Citation Nr: 1006580 Decision Date: 02/23/10 Archive Date: 03/02/10 DOCKET NO. 05-36 102 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a vision disorder, including as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to April 1966. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 decision by the RO in Houston, Texas that in pertinent part, denied service connection for bilateral hearing loss, hypertension, PTSD, and vision loss. A videoconference hearing was held before the undersigned Veterans Law Judge in January 2010. The issue of entitlement to service connection for a vision disorder, including as secondary to service-connected diabetes mellitus, is 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. In January 2006, prior to the promulgation of a decision in the present appeal, the Board received notification from the Veteran that he wished to withdraw his Substantive Appeal as to the issues of service connection for bilateral hearing loss and hypertension. 2. The preponderance of the evidence fails to establish that the Veteran suffers from PTSD as a result of a verified or corroborated stressor which occurred during service. 3. An acquired psychiatric disorder (other than PTSD) began many years after active duty and was not caused by any incident of service. CONCLUSIONS OF LAW 1. As to the issues of service connection for bilateral hearing loss and hypertension, the criteria for withdrawal of a Substantive Appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 2. The criteria for establishing service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2009). 3. An acquired psychiatric disorder (other than PTSD) was not incurred, directly or presumptively, in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2004. An October 2006 letter addressed the rating criteria and effective date provisions that are pertinent to the appellant's claim. The claim was last readjudicated in a July 2009 supplemental statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records and service personnel records, attempted to verify in-service stressors, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board acknowledges that the Veteran has not been afforded a VA examination to determine whether his claimed depression, anxiety, and adjustment disorder are related to service. In the present case, the Veteran does have current disabilities, but there is no credible evidence establishing that an event, injury, or disease occurred in service pertaining to these conditions. Under these circumstances, there is no duty to provide a medical examination or obtain a medical opinion. 38 C.F.R. § 3.159(c); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512, 518 (2004); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Service Connection for Bilateral Hearing Loss and Hypertension In a November 2004 decision, the RO denied service connection for bilateral hearing loss and hypertension. A notice of disagreement was received from the appellant as to these issues in April 2005. A statement of the case was issued in August 2005. A Substantive Appeal (VA Form 9) was received from the appellant in October 2005. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran, via a letter received by the RO in January 2006, has withdrawn his appeal as to the issues of service connection for bilateral hearing loss and hypertension, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Service Connection for an Acquired Psychiatric Disorder to include PTSD Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of DSM-IV]; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service personnel records reflect that the Veteran was stationed in Vietnam from June 14, 1965 to October 1, 1965, and participated in counterinsurgency operations, Vietnam. His primary military occupational specialty was as an aviation ordinance man, and his service personnel records are negative for combat awards or citations. Service treatment records are negative for complaints, treatment, or diagnosis of a psychiatric disorder. Service treatment records are also negative for any combat wounds. On separation medical examination in April 1966, the Veteran's psychiatric system was listed as normal. Post-service medical records are negative for treatment of a psychiatric disorder until May 2004. A VA summary of active health problems dated in April 2004 reflects that the Veteran was not being treated for any psychiatric disorder, although he was being treated for sleep apnea. In March 2004, the Veteran filed a claim for service connection for PTSD. Subsequent VA outpatient medical records reflect treatment for a variety of conditions. His active problem lists reflect that he has been treated for antisocial personality disorder and adjustment disorder with mixed anxiety and depressed mood. In May 2004, the Veteran was seen for complaints of depression, and was diagnosed with depression. Medication was prescribed. At a September 2004 VA neurological examination, the examiner noted that the Veteran had a history of adjustment disorder with mixed anxiety and depressed mood. At a September 2004 VA PTSD examination, the examiner noted that the claims file had been reviewed. The Veteran reported that being in the military had changed him, and that before service he was "happy-go-lucky", and