Citation Nr: 1019237 Decision Date: 05/25/10 Archive Date: 06/09/10 DOCKET NO. 07-19 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral onychomycosis of the big toes. 2. Entitlement to an initial compensable evaluation for status post umbilicus hernia repair with residual scar. 3. Entitlement to an initial evaluation in excess of 10 percent for degenerative disease of the cervical spine. 4. Entitlement to an initial evaluation in excess of 10 percent prior to August 3, 2007, and in excess of 20 percent from August 3, 2007, for lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to May 2004. These matters come before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted entitlement to service connection and assigned of 10 percent ratings for lumbar strain and degenerative disease of the cervical spine as well as noncompensable ratings for bilateral onychomycosis of the big toes and umbilicus hernia repair scar residuals, each effective June 1, 2004. In a September 2008 rating decision, the RO increased the Veteran's evaluation for lumbar strain to a 20 percent rating, effective August 3, 2007. The issue of entitlement to a higher disability evaluation based upon an initial grant of service connection remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). In December 2008, the Veteran submitted a waiver of initial RO review of all pertinent evidence submitted after his formal appeal. Thus, new evidence associated with the file after the December 2008 SSOC will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2009). In December 2009, the Veteran testified at a Travel Board hearing before the undersigned. A transcript is associated with the claims folder. The Veteran, through his representative, indicated at the hearing that there were additional private treatment records that he wanted to submit. The record was held open for a period of 30 days to afford the Veteran an opportunity to submit these records. As additional records were not received, the Board will proceed with appellate review of these matters. Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issues of entitlement to an initial compensable evaluation for status post umbilicus hernia repair with residual scar, evaluation in excess of 10 percent for degenerative disease of the cervical spine and entitlement to an initial evaluation in excess of 10 percent prior to August 3, 2007, and in excess of 20 percent from August 3, 2007, for lumbar strain 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. FINDING OF FACT Bilateral onychomycosis of the big toes did not cover at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed area affected; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were not used during post-service treatment of the disability. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral onychomycosis of the big toes were not met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran filed his claim of service connection for bilateral onychomycosis of the big toes in June 2004. He was notified of the provisions of the VCAA by the RO in correspondence dated in June 2004. This letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. In a February 2005 rating decision, the RO granted entitlement to service connection and assigned an initial noncompensable rating for bilateral onychomycosis of the big toes. The Veteran appealed the assignment of the initial evaluations for those benefits. As noted above, the Veteran's claims for initial ratings for onychomycosis and umbilicus hernia repair scar residuals arise from his disagreement with the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. With respect to the Dingess requirements, in December 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Next, VA has a duty to assist a veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained service treatment records. The Veteran submitted written statements discussing his contentions and private treatment records. He was also provided an opportunity to set forth his contentions during the hearing before the undersigned in December 2009. Next, specific VA medical examinations pertinent to the issue on appeal were obtained in August 2004 and August 2007. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's bilateral onychomycosis of the big toes since the August 2007 VA examination. Indeed, the Veteran testified that the level of severity had remained the same. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. In addition, there is no indication that the VA examiners were not aware of the Veteran's past medical history or that they misstated any relevant fact. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007) (noting that a medical opinion must describe the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Laws and Regulations Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2009), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2009). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has also held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following matters is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Effective October 23, 2008, the Schedule for rating criteria that addresses the evaluation of scars was revised. 73 Fed. Reg. 54,708 (Oct. 23, 2008) (codified at 38 C.F.R. § 4.118). These new criteria apply to applications for benefits received on or after October 23, 2008, or upon request from a veteran who was rated under the applicable criteria before this date. Id. In this case, the Veteran's claims were received prior to this date and, while the Veteran received a copy of the revised regulations in the December 2008 SSOC, the Board has not received a request from the Veteran or his representative to be rated under the revised criteria. Hence, those rating criteria will not be addressed at this time. In this case, the Veteran was assigned an initial noncompensable rating for his service-connected bilateral onychomycosis of the big toes pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813 (2008). Under Diagnostic Code 7813, dermatophytosis is rated as either disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801 to 7805, or as dermatitis under Diagnostic Code 7806, depending upon the predominant disability. As this service-connected disability does not involve the head, face, or neck or involve scarring, the rating criteria for disfigurement of the head, face, or neck under Diagnostic Codes 7800 - 7805 do not apply. Thus, the predominant disability picture is one of dermatitis, which is rated under Diagnostic Code 7806. Under Diagnostic Code 7806, a 10 percent evaluation is warranted when at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12 month period. A 30 percent evaluation is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12 month period. A 60 percent evaluation is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12 month period. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2008). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background and Analysis The Veteran filed his claim for service connection for this disability in June 2004. In an August 2004 VA fee-based examination report, the Veteran reported suffering from bilateral foot fungus since 1994. Current symptoms were listed as constant skin condition with pain and discoloration of the toes that does not involve any areas that are exposed to the sun and did not result in any time lost from work. It was noted that the Veteran received Sporanox during service for less than six weeks. Physical examination findings were noted as signs of skin disease located on the toes with hyperpigmentation of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, Keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, limitation of motion, or burn scars present. Skin lesion coverage was noted to be 0% of the exposed area and 0.2 % relative to the whole body. The examiner diagnosed bilateral onychomycosis of the big toes, indicating that skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. Private treatment notes dated in December 2005 and January 2006 detailed continued treatment for onychomycosis with Lamisil. Physical examination findings were noted as thickening and discoloration of the bilateral crease and 2nd toes as well as onychomycosis on 1st and 4th digits of right foot. A January 2006 toenail pathology report revealed growth of several different saprophytic molds. In an August 2007 VA fee-based examination report, the Veteran reported symptoms including constant itching, shedding, and pain from the toenails. The examiner indicated that the condition did not involve sun-exposed areas (including the head, face, hands, and neck) and described functional impairment due to pain over the great toe with prolonged walking. Treatment in the past 12 months for the condition included topical medicine. Physical examination findings were noted as bilateral onychomycosis of the great toes with noted tenderness to palpation of the nail, inflexibility of the toenails, and abnormal texture. Site location was listed as right and left great toes with noted hyperpigmentation and crusting of the nail. There was no ulceration, exfoliation, tissue loss, induration, or sun exposed area. Skin lesion coverage was noted to be 1 % relative to the whole body. The examiner diagnosed bilateral onychomycosis of the great toes, indicating that skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. During his December 2009 hearing, the Veteran indicated that his service-connected onychomycosis was a recurrent problem. He reported that he uses over the counter medications during flare-ups. As noted above, under Diagnostic Code 7806, a 10 percent evaluation is warranted when at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of exposed areas are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12 month period. Evidence of record detailed that the Veteran's service-connected skin disability covers less than 5 % of his entire body and 0 % of exposed areas. While the Veteran received treatment with Sporanox during active duty, post- service findings of record detailed treatment with topical and over the counter medications but no systemic therapy. For all the foregoing reasons, there is no basis for assignment of an initial compensable evaluation for bilateral onychomycosis of the big toes. Additional Considerations In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report his bilateral big toe symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Board has weighed the Veteran's statements as to his bilateral big toe onychomycosis a symptomatology and finds his current recollections and statements made in connection with the claims for benefits to be of lesser probative value than the other clinical evidence of record, which does not indicate that the assignment of any additional increased evaluations are warranted. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). For all the foregoing reasons, the Veteran's claim for initial compensable evaluation for bilateral onychomycosis of the big toes must be denied. The Board has considered staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2009), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his service-connected bilateral big toe onychomycosis that would take the Veteran's case outside the norm so as to warrant the assignment of any extraschedular rating. There is simply no objective evidence showing that the service-connected bilateral big toe onychomycosis has alone resulted in marked interference with employment (i.e., beyond that contemplated in the assigned noncompensable rating). Moreover, the rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. ORDER Entitlement to an initial compensable evaluation for bilateral onychomycosis of the big toes is denied. REMAND The Board's review of the claims file reveals that further development on the matters of entitlement to an initial compensable evaluation for status post umbilicus hernia repair with residual scar, evaluation in excess of 10 percent for degenerative disease of the cervical spine and entitlement to an initial evaluation in excess of 10 percent prior to August 3, 2007, and in excess of 20 percent from August 3, 2007, for lumbar strain is warranted. The Veteran has consistently complained that his status post umbilicus hernia repair with residual scar causes functional impairment. He says the scar or effected area prevents him from engaging in heavy lifting activities and some forms of exercise (sit-ups). He states that he experiences a "catching sensation" with certain movements. He adds that bowel movements cause pain in the area of the scar. The August 2007 QTC examination merely indicated the Veteran experiences tenderness over the scar. No findings were made with regard to functional impairment. As such, the August 2007 examination is deemed inadequate for rating purposes. The Board notes that the Veteran last had a VA examination evaluating his service-connected lumbar strain and degenerative disease of the cervical spine in August 2007. During his December 2009 hearing, the Veteran reported that his lumbar strain and cervical spine disabilities had increased in severity in the last two years with more severe symptomatology, including increased medication intake, trouble sleeping, decreased cervical spine range of motion, increased functional limitation, and numbness and tingling in the lower extremities. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the RO should arrange for the Veteran to undergo a VA spine examination at an appropriate VA medical facility to determine the severity of his service-connected lumbar spine and cervical spine disabilities. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated him for his service-connected status post umbilicus hernia repair with residual scar, lumbar spine, and cervical spine disabilities. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA scar or muscle examination to determine the current nature and severity of his service-connected status post umbilicus hernia repair with residual scar. The examiner should indicate whether the scar is superficial, poorly nourished, or with repeated ulceration; or is tender and painful on objective demonstration, as well as document the size of the scar in square centimeters. The examiner should comment on any functional impairment caused by the scar. If applicable, identify the muscle group affected and state whether there is disability that could be considered slight, moderate, moderately severe, or severe. The examiner should also provide a full description of the effects of the scar upon the Veteran's employment and daily life, including any manifest limitation of activity alleged by the Veteran. The claims folder must be made available to and be reviewed by the examiner in connection with the examination. 3. Thereafter, the AMC/RO is to arrange for the Veteran to undergo a VA spine examination by a physician to determine the current severity of his service- connected lumbar strain and degenerative disease of the cervical spine. The Veteran's claims folder must be made available to the physician for review in this case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests and studies are to be performed. All examination findings, along with the complete rationale for all opinions expressed, should also be set forth in the examination report. The examiner should provide specific findings as to the range of motion of the cervical spine and thoracolumbar spine. Any pain during range of motion testing should be noted, and the examiner should accurately measure and report where any recorded pain begins and ends when measuring range of motion. The examiner should also note whether there is any objective evidence of weakness, excess fatigability, and/or incoordination associated with the Veteran's disabilities. If observed, the examiner should specifically comment on whether the Veteran's range of motion is affected, and if possible, provide the additional loss of motion in degrees. The examiner should also state whether there is any abnormality of the cervical or thoracolumbar spine, including evidence of ankylosis. After considering the Veteran's documented medical history, the examiner should identify all impairments associated with the Veteran's disabilities, including any associated neurological impairment or bladder, bowel, or sexual dysfunction. With regard to any neurological disability resulting from the service-connected disabilities, the specific nerve(s) affected should be specified, together with the degree of paralysis caused by the service-connected disabilities. The examiner should also document the number of weeks, if any, during the past 12 months, that the Veteran has had incapacitating episodes, defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations--specifically to include consideration of all of the evidence added to the record since the December 2008 SSOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2009). ______________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs