Citation Nr: 0821455 Decision Date: 07/01/08 Archive Date: 07/14/08 DOCKET NO. 04-42 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for cellulitis. 2. Whether new and material evidence has been received to reopen the claim of service connection for intertrigo of the feet. 3. Whether new and material evidence has been received to reopen the claim of service connection for post-traumatic stress disorder (PTSD). 4. Entitlement to an effective date earlier than October 23, 1997 for a compensable evaluation for tinnitus, to include on the basis of clear and unmistakable error. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from January 1962 to July 1965. Service connection for left lower extremity cellulitis with intertrigo of the feet and PTSD was initially denied by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio by rating decisions dated in August 1970 and June 2001, respectively. The veteran did not file an appeal to either action within one year of the rating decision and these determinations are final. See 38 C.F.R. § 20.1103 (2007). The current appeal comes before the VA Board of Veterans Appeals (Board) from RO rating decisions that declined to reopen the claims of service connection for cellulitis, intertrigo of the feet and PTSD, and denied an effective date earlier than October 23, 1997 for a compensable evaluation for tinnitus, to include on the basis of clear and unmistakable error. The veteran was afforded personal hearings at the RO in April 2005 and by videoconference before a Veterans Law Judge sitting at Washington, DC in June 2007. The transcripts are of record. Following review of the record, the issues of entitlement to service connection for cellulitis, intertrigo of the feet and PTSD will be 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. Entitlement to service connection for cellulitis and intertrigo of the feet was denied by an RO decision dated in August 1970; the appellant did not file a timely appeal and that determination became final. 2. Evidence received subsequent to the August 1970 RO determination, when considered by itself or together with previous evidence of record, relates to an unestablished fact necessary to support the claim of service connection for left leg cellulitis and intertrigo of the feet. 3. Service connection for tinnitus was granted by rating decision dated in September 1970; a zero percent evaluation was established effective from February 1970. 4. On March 10, 1976, VA rating criteria for evaluating persistent tinnitus were revised to include a separate compensable rating for tinnitus due to acoustic trauma. 5. A claim for an increased rating for hearing impairment was received on October 23 1998. 6. A 10 percent rating for tinnitus was granted by rating action dated in March 2000, effective from October 23, 1997. 7. The RO's rating decisions did not contain any kind of error of fact or law that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error; the rating decisions constituted valid exercises in rating judgment and interpretation of the evidence of record and were not egregious or fatally flawed. CONCLUSIONS OF LAW 1. The August 1970 RO decision that denied service connection for cellulitis with intertrigo of the feet is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2007); 38 C.F.R. § 20.1103 (2007). 2. The evidence received subsequent to the August 1970 RO decision is new and material and the veteran's claims of entitlement to service connection for left lower extremity cellulitis and intertrigo of the feet are reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 3. The criteria for an effective date prior to October 23, 1997 for an increased rating for tinnitus are not met. 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.114, 3.400 (2007). 4. The August 1970 and March 2000 RO rating decisions did not involve clear and unmistakable error. 38 U.S.C.A. § 7105 (d) (West 2002 & Supp. 2007); 38 C.F.R. § 3.105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Considerations - VA's Duty to Assist the Veteran As a preliminary matter, it should be noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was promulgated in November 2000, and has imposed duties on VA to provide notice and assistance to claimants in order to help them substantiate their claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007). However, the Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A(a)(2). In view of the Board's favorable decision with respect to the threshold issues of whether new and material evidence has been received to reopen the claims of service connection for left lower extremity cellulitis and intertrigo of the feet, further assistance is unnecessary to aid the appellant in substantiating these claims. Additionally, VCAA notice is not required with respect to the issue of entitlement to an effective date earlier than October 23, 1997 for a compensable evaluation for tinnitus, to include on the basis of clear and unmistakable error. This is because it involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit), as well as a claim for review of a prior final regional office decision on the basis of clear and unmistakable error. See Parker v. Principi, 15 Vet. App. 407 (2002). Factual Background and Legal Analysis 1. New and material evidence to reopen the claims of service connection for left lower extremity cellulitis and intertrigo of the feet. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2007); 38 C.F.R. § 3.303 (2007). To establish service connection, there must be evidence of an etiological relationship between a current disability and service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2007). Service connection may 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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2007). As noted previously, the RO denied service connection for left leg and feet cellulitis and intertrigo of the feet by a determination dated in August 1970. The appellant attempted to reopen his claim for such in March 2002. The Board must therefore review all of the evidence submitted since the August 1970 rating decision to determine whether the appellant's claim of service connection for cellulitis and intertrigo should be reopened and re-adjudicated on a de novo basis. See Evans v. Brown, 9 Vet. App. 273 (1996). A claim that is the subject of a final decision can only be reopened upon the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007). The Board points out that 38 C.F.R. § 3.156(a) which defines new and material evidence was amended in 2001 and is applicable to claims to reopen filed on or after August 29, 2001. See 66 Fed. Reg. 45620 (2001). The amended version of 38 C.F.R. § 3.156 applies in the instant case as the appellant's claim to reopen was received after August 29, 2001. New evidence is defined in 38 C.F.R. § 3.156(a) (2007) as evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the August 1970 rating decision included service medical records that showed that the veteran was admitted in January 1964 with a three-day history of pain and swelling of the left foot. He was placed on bed rest and begun on a course of penicillin, topical medication and other remedial measures, including incision and drainage. Improvement was shown. At discharge one month later, he was reported to be afebrile, asymptomatic and fully ambulatory with complete healing of the feet. On examination in May 1965 for separation from service, it was recorded that he had been treated for cellulitis of the left foot but currently had no complications or sequelae. The feet were evaluated as normal. Pursuant to the filing of a claim, the veteran was afforded a VA examination in June 1970 where he was observed to have to no visible scars, lymph node enlargement, or swelling or either leg or foot. A diagnosis of cellulitis of feet, healed was rendered. By rating action dated in August 1970, service connection for left lower extremity cellulitis and intertrigo of the feet was denied on the basis that no current disability was clinically demonstrated. The veteran was notified of this determination by letter dated in October 1970 but did not file a timely appeal. He attempted to reopen his claim for such in a letter from his representative dated in March 2002. The evidence received after the August 1970 denial of the claim of service connection for cellulitis and intertrigo of the feet includes private clinical records dating from 1990 showing that the veteran was treated in June and July of that year for complaints of redness and swelling of an unspecified foot. On the initial visit, it was noted that he had stepped on a nail one week before and had not been treated. Cellulitis was observed but no drainage was noted. An antibiotic was prescribed and improvement was shown. Voluminous VA outpatient clinical record reflect treatment for numerous complaints and disorders, including bilateral foot symptoms diagnosed as hyperhidrosis, interdigital tinea and pitted keratolysis between 2002 and 2003. A medical report dated in March 2006 was received from C.N.B., M.D., who stated that the veteran's medical records had been reviewed as well as the medical literature, and that it was his opinion that the veteran's left foot recurrent cellulitis and bilateral intertrigo were both related to service. The physician added that it was known that cellulitis could scar the vascular structures of the foot thereby making that extremity more susceptible to recurrent infections and blood clots. The Board finds that the additional information, specifically the opinion by Dr. B. attributing recurrent left foot cellulitis and bilateral intertrigo to service, when viewed in the context of the veteran's service medical records, provides a nexus between the currently claimed disabilities and symptoms in service. This evidence clearly tends to support the veteran's claims in a manner not previously demonstrated. It must therefore be considered in order to fairly decide the merits of the claims. Accordingly, the Board finds that new and material evidence has been submitted and the claims of entitlement to service connection for cellulitis of the left lower extremity and bilateral intertrigo of the feet are reopened. These issues will be further addressed in a remand below. 2. Effective date earlier than October 23, 1997 for a compensable evaluation for tinnitus, to include on the basis of clear and unmistakable error. The veteran seeks an earlier effective date for a 10 percent disability rating for service-connected tinnitus. He presented testimony on personal hearings to the effect that he should have been granted a compensable rating going back to the effective date of service connection, or at least from the date of liberalizing legislation in 1976 that provided for a 10 percent disability evaluation for tinnitus as the result of acoustic trauma. It is asserted that not assigning a 10 percent disability evaluation prior to October 1997 constituted clear and unmistakable error. Service connection for tinnitus was granted by RO rating action dated in September 1970. A noncompensable disability evaluation was assigned effective from February 24, 1970. By rating action dated in March 2000, the zero percent disability evaluation for tinnitus was increased to 10 percent, effective from October 23, 1997. Absent a finding of clear and unmistakable error, the assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007) and 38 C.F.R. § 3.400 (2007). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2007). The Board points out that at the time of the 1970 RO decision, the regulations provided that tinnitus was to be assigned a noncompensable disability rating under Diagnostic Code 6260, and if applicable, would also be rated under Diagnostic Codes 8045 and 8046. 38 C.F.R. § 4.86, Diagnostic Code 6260; § 4.124a, Diagnostic Codes 8045, 8046 (1971). Diagnostic Code 8045 specified that purely subjective complaints, such as headache, dizziness, insomnia, and tinnitus, recognized as symptomatic of brain trauma would be rated 10 percent under Diagnostic Code 9304. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (1971). Diagnostic Code 8046 was for rating cerebral arteriosclerosis. 38 C.F.R. § 4.124a, Diagnostic Code 8046 (1971). Effective March 10, 1976, Diagnostic Code 6260 was revised to allow for a 10 percent rating for persistent tinnitus that was a symptom of head injury, concussion, or acoustic trauma. This amendment is considered to be a liberalization of the rating code because prior to March 10, 1976, tinnitus was only compensable if it were due to a head injury, concussion, or cerebral arteriosclerosis. The March 10, 1976 amendment liberalized the rating criteria to include compensation for tinnitus caused by acoustic trauma. An amendment in effect from June 10, 1999 to June 12, 2003 also made recurrent tinnitus a compensable disability under Diagnostic Code 6260. An amendment effective June 13, 2003, removed the requirement that tinnitus be a symptom of head injury, concussion, or acoustic trauma. Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. In no event, however, shall such award or increase be retroactive for more than one year from the date on which the veteran submits the application for benefits or the date of administrative determination of entitlement. Id. If a claimant requests review of his claim within one year from the effective date of a liberalizing regulation, benefits may be authorized from the effective date of the liberalizing provisions. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claimant requests review of his claim more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In this instance, the veteran filed a claim for an increased rating for hearing impairment that was received on October 23, 1998. The claim was granted by rating decision in March 2000, and the veteran was assigned a 10 percent disability rating, effective from October 23 1997. An effective date of one year prior to the date of the claim may be assigned for claims filed more than one year after a regulatory change. Because the veteran's claim was filed more than one year after the March 10, 1976 change in law, he was entitled to an effective date beginning no more than one year prior to the claim received on October 23, 1998. Therefore, the date of receipt of the veteran's claim is the primary issue for consideration. A claim is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199. Once a formal claim for compensation has been allowed or disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of VA examination or VA hospitalization will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(b)(1). For records from VA medical facilities, the date of the actual treatment is accepted as the date of the claim. However, for other medical records, the date of receipt by VA is fixed as the date of the claim. 38 C.F.R. § 3.157. The record shows that the first claim for increased compensation benefits was date stamped as received at the RO on October 23, 1998. The claims file does not contain any communication from the veteran between 1970 and 1998 that may be construed as a request to reconsider the tinnitus rating before the formal claim received on October 23, 1998. See § 3.155. Accordingly, the earliest date that may be assigned for the compensable rating for tinnitus is one year prior to date of receipt of the claim received on October 23, 1998. The Board acknowledges the veteran's contentions and testimony that he had persistent tinnitus over the years, and that the compensable rating for tinnitus should date back at least to the liberalizing legislation that allowed for a 10 percent rating for tinnitus due to acoustic trauma. However, although the veteran may well believe that the effective date of the 10 percent evaluation should be earlier than October 1997, the Board is constrained by law from awarding benefits more than one year before he filed his increased rating claim in October 1998. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). Therefore, whether or not the veteran had tinnitus caused by acoustic trauma prior to October 1997 is irrelevant for the purposes of establishing an earlier effective date in this instance. Although the veteran may also feel that he is entitled to an earlier effective date because VA did not inform him of the change in regulations, the Court of Appeals for Veterans Claims, citing an opinion from the United States Supreme Court, has held that everyone dealing with the Government is charged with knowledge of Federal statute and agency regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991). Furthermore, VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991). Therefore, while it is unfortunate that the veteran was unaware of his eligibility for increased benefits, that factor does not provide a basis for a favorable outcome in this instance. The Board finds that as the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, because no reasonable possibility exists that would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). Clear and unmistakable error is a very specific and rare kind of error of fact or law that is undebatable, and when called to the attention of later reviewers, compels the conclusion to which reasonable minds could not differ that the result would have been manifestly different but for the error. Fugo v. Derwinski, 6 Vet. App. 40, 43 (1993). To establish a valid clear and unmistakable error claim, the appellant must show that either the correct facts as they were known at the time were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Grover v. West, 12 Vet. App. 109, 112 (1999) (citing Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)); Russell v. Principi, 3 Vet. App. 310, 313 (1992). It appears in this instance that the veteran is essentially requesting that the Board reevaluate the evidence and reach a different result than that concluded by the RO in its September 1970 and March 2000 decisions. However, although he clearly disagrees with how the facts were weighed and evaluated at the time of those decisions, this is not tantamount to clear and unmistakable error. See Russell, 3 Vet. App. at 313. The Board does not find that the statutory or regulatory provisions in effect at the time were incorrectly applied by the RO. The failure to correctly apply an applicable law or regulation must be shown undebatably which is not demonstrated in this case. Based on the foregoing, the Board finds that the September 1970 and March 2000 rating determinations were consistent with the law and regulations then in effect. No error is found. As those rating determinations are not shown to be clearly and unmistakably erroneous, they cannot be revised or reversed based on clear and unmistakable error. 38 U.S.C.A. § 5109A (West 2002 & Supp. 2007); 38 C.F.R. § 3.105(a) (2007). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for left lower extremity cellulitis; the claim is granted to this extent. New and material evidence has been received to reopen the claim of entitlement to service connection for intertrigo of the feet; the claim is granted to this extent. An effective date earlier than October 23, 1997 for a compensable evaluation for tinnitus, to include on the basis of clear and unmistakable error, is denied. REMAND The veteran asserts that he now has recurrent left leg cellulitis and bilateral intertrigo from an episode of such in service. As noted previously, the claims folder contains a medical opinion that he continues to be treated for recurrent symptoms and that they are related to active duty. The record reflects that the appellant has not been evaluated for the claimed disabilities since 1970. Therefore a current VA examination, to include a medical opinion is warranted in this regard. The veteran contends that he now has PTSD as the result of traumatic stressors in service that included seeing other patients with missing arms and legs while hospitalized for cellulitis in service, and worry at that time that might be his fate. He testified in June 2007 that he had nightmares about seeing patient injured and maimed while admitted in service, and that this led to diagnosed PTSD. Review of the record discloses that the veteran carries a diagnosis of PTSD that has been attributed to several factors, including an injury on the job in 1984 and combat-related activity. However, the veteran has no medals that denote service in Vietnam or combat elsewhere. On VA examination in July 2005, the examiner found that the veteran's symptomatology met the criteria for PTSD, but added in an addendum dated in August 2005 that the diagnosis of PTSD could not be confirmed. The Board finds that this examination is inadequate for compensation purposes as it is contradictory, and also does not address the veteran's contentions that PTSD is related to his fears and worries about losing his limbs while hospitalized during service. Therefore, a current VA psychiatric examination, to include a medical opinion is warranted in this regard. Additionally, the record reflects that the appellant appears to receive regular VA outpatient treatment. The most recent records date through January 2007. Therefore, records dating from February 2007 should be requested and associated with the claims folder. See Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO must review the claims file and insure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007), the implementing regulations found at 38 C.F.R. § 3.159 (2007), and any other legal precedent are fully complied with and satisfied pertaining to the issues of entitlement to service connection for cellulitis of the left lower extremity and intertrigo, and whether new and material evidence has been received to reopen the claim of service connection for PTSD. The appellant should be advised to submit any evidence he has in his possession in support of the claim. 2. VA outpatient records dating from February 2007 should be requested and associated with the claims folder. 3. Following a reasonable period of time for receipt of any additional information, the appellant should be scheduled for examination by a VA psychiatrist. The claims file and a copy of this remand should be made available to the physician designated to examine the appellant. The examiner should indicate whether or not the claims folder was reviewed. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should comment on the link between the current symptomatology and one or more of the in-service stressors reported by the veteran. The report of examination should include the complete rationale for all opinions expressed. 4. The veteran should be scheduled for an examination by a VA dermatologist to evaluate the veteran's left lower extremity for cellulitis and bilateral lower extremities for intertrigo. All indicated tests and studies should be performed, and clinical findings should be reported in detail and correlated to specific diagnoses. The claims file and a copy of this remand should be made available to the physician designated to examine the appellant. The examiner should indicate whether or not the claims folder was reviewed. A comprehensive clinical history should be obtained. The examination report should include a discussion of the veteran's documented medical history and assertions. Based on a thorough review of the evidence of record, the examiner should provide an opinion, with complete rationale, as to whether it is at least as likely as not (50 percent probability or more) that the veteran now has recurrent cellulitis of the left lower extremity and bilateral intertrigo of the feet that had their onset in or is traceable to active service, or is more likely of post service onset. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean within the realm of possibility, rather that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. 5. The veteran must be given adequate notice of the examinations, to include advising him of the consequences of failure to report under 38 C.F.R. § 3.655 (2007). Copies of the examination notifications should be associated with the claims folder. Failure to appear for examinations should be noted in the file. 6. The RO should ensure that the medical reports requested above comply with this remand, especially with respect to the instructions to provide competent medical opinions. If a report is insufficient, or if the requested action is not taken or is deficient, it should be returned to the examiner for correction. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After taking any further development deemed appropriate, the RO should re-adjudicate the issues on appeal. If a benefit is not granted, the veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board. 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