after service he could not stand to be yelled at and had beat people up so that he could find work. He said he now becomes enraged over little things. He said that one time every two or three weeks he dreamed about "things" that woke him up sweating. He said these began around 1971. He reported that he drank heavily from 1966 to 1988. He reported a history of arrests for racketeering, strong-arming, counterfeiting, and possession of a controlled substance, with some time in prison for some of these offenses. With respect to his military service, he said he was in the Chu Lai area of Vietnam from May to October 1965. He denied any wounds or psychiatric treatment in service. He said he was not scared in the military, but related one incident in Vietnam in which his friend T.R. went out with a six-man crew and the Veteran was in a bunker with another friend, R. They had not been told that T.R. was in the field, and when the Veteran and R. saw movement, R. discharged his weapon. T.R. then stood up. The Veteran said he was scared that they could have killed T.R. During the examination the Veteran said he was concerned about the violence he perpetrated in the Marines, and he never feared for his own life, and never experienced horror or helplessness because he knew what he could do to stop others. He said he had had dreams about killing T. or about R. being in a bad situation, such as being tortured. The Axis I diagnosis was major depressive disorder, recurrent, moderate. The VA examiner opined that the Veteran did not meet the criteria for PTSD given that he did not respond to either reported event with fear or fear for his own life, but that he met the criteria for major depressive disorder. In October 2005, the Veteran submitted a stressor statement in which he related that on one occasion during service in Vietnam, he was on guard duty and "was unaware that we had a patrol out. When they were coming in, I also shot and killed their squad leader, T.R., and to this date very thankful I did not hurt him." He also related that on another patrol, he and others were sent out to find some guys that had gone out and not returned. He said they found GSgt. Dingwall and Sgt. Smith's beheaded bodies in about September 1965. He also said that their base experienced incoming RPGs, fire fights, and Vietcong coming into the perimeter, and he received a shrapnel injury to the forehead, and that these events occurred between June 1965 and October 1967. VA outpatient treatment records dated in 2005 reflect treatment for a psychiatric disorder variously diagnosed as depression and PTSD. An August 2005 psychiatric consult reflects that the Veteran reported the following in-service stressors: sharing a tent with other marines, one of whom had his throat cut by another marine because of a personal conflict. He did not see this incident. He said his unit hid in the fields when Viet Cong searched the village for his unit. He saw a pregnant woman shot and killed after she approached his unit while strapped with explosives. The examiner diagnosed depressive disorder (agitated), history of alcohol abuse "no" in complete remission, and history of cocaine abuse. The Axis II diagnoses were personality disorder, antisocial traits. The examiner opined that the Veteran's history illustrated a lifestyle of acting out, verbal and physical conflicts, impulsiveness, encounters with legal authorities which are very consistent of persons with strong antisocial personality traits. She stated that he had had time to learn more about PTSD but she did not detect any significant level of combat-related PTSD. She opined that the Veteran's motive for coming to the mental health clinic was for secondary gain. A September 2005 mental health clinic note reflects that the Veteran reported PTSD symptoms, including a traumatic event, which was not identified. The examiner diagnosed PTSD and prescribed medication. A November 2005 VA mental health clinic note reflects that the Veteran reported that he was a Vietnam combat veteran. He complained of recurring war-related nightmares, and said he continued to watch Vietnam war stories which he admitted probably contributed to his recurring nightmares. He reported significant financial difficulties including a recent bankruptcy filing. The Axis I diagnosis was PTSD with depressive disorder (agitated), history of alcohol abuse "no" in complete remission, and history of cocaine abuse. The Axis II diagnosis was personality disorder, antisocial traits. A December 2005 VA outpatient treatment record reflects that he was diagnosed with "depression, probably PTSD" and was taking Zoloft. In April 2006 he was diagnosed with PTSD with depressive disorder (agitated), and personality disorder, antisocial traits. A September 2006 mental health clinic note diagnosed depressive disorder and personality disorder, antisocial traits. At a February 2006 VA neuropsychiatric examination, the Veteran complained of recurring dreams of "Vietnam and stuff". He added that they were about old friends. The Veteran was asked about his in-service stressor incident, and he said that he almost killed his best friend. He also said he was part of a team that picked up the bodies of two beheaded soldiers and brought them back to camp. The examiner diagnosed major depressive disorder, in partial remission, and personality disorder not otherwise specified with antisocial features. The examiner noted that he had reviewed the claims file and the Veteran's electronic medical records. He stated that PTSD was not diagnosed because the Veteran did not report horror, helplessness or fear during his combat experiences. His stressor situations were considered to marginally meet the diagnostic criteria under the DSM-IV. The examiner indicated that the Veteran clearly had depression, and a personality disorder which was the cause of his detachment, impulsive behaviors, anger, and acting out. The examiner stated, that while the Veteran had some features of PTSD, he did not present the full symptom criteria, and some symptoms that could be attributed to the PTSD were considered to be more likely to be the result of his depression. A December 2007 letter from a private family physician, P.W., MD, reflects that the Veteran complained of wide mood swings including anxiety and depression as well as a social phobia of long duration. The Veteran reported that he was a Vietnam combat veteran. Dr. W. noted that the Veteran had a past medical history of antisocial personality disorder and adjustment disorder with depressed mood. He was currently taking lorazepam and sertraline. Dr. W. stated that the Veteran's complaints of diabetes mellitus, neuropathy, wide mood swings with anxiety and depression as well as social phobia, eczema as well as possible cancer diathesis would appear to be entirely consistent with a PTSD and exposure to Agent Orange. Subsequent VA medical records dated from 2007 to 2009 are negative for treatment or diagnosis of PTSD. Such records reflect treatment for multiple medical problems, and show that his active problem list included antisocial personality disorder and adjustment disorder with mixed anxiety and depression. He was taking sertraline for depression and lorazepam for anxiety. In March 2009, the RO received a copy of the command chronology for the Veteran's unit during September 1965, from the National Archives and Records Administration (NARA). The NARA indicated that unit records from the Marine Corps during this period consisted almost solely of unit command chronologies. This chronology did not verify any of the Veteran's reported stressors. A July 2009 VA memorandum by a Joint Services Records Research Center (JSSRC) coordinator determined that there was insufficient information to corroborate the stressful events described by the Veteran, and that all efforts to obtain the necessary information had been exhausted, and further efforts would be futile. The coordinator noted that available records showed that MSgt. Dingwall went missing in July 1965 in Vietnam, and his body was never recovered, and concluded that the Veteran's reported stressor was not supported by the historical evidence of record. With respect to the claim for PTSD, and after a review of the evidence of record, the Board finds that although some examiners have diagnosed PTSD, this disorder was not diagnosed in two VA compensation and pension examinations. Although the Veteran has submitted a diagnosis of PTSD in the context of treatment at the VA, this diagnosis must be connected to a verified in-service traumatic event in order to be service connected. There has been no such verification of a stressor in this case. As the Veteran's claim is not substantiated by credible supporting evidence that the claimed in-service stressor occurred, the criteria for a grant of service connection are not met, and the claim for service connection for PTSD must be denied. The Board notes that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In other words, the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a current disability. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Thus, because the most probative evidence shows that the Veteran does not currently have PTSD diagnosed under the criteria of DSM-IV, service connection for that disability is not warranted. With respect to the claim for service connection for an acquired psychiatric disorder other than PTSD, the Board notes that there is no medical evidence of a psychiatric disorder in service or for approximately 38 years after service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). The Veteran has asserted that he incurred a psychiatric disorder during his period of active service. The Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau, supra. The Courts have in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan, supra. However, here, the Veteran has not reported that he had symptoms of depression and anxiety ever since service; thus, continuity of psychiatric symptoms since service is neither shown nor alleged. As to a causal relationship between his current psychiatric disorder and service, the Veteran is not qualified to offer an opinion because the question of etiology of his current depression, anxiety, and adjustment disorder is not lay-observable and requires medical expertise. There is no competent evidence of record linking the current depression, anxiety, and adjustment disorder, first shown decades after active duty, to any incident of service. Many of the medical records reflect that the Veteran has been diagnosed with antisocial personality disorder. For purposes of entitlement to benefits, the law provides personality disorders are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Thus, VA regulations specifically prohibit service connection for personality disorders unless such disorder was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). There is no evidence of such superimposed disability. Therefore, entitlement to service connection for the Veteran's antisocial personality disorder is not warranted. The weight of the competent and credible evidence demonstrates that the Veteran's current depression, anxiety, and adjustment disorder began many years after his active duty and was not caused by any incident of service. The weight of the evidence does not show that the Veteran has PTSD due to a verified in-service traumatic event. As the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder to include PTSD, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER The appeal of the RO's denial of service connection for bilateral hearing loss and hypertension is dismissed. Service connection for an acquired psychiatric disorder, to include PTSD, is denied. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim for service connection for a vision/eye disorder. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran and his representative contend that he has a vision disorder that was either incurred in service or is related to his service-connected diabetes mellitus. In this regard, the Board notes that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Moreover, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that 38 C.F.R. § 3.310 (pertaining to secondary service connection) was amended effective October 10, 2006. The Veteran has not been notified of the amendment to 38 C.F.R. § 3.310 and such must be done prior to Board review. At his January 2010 Board hearing, the Veteran testified that a VA physician, Dr. W., of the Beaumont VA outpatient clinic, diagnosed him with diabetic retinopathy in July or August 2009. The most recent VA medical records on file are dated in June 2009. The Board finds that the RO must attempt to obtain this VA treatment record. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Ongoing pertinent medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). A VA diabetes mellitus examination was performed in May 2007, and the examiner did not provide an opinion as to whether the Veteran has a current eye disorder that was aggravated by service-connected diabetes mellitus, although the examiner did state that there were no visual symptoms related to diabetes. As such, the Board finds that a remand is required to obtain a clarifying medical opinion as to the relationship, if any, between the Veteran's service-connected diabetes mellitus and any current vision disorder, to include whether there is any aggravation of a non-service-connected disability by a service-connected disability. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with updated notice regarding his claim for direct and secondary service connection for an eye/vision disorder, including notice of the amendment to 38 C.F.R. § 3.310. The Veteran and his representative should be given an opportunity to respond. 2. The RO/AMC should obtain any pertinent VA or private medical records relating to treatment for an eye/vision disorder that are dated since June 2009 and are not already on file. In particular, the RO/AMC should attempt to obtain any available VA medical records from the Beaumont VA outpatient clinic dated in July and August 2009, relating to treatment by Dr. W. for diabetic retinopathy or any eye condition. 3. Forward the Veteran's claims folder to an appropriate VA physician to obtain a medical opinion regarding the relationship, if any, between his service- connected diabetes mellitus and any current eye disorder. If the physician determines that the opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate examination. Following a complete review of the relevant evidence, the physician must address the following questions: (a) Is it at least as likely as not (50 percent or higher degree of probability) that any current chronic eye/vision disability was caused by his service- connected diabetes mellitus? (b) Is it at least as likely as not that the Veteran's service-connected diabetes mellitus aggravated any current eye/vision disorder? The physician is informed that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the physician should indicate, to the extent possible, the approximate level of severity of the left hip disability (i.e., a baseline) before the onset of the aggravation. If the physician must resort to speculation to answer any question, he or she should so indicate and explain why it would be speculative to respond. The examiner is also requested to provide a rationale for any opinion expressed. 3. After completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record since the most recent supplemental statement of the case (SSOC), the RO must readjudicate the Veteran's claim. If the claim remains denied, the RO should issue an appropriate SSOC that includes citation to 38 C.F.R. § 3.310 as well as Allen, supra, and provide the Veteran and his representative with an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs