knee; and (3) increased evaluations for service connected disorders of the lumbar spine, right shoulder, left shoulder, right hand and left hand (orthopedic and neurological impairment) being remanded 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. The veteran underwent eye surgeries performed by VA in November 1988 and February 1992. 2. The veteran filed a service connection claim for an eye disorder in November 1993. 3. The earliest written communication received from the veteran indicating that he wished to file a claim for 38 U.S.C.A. § 1151 benefits for an eye disorder related to VA treatment provided in 1988 and 1992 was received on December 28, 1995. CONCLUSION OF LAW The requirements for an effective date prior to December 28, 1995, for compensation under 38 U.S.C.A. § 1151 for postoperative residuals of left eye cataract excision with implant of an intraocular lens, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking entitlement to an effective date prior to December 28, 1995, for the grant of compensation under the provisions of 38 U.S.C.A. § 1151 for postoperative residuals of left eye cataract excision with implant of an intraocular lens. In particular, the veteran has requested an effective date of November 1988, the date of the first eye surgery. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). In Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (the Court) held that the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts, is dispositive of the matter. The Board finds that such is the case as to the earlier effective date issue here on appeal. The facts in this case, which involve the assignment of effective dates, are not in dispute. Application of pertinent provisions of the law and regulations will determine the outcome. No amount of additional evidentiary development would change the outcome of this case; therefore no VCAA notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant). Specifically, the Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). In addition, general due process concerns have been satisfied in connection with this appeal. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. The veteran has retained the services of a representative, who has presented argument on his behalf. Accordingly, the Board will proceed to a decision on the merits. Factual Background and Legal Analysis Generally, the effective date of an award of service connection based on a claim received more than one year after a veteran's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. With section 1151 claims, such as this one, the effective date of an award will be (1) the date such injury was suffered if the claim for compensation is received within one year of that date, or (2) date of receipt of claim. 38 U.S.C.A. § 5110(c); 38 C.F.R. § 3.400(i)(1). A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In this case, VA medical records show that the veteran underwent extracapsular cataract extraction from the left eye in November 1988. Medical records indicate that this surgery was complicated by vitreous loss in the anterior chamber. Subsequently, in February 1992, the veteran underwent secondary implantation of an anterior chamber intraocular lens in the left eye. In a statement from the veteran, dated and received in November 1993, he stated that his eyes had gotten severely worse over the years and explained that he had been treated in service for welding flash during welding school. He requested that his service medical records be obtained. On VA examination conducted in January 1994, the veteran complained of tearing eyes and occasional double vision. Diagnoses of bilateral pseudo aphakia and peripheral diplopia induced by the concave effect of the veteran's glasses were made. Service connection for an eye condition was denied in an April 1994 rating action, which was not appealed. In a statement from the veteran received on December 28, 1995, he requested that a compensation claim for a left eye disorder be considered and mentioned that eye surgery had been performed by VA in 1988 and 1992. In a July 1997 rating action, the RO granted entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left eye condition, effective from December 28, 1995, the date of receipt of a written claim for § 1151 benefits. Under VA law and regulations regarding 38 U.S.C.A. § 1151 claims, such as this one, the effective date of an award will be (a) the date such injury was suffered if the claim for compensation is received within one year of that date, or (b) date of receipt of claim. 38 U.S.C.A. § 5110(c); 38 C.F.R. § 3.400(i)(1). The veteran maintains that the effective date should be the date of either the November 1988 eye surgery or, at least, the February 1992 eye surgery. However, it is clear that no compensation claim for an eye disorder was filed within a year of either one of those dates, nor does the veteran so allege. Accordingly, there is no basis for the assignment of an effective date of November 1988 or February 1992. Since it has been determined that a compensation claim under 38 U.S.C.A. § 1151 was not filed within a year of the date of the injury suffered (or in this case the November 1988 and February 1992 eye surgeries), the pertinent question is whether a claim, formal or informal, for 38 U.S.C.A. § 1151 benefits was filed prior to December 28, 1995. The Board finds that it was not. The Board acknowledges that a claim for an eye disorder was filed in November 1993. However, this was clearly a service connection claim, referencing a service related injury, requesting a review of service medical records, and failing to even mention any post-service treatment or either the 1988 or 1992 VA eye surgeries. The service connection claim for an eye disorder was denied in an April 1994 action, of which the veteran was notified in April 1994. He did not appeal that decision, and it became a final decision in April 1995. Thereafter, the veteran initially indicated that he wished to pursue a 38 U.S.C.A. § 1151 claim in a statement received on December 28, 1995. Prior to December 28, 1995, communications from the veteran or his representatives did not indicate that he wished to pursue § 1151 compensation. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998). As mentioned herein, a claim must identify the benefit sought. See 38 C.F.R. § 3.155. The record does not include any communication from the veteran or a representative received prior to December 28, 1995, that may reasonably be construed as an indication he was seeking compensation under 38 U.S.C.A. § 1151. The Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation. Thus, notwithstanding the veteran's assertions as to why an earlier effective date should be assigned, the fact remains that the first communication received from the veteran indicating that he wished to pursue the § 1151 claim was received on December 28, 1995. He has already been assigned the earliest possible effective date under VA regulations governing effective dates for awards based on a claim for compensation under 38 U.S.C.A. § 1151. Thus, there is no legal basis for an effective date earlier than December 28, 1995. Accordingly, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than December 28, 1995, for compensation under 38 U.S.C.A. § 1151 for postoperative residuals of left eye cataract excision with implant of an intraocular lens, is denied. REMAND The veteran is seeking: (1) an effective date prior to prior to December 28, 1995, for service connection for osteoarthritis of the right knee; (2) an effective date prior to November 28, 1995, for service connection for instability of the right knee; and (3) increased evaluations for service connected disorders of the lumbar spine, right shoulder, left shoulder, right hand and left hand (orthopedic and neurological impairment). Initially, the Board observes that both the veteran (in his substantive appeal received in March 2006) and his representative (in a written brief dated in December 2007) have indicated that a remand is necessary with respect to the earlier effective date claims pertaining to the right knee disabilities. In this regard, the Board agrees that a remand is required inasmuch as actions requested in the Board's July 2005 Remand pertaining to the earlier effective date claims were not undertaken by the RO. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). By way of explanation, the Board reiterates the information provided by the Board in the July 2005 Remand. Therein, the Board noted that in his substantive appeal (VA Form 9), received by the RO in October 2002, and in a statement, dated in March 2005, the veteran raised contentions to the effect that the RO had committed clear and unmistakable error (CUE) in its rating action of May 1, 1981. That rating action initially denied the veteran's claim of entitlement to service connection for right knee disability. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2007). The veteran has maintained that but for that error, the RO would have granted service connection and would have assigned an effective date in December 1980, the month the RO received his initial claim of entitlement to service connection for right knee disability. In the July 2005 Remand, the Board also explained that a claim for an "earlier effective date" for a grant of benefits may be predicated on different theories of entitlement. It was noted that there was a distinction, for example, between a claim for an earlier effective date based on clear and unmistakable error in a prior final RO rating decision (a claim that is not itself the subject of the appeal to the Board) and a claim for an earlier effective date for benefits which have been granted by an RO rating decision (which is a claim presently before the Board on appeal). Compare 38 C.F.R. § 3.105(a) with 38 C.F.R. § 3.400; see, e.g., Dinsay v. Brown, 9 Vet. App. 79, 87-88 (1996) (holding that claim for earlier effective date was claim of clear and unmistakable error in final RO decision disallowing claim); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (noting that to be awarded earlier effective date, veteran must show clear and unmistakable error in RO decision disallowing higher rating). It was observed in the July 2005 Remand, and the Board agrees at this time, that a decision on the claim of CUE in the May 1, 1981, rating action could change the outcome of the veteran's claims for an earlier effective date for the grant of service connection for osteoarthritis and his instability of the right knee. As such, the CUE claim is inextricably intertwined with the earlier effective date claims currently on appeal. For this reason, the CUE question must be resolved prior to resolution of the effective date issues. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Unfortunately, although the Board had previously requested in the July 2005 Remand that adjudication of the CUE claim be undertaken by the RO/VBA prior to the case returning to the Board, that action has not been taken to this point, and accordingly a remand is required to complete that action pursuant to the aforementioned Stegall case. With respect to the appeal of the initial ratings for service connected disorders of the lumbar spine, right shoulder, left shoulder, right hand and left hand (orthopedic and neurological impairment), a remand is required to address both due process matters and additional evidentiary development. The VCAA provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). A VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the veteran has appealed the initial evaluations assigned following the grants of service connection for the various disabilities. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). However, in this case, no notice of the VCAA was provided before service connection was granted. Although notice is not generally required for an appeal of an initial rating, for an increased-compensation claim, section 38 U.S.C.A. § 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). 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. In this case, a letter was sent to the veteran in March 2006 explaining the general requirements for a claim for an increased disability rating, but it does not appear that that notice substantially complies with the type of notice discussed in the Vazquez-Flores case. However, recitation of the rating criteria for the veteran's service-connected disorders was generally provided for the veteran in the Statement of the Case issued in February 2006. Any notice defect is cured by actual knowledge on the part of the claimant. "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)). However, because the Board must remand the initial rating claims in this case for other reasons specified below, the Board will direct the RO to ensure that all duty to assist and notify requirements have been met. The Board also observes that the clinical evidence in this case is several years old, and accordingly, it is difficult to assess the current level of disability of the veteran's service-connected disorders of the lumbar spine, right shoulder, left shoulder, right hand and left hand (orthopedic and neurological impairment) for purposes of adjudicating the initial ratings on appeal, because if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the Board points out that the most recent VA (or any) examination reports on file are dated in 2002 and are now approximately 6 years old. In addition, VA records on file are primarily dated prior to 2001, with a handful of VA outpatient records on file dated in July 2002 and September 2003. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In this case, the Board believes that supplemental information is required prior to the adjudication of the claims on appeal, to include obtaining more recent medical records and affording the veteran the opportunity to report for a VA examination(s) to assess the current symptomatology of his lumbar spine, shoulder and hand disabilities. As a related matter, the Board notes that the increased rating claims were all mischaracterized as service connection claims in the Statement of the Case issued in February 2006, although the discussion of the evidence pertained to the increased rating claims. On readjudication, the RO/VBA is requested to correct this error wit the issuance of a Supplemental SOC. Accordingly, the case is REMANDED for the following action: 1. The RO should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA, its implementing regulations, and related case law. This notice should include an explanation as to the evidence required to support the appeal of the initial ratings in this case as outlined by the Court for increased rating claims in Vazquez-Flores v. Peake, 22 Vet. App 37 (2008). As it appears that a notice deficiency exists in this case, particularly as pertains to the type of notice discussed in the Vazquez-Flores case, the RO should issue a duty to assist letter to the veteran addressing the notice requirements discussed therein. 2. The veteran should be given an opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his increased rating claims for service connected disorders of the lumbar spine, right shoulder, left shoulder, right hand and left hand (orthopedic and neurological impairment) that have not yet been associated with the claims folder. Appropriate steps should be taken to obtain the identified records. In addition, a specific request for the veteran's VA medical (to include radiology reports) and hospitalization records pertaining to treatment/evaluation for the lumbar spine, shoulders and hands dated from 2004 forward, should be requested. 3. The veteran should be afforded a VA examination to determine the severity of his degenerative joint disease of the lumbar spine, with low back pain. The examiner should be provided with the appropriate examination worksheets, if any, or other methods currently employed by VA to ensure that the examiner will address any aspects of the former and revised rating criteria, effective prior to and since September 2002 and September 2003, which need to be specifically addressed by an examiner in assessing the impairment resulting from the veteran's back disorder. VA should forward the claims file to the examiner for review and ask the examiner to confirm in his written report that he conducted such a review. All studies deemed necessary to accurately evaluate the veteran's back disability should be performed, to include X-rays and range of motion studies in degrees. In reporting range of motion, the examiner should specifically identify any excursion of motion accompanied by pain. The examiner should be requested to identify any objective evidence of pain and to assess the extent of any pain. The examiner should identify normal ranges of back motion and then state the veteran's actual passive and active ranges of low back motion in degrees. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible the functional impairment due to incoordination, weakened movement, and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. If this is not feasible, the examiner should so state. The examiner should specifically identify any evidence of neuropathy or other neurological deficit associated with the veteran's service-connected degenerative joint disease of the lumbar spine, to include indications of radiculopathy or muscle spasm. Any indications of abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis should be noted. The examiner should elicit history concerning, if any, the frequency and duration of incapacitating episodes necessitating bed rest and treatment by a physician. The examiner should describe all symptomatology of the veteran's back disability and all manifestations of such. The rationale for all opinions expressed should also be provided. 4. A VA examination of the shoulders bilaterally should also be conducted. The entire claims file must be made available to the physician designated to examine the veteran, and the examination report should reflect discussion of his documented medical history and assertions. All indicated tests and studies (including X- ray films) should be accomplished (with all findings made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the veteran's shoulders. If pain on motion is observed, he should indicate the point at which pain begins. The physician should also indicate whether, and to what extent, the veteran experiences likely functional loss of the shoulders due to pain and/or any of the other symptoms noted above during flare- ups and/or with repeated use; to the extent possible, he should express such functional loss in terms of additional degrees of limited motion of the shoulders. The examiner should indicate as to each side (a) whether motion of the arm is possible to the shoulder level, or to midway between the side and shoulder level, or is limited to 25 degrees from the side; and (b) whether there is ankylosis of the scapulohumeral articulation, and if so, whether the ankylosis is favorable, intermediate between favorable and unfavorable, or unfavorable. The examination should also clarify which shoulder represents the veteran's major or minor upper extremity. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached, in a printed (typewritten) report. 5. The RO should afford the veteran a comprehensive examination to assess the orthopedic and neurological symptomatology related to the veteran's service connected disorders of both hands, characterized as degenerative joint disease and peripheral neuropathy. The veteran's claims folder, and a copy of this remand, should be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. All indicated tests and studies (including X-ray films) should be accomplished (with all findings made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must determine and document which of the veteran's hands is his dominant hand, and ascertain whether, and to what extent, the veteran's hand disorders manifest any complete or incomplete paralysis. Symptoms including the degree of sensory loss; and loss of motion, function and grip strength should be documented. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the veteran's hands. If pain on motion is observed, the examiner should indicate the point at which pain begins. The physician should also indicate whether, and to what extent, the veteran experiences likely functional loss of the hands due to pain and/or any of the other symptoms noted above during flare- ups and/or with repeated use; to the extent possible, he should express such functional loss in terms of additional degrees of limited motion of the hands. 6. Thereafter, the claims folder should be reviewed to ensure that the foregoing requested development has been completed. In particular, the examination report(s) must be looked at to ensure that it is responsive to and in compliance with the directives of this remand and if not, corrective procedures should be implemented. See Stegall v. West, 11 Vet. App. 268 (1998). 7. The RO must develop and adjudicate the question of whether the May 1, 1981, rating action, which denied entitlement to service connection for right knee disability, must be reversed or amended on the basis of CUE. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). If CUE is not found in the May 1, 1981, rating action, the veteran must be notified of that decision, as well as his appellate rights. If the RO receives a timely NOD with respect to the CUE decision, the RO must issue the veteran a SOC. The veteran must be notified of all the steps necessary to perfect an appeal with respect to that issue, and he must be afforded an opportunity to do so. 38 U.S.C.A. § 7105 (West 2002). Thereafter, if in order, the case should be returned to the Board for further appellate action. 8. After an appropriate period of time, or after the veteran indicates he has no further evidence to submit, his increased rating claims must be readjudicated to include consideration of all of the pertinent evidence added to the record since the issuance of the SOC in February 2006. If any claim is not resolved to the appellant's satisfaction, the RO should provide the appellant and his representative a SSOC and an appropriate period of time should be allowed for response. Thereafter, if in order, the case should be returned to the Board for further appellate action 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs