Citation Nr: 1030675 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 05-35 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection Chronic Obstructive Pulmonary Disorder (COPD). 2. Entitlement to service connection for vision loss. 3. Entitlement to a compensable initial rating for service- connected bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active duty service from October 1961 to January 1966. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board, most recently in August 2009, when it was remanded for additional development. The Veteran testified before the Board at a videoconference hearing in August 2007. A transcript of the hearing is of record. As discussed below, certain critical aspects of the Board's August 2009 remand instruction do not appear to have been properly complied with during processing of the remand; this compels the Board to remand certain issues at this time for compliance. However, the remand instructions with regard to the issue of entitlement to service connection for COPD have been substantially complied with. The directed medical opinion has been obtained and an appropriate readjudication of the issue has been completed with issuance of the April 2010 supplemental statement of the case. (The Board notes, in contrast, that no supplemental statement of the case issued since the Board's August 2009 remand has readjudicated the other issues currently on appeal.) The issues of entitlement to service connection for vision loss and entitlement to a compensable initial rating for service- connected bilateral hearing loss 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 The Veteran's pulmonary disability, diagnosed as COPD, was not manifested during the Veteran's active duty service or for many years thereafter, nor is COPD otherwise related to service, including any alleged exposure to asbestos. CONCLUSION OF LAW COPD was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Duty to Notify After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In letters sent in May 2008 and October 2008, the claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought. Moreover, this letter advised the Veteran of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that these letters were sent to the appellant prior to the most recent RO-level readjudication addressing the issue on appeal, as evidenced by the April 2010 supplemental statement of the case; the notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In March 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded. Id. at 488. In this case, the effectively timely VCAA letter sent in May 2008 provided the notice contemplated by Dingess. The appellant was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that -except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim- the burden of proving harmful error must rest with the party raising the issue; the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records, in service, private, and VA have been obtained. The Board observes that following the Board's August 2009 remand, the claims file now appears to have been reconstructed to include all of the contents from the original claims file and the temporary claims files created during periods in which portions of the file were previously missing. The Veteran has been provided with a VA examination to evaluate the nature and etiology of the COPD on appeal. A VA pulmonary examination report dated in October 2008 is of record along with an associated January 2009 end report; a December 2009 clarifying opinion focused upon the etiology of COPD was also prepared in accordance with the Board's August 2009 remand instructions. The VA examination reports contain sufficient findings and discussion of the pertinent history and etiology of the disability on appeal to provide probative medical evidence adequate to address the claim. The medical opinion is informed by interview and inspection of the Veteran together with review of the claims file. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to this appeal. Under these circumstances, no further action is necessary to assist the claimant with this appeal. Analysis The Veteran is seeking entitlement to service connection for COPD, which he contends is etiologically related to his active duty service. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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. 38 C.F.R. § 3.303(d). It is clear from the record that the Veteran currently suffers from a chronic disability of the lungs. The critical question is whether the Veteran's current COPD is etiologically related to his active duty military service. The Veteran's service treatment records indicate some complaints of chest pain, coughing, and respiratory congestion during the Veteran's active duty service. The Board's review of the service treatment records reveals chest pains and chills necessitating an ambulance in December 1961, chest pains upon breathing in July 1962, chest congestion in September 1962, chest pain while breathing in January 1963, and congestion with coughing in February 1963. However, these episodes were generally attributed to acute colds, rib cartilage injury, or anxiety; clinical findings pertaining to the lungs presented no suggestion of pertinent chronic pathology such as COPD. The Board also notes that the Veteran's service separation examination report dated in January 1966 shows that medical professionals found the Veteran to be clinically normal in all pertinent respects, including with express regard to his lungs and chest. This strongly suggests that a trained medical professional did not believe that the Veteran suffered from any chronic pulmonary disability at that time, and it suggests that any instance of chest or pulmonary symptomatology during service was acute in nature and resolved without chronic disability. The Board finds that contemporaneous service treatment records featuring competent medical examination findings to be highly probative in suggesting that chronic COPD did not manifest during service. In particular, the Board notes that the January 1966 service separation examination report shows no pertinent chronic disability or clinical abnormality related to COPD at the time of the conclusion of the Veteran's active duty service. The VA examination reports/addenda following from the October 2008 VA pulmonary examination show that the Veteran's 'PFTs indicate mild obstructive ventilator defect which would be consistent with early COPD related to this Veteran's history of tobacco use.' The Board's August 2009 remand directed additional development addressing the etiological question in this case. In accordance with the Board's August 2009 remand, a clarifying medical opinion was obtained to address the nature and etiology of the Veteran's COPD; the new medical opinion was prepared in December 2009 by the same medical professional who authored the January 2009 end-report from the Veteran's previous pulmonary evaluation in the development of this appeal. The December 2009 clarifying opinion was prepared with fresh review of the claims file and the benefit of the information obtained from prior inspection of the Veteran's pulmonary health. The December 2009 clarifying opinion explains that pulmonary function tests indicate current mild COPD that is at least as likely as not related to cigarette smoking. This opinion cites the fact that numerous epidemiologic studies indicate that cigarette smoking is overwhelmingly the most important risk factor for COPD. The Board finds this conclusion to be probative and persuasive in evaluating the most likely etiology of the Veteran's COPD, as the author cites established medical principles and is informed of the details of the Veteran's specific case. Significantly, the December 2009 medical opinion points out that the Veteran's own representations indicate that he did not begin smoking cigarettes until after his active duty military service. In this regard, the examiner notes that during the October 2008 evaluation the Veteran stated that he had quit smoking in 1990 after 15 years of smoking. The examiner correctly explains that the Veteran's own statement thus indicates a chronology featuring cigarette smoking that began around the mid 1970's, many years after his separation from active duty service. Therefore, the examiner persuasively concludes that the Veteran's COPD is etiologically linked to cigarette smoking which is shown to have begun a significant time after the Veteran's active duty service. The December 2009 clarifying opinion goes on to further address the question of whether any of the Veteran's in-service symptomatology may have represented manifestations of his current chronic COPD pathology. The examiner persuasively concludes that the in-service symptoms were not manifestations of the current chronic COPD pathology. The opinion explains that the examiner's review of the service treatment records indicates that physical examination findings for each of the Veteran's visits concerning respiratory symptoms were either normal or showed only very slight abnormalities indicating no significant pathology or illness. The Board notes that this statement is consistent with the Board's own review of the information presented in the service treatment records. The December 2009 opinion further cites that the Veteran was suspected of having anxiety problems which may have been a contributing factor to his symptom experiences; the Board has confirmed that this is shown in a December 1961 service treatment record. The December 2009 opinion notes that the pertinent visits were in the 1962-1963 timeframe and did not appear to continue throughout the Veteran's service, which did not end until 1966. The examiner medically concludes that there is thus no indication that the Veteran's in- service symptoms represented a developing or underlying disorder, and they were "less likely as not any manifestation / early indication of developing COPD." The December 2009 clarifying opinion clearly concludes that "[b]ased on available records, tests, and veteran's prior statements, his COPD is at least as likely as not due to his cigarette smoking after he was discharged from the service." The Board finds that this December 2009 opinion is highly probative, with the benefit of all the pertinent information and a thorough and persuasive discussion of the key facts and medical principles. Therefore, the Board finds that the December 2009 medical opinion probatively shows that the Veteran's current chronic COPD pathology did not manifest during service and is not etiologically linked to service; the Veteran's COPD is due to cigarette smoking which did not begin until many years following separation from active duty service. Furthermore, the Board notes that COPD is not a pathology that has been suggested to be associated with asbestos exposure in any competent evidence of record and, moreover, the medical determination that the Veteran's COPD is due to cigarette smoking necessarily indicates that it is not at least as likely as not due to any possible asbestos exposure during service. The Board has considered whether the Veteran may be entitled to service connection for his current lung disability on any basis involving the shown medical etiology involving his history of heavy smoking. The Board observes that 38 U.S.C.A. § 1103(a) precludes compensation for disability due to tobacco use during service. However, the Board interprets 38 U.S.C.A. § 1103(b) as nevertheless allowing compensation for disability otherwise shown to have been incurred during service. In other words, the fact that the COPD is due to tobacco use does not totally preclude compensation if the COPD was otherwise first manifested during active duty service. However, the Veteran was not diagnosed with COPD during service, and the most probative evidence indicates that none of in his in-service episodes of respiratory symptoms were manifestations of a chronic pulmonary disability such as COPD. In light of this, and the facts that the Veteran's own account suggests that he did not start smoking until after military service and that the Veteran was without respiratory problems of any kind at separation, the Board finds that the record demonstrates that the Veteran did not have COPD during service. As the Veteran did not have COPD during service, there can be no basis for entitlement to service connection for COPD that is etiologically tied specifically to his history of smoking, regardless of the extent to which any of his history of smoking cigarettes may have actually occurred during his military service. The Board finds that the service treatment records show no chronic lung disability manifested during service, and the VA examination report shows that no current chronic lung disability is otherwise etiologically linked to service. The Board notes that there is no contemporaneous evidence of any onset of chronic lung disability for many years following service. The earliest timeframe that the Veteran himself has identified for the onset of symptoms was the 1970's (indicated in his October 2008 VA examination report), which would put onset many years after the Veteran's separation from active duty service. A February 2005 private treatment record actually suggests that the Veteran described onset of symptoms beginning in January 2005. In any event, the lengthy period following service prior to the alleged onset of any symptom continuity weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the highly probative evidence discussed above with regard to the issue on appeal. The Board acknowledges the Veteran's own lay contentions with regard to his belief that he suffers from a chronic pulmonary disability due to his military service. As a layperson, the Veteran is not competent to offer an opinion that requires specialized training, such as the clinical etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Board finds that the Veteran is competent to present testimony identifying when he experienced certain symptoms which may be related to the claimed disability on appeal. However, the Veteran is not competent to establish a specialized medical determination such as the specific etiology or diagnosis of a chronic pulmonary disability. In this case, the Veteran advanced this claim originally based upon his belief that he suffers from asbestosis. As explained in his August 2007 Board hearing testimony, the Veteran believed that his pulmonary disability was first diagnosed in 1993 and he made no contention that a chronic pulmonary disability had continuity of symptomatology during military service. The Veteran's contention was that environmental exposures during his military service were responsible for the later onset of his pulmonary disability. Significantly, the Veteran is shown to have told the VA examiner during his October 2008 VA pulmonary examination that he had the original onset of breathing problems in the 1970's. Accepting the Veteran's own account, then, would indicate that onset of pertinent symptomatology began four years following separation at the very least. Thus, the Veteran's account does not describe continuity of symptomatology since service. The Board's August 2009 decision has already addressed the portion of this appeal featuring the Veteran's asbestosis contentions, and at this time only considers those contentions to the extent that they implicate the current issue of entitlement to service connection for the pulmonary disability he is currently diagnosed with. The Veteran's testimony has not indicated continuity of symptoms since service, and highly probative contemporaneous service treatment records show only acute episodes of symptoms during service and a clinically normal respiratory system at separation. The Veteran's competent lay testimony in this case regarding symptom history does not meaningfully contradict the other indications of record which tend to show that the Veteran's chronic pulmonary disability did not manifest until years after active duty service. The Veteran's recollections of his symptom history are competent, but do not establish a basis for a grant of service connection in this case. No lung symptoms were noted at the time of the Veteran's discharge examination. Clinical examination of the lungs was normal. The Board places the greatest probative weight on the contemporaneous medical examination report from the time of separation which indicates an absence of lung symptomatology or diagnosis. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Any current suggestion of continuity of symptomatology would be inconsistent with what is probatively shown at the time of his separation examination in the findings of medical personnel at that time. The Veteran's belief that his pulmonary disability is related to service was not based upon continuity of symptomatology, but rather a belief that he his disability was a result of asbestos exposure that occurred during service. As discussed in the Board's August 2009 decision denying service connection for asbestosis, the Veteran does not have a diagnosis of asbestosis or any current lung disability consistent with the particular features of asbestos-related pathology. There is no evidence of record that suggests that the Veteran's COPD diagnosis is etiologically linked to asbestos exposure, and the probative evidence indicates that the COPD is specifically attributable to a cigarette smoking etiology that is clearly distinct from asbestos exposure and distinct from the Veteran's military service. Even considering the Veteran's lay testimony with regard to the matters it is competent to address, the most probative evidence weighs against the claim of entitlement to service connection in this case. Competent medical evidence is required to establish an etiological nexus between the claimed disability on appeal and military service. In this case, the Board finds that the preponderance of the probative evidence of record weighs against finding any such nexus. Competent medical evidence is required to establish an etiological nexus between military service and a currently diagnosed disability. In this case, the Board finds that there is no medical evidence of record that establishes any such nexus. In this case, the most competent evidence shows that the Veteran's COPD is not caused by nor aggravated by the Veteran's military service. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for COPD. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for COPD is not warranted. To this extent, the appeal is denied. REMAND The Board's August 2009 remand of issues in this appeal discussed that there has been significant confusion with regard to the status of the Veteran's claims-file throughout the adjudication of this appeal. The Veteran's original claims file was lost at some time prior to the Veteran's August 2003 filing of the claims currently on appeal. An incomplete 'rebuilt' claims file was being utilized at the time of the Board's first remand in September 2007, and the Board directed action to attempt re- obtaining the original claims file. During the processing of the Board's first remand, certain RO memoranda (most notably a February 2008 formal memorandum on the matter) indicate that the original claims file was located and obtained, and that file is now available for review. However, the record also reflects (including the February 2008 memorandum) that the 'rebuilt' claims file was lost during this time. This circumstance required the utilization of yet another temporary and 'rebuilt' claims file. The Board observes that there is documentation of significant confusion concerning the recomposition of the claims file, further involving a transfer of jurisdiction between the Appeals Management Center and the local Regional Office. At the time of the Board's August 2009 remand a number of procedurally critical documents were missing from the available claims-file sent to the Board, which revealed that the content of the claims-file was incomplete. The Board directed that appropriate actions be taken to restore the complete contents of the claims file with all pertinent documents available in a single file in a single location for consideration in adequate adjudication. The Board further explicitly instructed that once the claims-file was made complete, "the RO should review the expanded record, to include all evidence together in a newly complete claims-file, and readjudicate the issues on appeal. Unless the full benefits sought by the Veteran are granted, the RO should furnish the Veteran with an appropriate supplemental statement of the case." Current review of the now-available claims-file contents reveals that the temporary file has been combined with the original claims-file, to include multiple important procedural documents. However, the only issue addressed on the April 2010 supplemental statement of the case is entitlement to service connection for COPD, an issue addressed by the Board in the decision above. No other supplemental statement of the case appears to have been issued since the Board's August 2009 remand and the reconstruction of the complete claims-file. The Board observes that the latest volume of the claims-file does contain a statement of the case addressing the issue of entitlement to an increased disability rating for bilateral hearing loss, but this is dated in May 2009 (prior to the Board's remand and prior to reconstruction of the claims-file). The Board notes that the May 2009 statement of the case makes no mention of the most recent VA rating examination pertaining to the Veteran's claim, which was conducted in October 2008; the May 2009 statement of the case features discussion of an older May 2006 VA examination. This further reflects that there has not yet been adequate RO-level adjudication of this issue with the benefit of review of the complete claims-file. Moreover, there has been no readjudication of the issue of entitlement to service connection for vision loss since the Board's August 2009 remand, and there appears to have been no adjudication of that issue with the benefit of review of the entire claims file. The Board is unable to find that there has been substantial compliance with the Board's August 2009 remand instructions. Adjudication of the issues on appeal with the benefit of review of the complete and newly reconstructed claims file is essential in this case in which there has been such substantial difficulty properly assembling the contents of the claims file throughout the appeal. There has been no apparent RO-level adjudication of these issues with the complete intact claims file available for review. The appellate scheme set forth in 38 U.S.C.A. § 7104(a) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his or her claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). Further, when evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). There appears to be no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304(c). The Board believes that appellate review cannot survive judicial scrutiny without completion of the procedural requirements of issuing a new complete supplemental statement of the case addressing the issues remaining on appeal following the Board's August 2009 remand and reconstruction of the complete claims file. A new remand is necessary to ensure compliance with the development requested by the Board's August 2009 remand which expressly directed that a new readjudication and issuance of supplemental statement of the case was necessary; the Board is under a duty to ensure compliance with the terms of its prior remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, this case must be remanded again to ensure appropriate consideration and completion of the procedural requirements. Accordingly, the case is REMANDED for the following action: The RO/AMC should review the expanded record, to include all evidence together in the newly complete reconstructed claims-file, and readjudicate the issues of entitlement to service connection for vision loss and entitlement to a compensable initial rating for service-connected bilateral hearing loss. Unless the full benefits sought by the Veteran are granted, the RO should furnish the Veteran with an appropriate supplemental statement of the case. The case should be returned to the Board after the Veteran is afforded an opportunity to respond. 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs