Citation Nr: 1032071 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 07-15 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for bilateral pes planus. 2. Whether new and material evidence has been received to reopen a claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left arm and hand disability to include left 4th and 5th digits. 3. Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a left arm and hand disability. 4. Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a right arm and hand disability and neck pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran had active military service from December 1948 to December 1951. This appeal to the Board of Veterans' Appeals (Board) is from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied the Veteran's claims for a disability rating higher than 10 percent for bilateral pes planus, for service connection for a left arm and hand disability because new and material evidence had not been submitted sufficient to reopen a previously denied claim, and for service connection for a right arm and hand disability with neck pain. In March and May 2007, the Veteran indicated on his appeal form that he desired a Board hearing at the RO. And in July 2007, he submitted a statement requesting a Board hearing in Washington, DC. However, a report of contact form, dated in August 2007, indicates that the Veteran stated that he desired to withdraw his request for a hearing. 38 C.F.R. § 20.702(e) (2009). Accordingly, the request for hearing is withdrawn and the Board will proceed without further delay. In July 2010, because of his age, the Board advanced the Veteran's claim on the docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims for compensation pursuant to 38 U.S.C.A. § 1151 are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's bilateral pes planus is no more than moderate. 2. Although the Veteran did not appeal the January 1995 rating decision denying his claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left arm and hand disability or the February 2002 rating decision continuing to deny that claim, additional evidence submitted since that February 2002 rating decision relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating higher than 10 percent for bilateral pes planus. 38 U.S.C.A. § 1155 (West Supp. 2005); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5276 (2009). 2. The RO's January 1995 and February 2002 rating decisions denying the Veteran's claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left arm and hand disability are final and binding based on the evidence then of record because he did not appeal either decision; however, he has since submitted new and material evidence to reopen this claim. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Review of the claims file reveals compliance with the notice and duty to assist requirements. 38 U.S.C.A. § 5100, et seq. (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Letters dated in July 2005 and June 2006 advised the Veteran of the evidence needed to substantiate his claims and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The July 2005 letter also provided notice in compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006) for the Veteran's petition to reopen his claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left arm and hand disability. In Kent, the Court held that VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information needed to establish entitlement to the underlying benefit being sought. To satisfy this requirement, VA adjudicators are required to look at the bases of the denial in the prior final decision and provide the claimant a notice letter describing what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The RO issued that July 2005 notice letter prior to initially adjudicating the claims in April 2006, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The June 2006 letter also apprised the Veteran of the downstream disability rating and effective date elements of his claims. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). And since providing that additional notice, VA readjudicated his claims in an April 2007 statement of the case. Where notice provided prior to the initial adjudication of the claims was inadequate or incomplete, this timing error can be effectively cured by providing any necessary notice followed by a readjudication of the claim, such as in a statement of the case or supplemental statement of the case, such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claims. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. All VA notice errors are not presumptively prejudicial, the error must be examined in the context of the facts of a particular case. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Prejudicial deficiencies in the timing or content of notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant, established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate the claim; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Additionally, consideration also should be given to whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim served to render any pre-adjudicatory notice error non-prejudicial. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Vazquez- Flores, 22 Vet. App. 37 (2008); Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board had erred by relying on various post- decisional documents for concluding adequate notice had been provided, but the evidence showed the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). And as for the duty to assist, the RO obtained the Veteran's service medical records, service personnel records, private medical records, and VA treatment records, including the reports of his VA examinations assessing the severity of his bilateral pes planus. His most recent VA examination was in October 2005 and the report of the VA examinations and other medical records, provide the information needed to determine whether the current ratings are appropriate. 38 C.F.R. §§ 3.327, 4.2 (2009); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, as there is no indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002). Entitlement to a Disability Rating Higher than 10 percent for Bilateral Pes Planus Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2009). Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2009). If two ratings are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When reasonable doubt arises as to the degree of disability, that reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2009). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, and the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's bilateral pes planus is rated under Diagnostic Code 5276, which provides for a 10 percent rating for bilateral pes planus that is moderate, characterized by weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. The next higher rating of 30 percent is warranted for bilateral pes planus that is severe, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum rating of 50 percent is warranted where bilateral pes planus is pronounced, characterized by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a (2009). VA's Rating Schedule does not define the words slight, moderate, or severe. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for equitable and just decisions. 38 C.F.R. § 4.6 (2009). The Board has also considered the applicability of other diagnostic codes pertaining to the foot: weak foot (5277), pes cavus (5278), Morton's disease (5279), hallux valgus (5280), hallux rigidus (5281), hammer toe (5282), malunion or nonunion of the tarsal or metatarsal bones (5283), or other foot injury (5284). But the facts and circumstances of this case do not permit the application of the other diagnostic codes because the Veteran does not have those disabilities, or if they may be applied, they are of no benefit to the Veteran. Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). An October 2005 VA examination shows that on physical examination of the feet, there was no abnormal motion, crepitus, edema, effusion, fatigability, instability, mass, muscle atrophy, painful motion, redness, spasm, tenderness, heat, or incoordination. There was moderate weakness, and severe tinea pedis and onchomycosis, but no callus formation, ulceration or other skin breakdown, coolness, or corns. Circulation was normal. The Veteran's gait was not normal as he did not ambulate. There was no evidence of abnormal weight bearing because the Veteran would not stand, but there was an arch present on non-weight bearing for each foot. The Veteran had bilateral flat feet, but there was no forefoot malalignment, pronation, pain on manipulation, hammer toes, hallux valgus, or pes cavus. X-rays showed that with respect to the Veteran's right foot, there was minimal hallux valgus and the remaining osseous and articular structures and the soft tissues were unremarkable. There was no evidence of arthritis, fracture, or dislocation. With respect to the left foot x-rays, there was a small exostosis of the distal phalanx of the great toe and probable early osteoarthritis of the proximal interphalangeal joint of the 4th toe. The focal area of benign cortical thickening of the distal portion of the proximal phalanx of the 2nd toe indicated old trauma. There was a very small ossific density in the vicinity of the proximal interphalangeal joint of the 3rd toe which could be related to old trauma. No recent fracture or dislocation was evident and that there was a small plantar calcaneal spur. In summary, the report provides that although the Veteran is unable to stand and is not ambulatory, his bilateral pes planus is very mild. The report further provides that although the Veteran is dependent in most activities of daily living, that is not due to his pes planus, but rather, was due to his conversion reaction and degenerative joint disease. Applying the Diagnostic Code 5276 criteria to the facts of this case, the Board finds the Veteran's pes planus is no more than moderate. Although the Veteran cites his inability to stand and walk as evidence that he deserves a higher rating, the competent medical evidence of record does not attribute that to his bilateral pes planus, but to other disabilities. Therefore, the evidence of record does not support a disability rating higher than 10 percent for the pes planus. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. In applying those regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. The determinations are, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80 (1997); 38 C.F.R. § 4.59. However, because the diagnostic code pertaining to pes planus does not contain criteria based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment, are not applicable. Furthermore, the competent medical evidence indicates the Veteran's bilateral pes planus has not warranted a disability rating higher than 10 percent at any time during the applicable time period because more than moderate pes planus has not been shown. Consequently, there is no basis to assign any higher rating for any period under consideration on this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). And finally, the Board has considered whether the record raises the matter of extraschedular ratings. 38 C.F.R. § 3.321(b)(1) (2009). In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that 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. 38 C.F.R § 3.321(b)(1) (2009). In this case, the Board finds that the Schedule is not inadequate. The Schedule provides for higher ratings for the Veteran's pes planus disability, but findings supporting a higher rating have not been documented. In addition, it has not been shown that the service-connected pes planus disability has required frequent periods of hospitalization or has produced marked interference with the Veteran's employment. The vast majority, if not all, of the evaluation and treatment he has received for the bilateral pes planus has been on an outpatient basis, not as an inpatient. Therefore, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted. Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Whether there is New and Material Evidence to Reopen the Claim for Compensation Pursuant to 38 U.S.C.A. § 1151 for a Left Arm and Hand Disability The RO first considered and denied the Veteran's claim for § 1151 compensation for a left arm and hand disability in a January 1995 rating decision. The RO denied the claim because there was insufficient evidence to identify the VA treatment that allegedly harmed the Veteran's left arm and hand. the Veteran must show that the VA treatment in question resulted in additional disability and, further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable; 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2009); VAOGCPREC 40-97 (1997), 63 Fed. Reg. 31263 (1998). The RO reopened and adjudicated this claim in February 2002. The RO denied the Veteran's claim because there was no evidence he received contrast material in conjunction with the CT scan procedure he alleges caused injury to his left arm and hand, nor was there competent medical evidence of a current left arm and hand disability. In June 2002, the Veteran submitted a notice of disagreement with the RO's decision and in January 2003, the RO provided him a statement of the case concerning his claim. In July 2004, the RO received a statement from the Veteran reiterating his disagreement with the RO's decision. However, his time period for filing a substantive appeal had lapsed and the February 2002 decision had become final and binding on him based on the evidence then of record and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2009). Since the RO has previously considered and denied this claim, and the Veteran did not timely appeal the decision, the first inquiry is whether new and material evidence has been submitted during the many years since to reopen this claim. 38 C.F.R. § 3.156 (2009). Regardless of whether the RO determined there was new and material evidence, the Board make this threshold preliminary determination, before proceeding further, because it affects the Board's jurisdiction to adjudicate the claim on its underlying merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167 (1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); McGinnis v. Brown, 4 Vet. App. 239 (1993); VAOPGCPREC 05-92 (1992), 57 Fed. Reg. 49744 (1992). If the Board finds that new and material evidence has not been submitted, then its analysis must end and further analysis is neither required nor permitted. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If, however, there is new and material evidence, then the Board must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decisionmakers; and material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence already of record at the time of the last prior final denial of the claim sought to be opened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, VA is not required to consider the patently incredible to be credible. Duran v. Brown, 7 Vet. App. 216 (1994). The RO's February 2002 denial of the Veteran's claim is the most recent final and binding decision on his claim, VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). Based on the grounds stated for the denial of the claim in the RO's February 2002 rating decision, new and material evidence would consist of competent evidence suggesting the Veteran received contrast media during the CT scan at issue or indicating he currently has a left arm and hand disability or a disability caused by VA treatment or services. The additional evidence submitted since that February 2002 RO rating decision includes a June 2002 VA treatment note providing a diagnosis of bilateral ulnar neuropathy. That additional evidence is both new and material because it was not previously submitted to decisionmakers and, therefore, not previously considered, and because it relates to an unestablished fact necessary to substantiate the claim, specifically, by providing a current diagnosis of a left arm and hand disability. Therefore, that new evidence raises a reasonable possibility of substantiating his claim for compensation pursuant to 38 U.S.C.A. § 1151 and therefore the evidence is also material to the claim. New and material evidence having been submitted, the claim is reopened. To that extent only, the claim is allowed. ORDER The claim for a disability rating higher than 10 percent for bilateral pes planus is denied. The claim for compensation benefits pursuant to 38 U.S.C. § 1151 for a left arm and hand disability is reopened. To that extent only, the claim is allowed. REMAND When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C.A. § 1151(West 2002); 38 C.F.R. § 3.358(a) (2009). The Veteran must show that the VA treatment in question resulted in additional disability and, further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2009); VAOGCPREC 40-97 (1997), 63 Fed. Reg. 31263 (1998). The Veteran seeks compensation under the provisions of 38 U.S.C.A. § 1151 for a left arm and hand disability and a right arm and hand disability with neck pain. Those disabilities are claims to be due to a CT scan of his head provided at the VA Medical Center (VAMC) in Mountain Home, Tennessee in November 1993. Specifically, he asserts that he has nerve damage as a consequence of the contrast media used in that procedure. Essentially, he alleges that he now suffers additional disability because of VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in performing this procedure which was not reasonably foreseeable. The Veteran's VA treatment records show that on November 23, 1993, he was provided a CT scan of his head at the Mountain Home VAMC. The first matter for consideration is whether the Veteran has additional disability for the purposes of VA compensation by comparing his physical condition immediately prior to this procedure to his condition after this procedure. 38 C.F.R. § 3.361(b) (2009). The Veteran's VA treatment records show that on November 11, 1993, less than two weeks prior to the procedure at issue, he reported arm and hand numbness and neck symptoms. However, he asserts that his current upper body symptoms did not begin until after his November 23, 1993 CT scan. The Veteran, as a layman, is competent to provide evidence of his observable symptoms, such as having bilateral arm and hand pain, numbness, and tingling with neck pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to provide an opinion on matters requiring medical knowledge and training, such as relating his current bilateral arm symptoms to the November 1993 procedure at issue. Routen v. Brown, 10 Vet. App. 183 (1997); Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). So while there is evidence of record suggesting the Veteran had bilateral hand and arm and neck symptoms prior to the November 1993 CT scan at issue, the crux of his testimony appears to be that following the procedure at issue, he began to experience pain, which constitutes additional or greater symptoms. The Veteran's VA treatment records show that in June 1994 and July 1994 he received treatment for left arm and hand pain and neck pain. Thus, there is competent evidence suggesting the Veteran may have additional disability since the November 1993 procedure at issue. Furthermore, the Veteran's VA treatment records show that he has since been diagnosed with bilateral ulnar neuropathy. However, there is no competent medical evidence of record regarding the purported relationship to these asserted additional disabilities and the November 1993 VA CT scan. Furthermore, even if the record were to establish the Veteran now has additional disability as a result of the November 1993 procedure at issue, the next issue for consideration would be whether these additional disabilities were reasonably foreseeable consequences of this procedure and whether the VA treatment in question did not meet acceptable standards such that it involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, and whether he did not provide his informed consent to any particular aspect of his care. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361(c)(1) (2009); VAOPGCPREC 40-97 (1997), 63 Fed. Reg. 31263 (1998). While there is a signed form indicating the Veteran provided his consent to the procedure and there is evidence to the contrary, there is no competent medical evidence of record with respect to whether the Veteran's asserted additional disabilities are reasonably foreseeable consequences of this procedure and whether the VA treatment in question did not meet acceptable standards. While there is competent evidence that the Veteran may have additional disabilities following the November 1993 procedure at issue, he has not been afforded a VA examination and opinion addressing the relevant requirements for compensation under 38 U.S.C.A. § 1151. Therefore, remand is required to cure the evidentiary deficiency. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). Furthermore, in the April 2006 rating decision at issue, the RO denied all of the Veteran's claims at issue, including his claim for § 1151 compensation for a right arm and hand disability with neck pain. In response to that decision, the Veteran submitted a notice of disagreement indicating he was in disagreement with the RO's decision and referenced all of his claims denied in that decision by including a copy of his statement filing his claims. However, in the April 2007 statement of the case, the RO failed to address that claim. The RO has not since issued any statement of the case addressing that claim. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested. 1. Schedule the Veteran for a VA examination to assess the nature of his asserted bilateral arm and hand disabilities and neck pain and whether they were caused by the November 1993 CT scan. The examiner should adequately summarize the relevant history and clinical findings and provide a rationale for all opinions expressed. The examiner should review the claims file and the examination report should note that review. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each claimed disability, bilateral arm disability, bilateral hand disability, and neck disability, is the result of the November 1993 CT scan or shows any additional disability as the result of the November 1993 CT scan. Should the examiner determine that any diagnosed disability is a result of that procedure, the examiner should also address whether any disability is due to: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in performing the CT scan; or (2) an event not reasonably foreseeable in the course of such treatment. 2. Then, readjudicate the claims for compensation under 38 U.S.C.A. § 1151. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs