Citation Nr: 1035667 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 08-14 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for skin fungus (also claimed as a skin condition). 2. Entitlement to service connection for a claimed "toma" on the left shoulder. 3. Entitlement to service connection for a myocardial infarction, status post coronary artery bypass graft surgery with mitral valve insufficiency (also claimed as heart problems). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse at a June 2009 Decision Review Officer (DRO) hearing. The Veteran at a June 2010 Video Conference hearing. ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1943 to December 1945. During that time, he served in Europe where he engaged the enemy in combat during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In June 2009, the Veteran and his spouse testified at a hearing before a DRO at the Hartford RO. The Veteran also testified before the undersigned Veterans Law Judge at a video conference hearing held from the Hartford RO in June 2010. The Veteran's appeal also initially included the issues of service connection for bilateral hearing loss, infected lip as residual of a shrapnel wound to the upper lip (beneath the nose), an ear condition, and a dental condition. In June 2009, the Veteran withdrew his ear condition and dental condition claims. In an April 2010 rating decision, the RO granted the Veteran's claims of service connection for bilateral hearing loss and for a residual scar on the upper lip. Accordingly, those issues are not presently on appeal before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a myocardial infarction, status post coronary artery bypass graft surgery with mitral valve insufficiency (also claimed as heart problems) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An April 1949 rating decision issued by the RO denied the Veteran's claim of service connection for skin fungus (also claimed as a skin condition); notice of that decision was mailed to the Veteran on May 9, 1949; and the Veteran did not subsequently file an appeal of that rating decision. 2. The Veteran filed his current request to reopen his claim of service connection for skin fungus (also claimed as a skin condition) on September 29, 2006. 3. The evidence associated with the claims file since the RO's April 1949 rating decision, when considered with previous evidence of record, bears directly and substantially upon the issues of whether the Veteran incurred a skin disorder during his active duty service and whether the Veteran's current disability relates to the in-service skin disorder. 4. Resolving reasonable doubt in the Veteran's favor, the evidence shows that the Veteran's skin disorder was incurred during service and has been chronic since that time. 5. The Veteran's left shoulder "toma" has not resulted in a present disability. CONCLUSIONS OF LAW 1. The additional evidence associated with the claims file since the RO's April 1949 rating decision that denied service connection for skin fungus is new and material, and service connection for skin fungus (also claimed as a skin condition) is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2001); 38 C.F.R. § 3.156(a) (2009). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for skin fungus (also claimed as a skin condition) have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). 3. The criteria for service connection for a claimed "toma" on the left shoulder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Applicable Laws and Regulations for Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including cardiovascular disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. II. Analysis A. New and Material Evidence to Reopen Service Connection for Skin Fungus (also claimed as a Skin Condition) Generally, a claim which has been denied in a final rating or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104, 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Service connection for the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Consideration must be given to the question of whether new and material evidence has been received because such a determination is a jurisdictional prerequisite to the Board's de novo review and adjudication of the underlying claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). If it is determined that no such evidence has been offered, that is where the Board's analysis must end, and what the RO may have determined in that regard is irrelevant. Id. In such cases, further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the Veteran's claim was received after August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." In a February 1949 decision letter, the RO denied the Veteran's claim for service connection for skin fungus on the basis that the evidence of record at that time neither showed a current disability nor incurrence of a skin disability during service. That decision was reaffirmed in an April 1949 rating decision that was not appealed by the Veteran. Accordingly, the RO's April 1949 rating decision became final under 38 U.S.C.A. § 7104. Relevant evidence in the claims file consisted at that time of limited service treatment records, a March 1949 private treatment record showing a diagnosis of allergic dermatitis of the hands, and VA examination reports from December 1948 and March 1949. The evidence incorporated into the claims file since the April 1949 rating decision includes various private treatment records encompassing treatment from 1996 to 2007, VA treatment records from 1998 to 2007, and various lay statements submitted in May and June of 2006. As noted previously, the Veteran and his spouse testified at a DRO hearing in June 2009. Additional testimony was provided by the Veteran at a June 2010 Video Conference hearing. Transcripts from both proceedings have also been incorporated into the claims file. Private treatment records from the Veteran's dermatologist, Dr. R., reflect treatment from 2003 to 2006 for multiple neoplasms of the trunk and arms. A May 2006 statement from the Veteran's spouse relates that the Veteran was treated by multiple doctors for a rash on his skin which the doctors attributed to extreme nervousness brought about by the Veteran's wartime service. The June 2009 DRO hearing transcript reflects testimony that the Veteran experienced rashes on his forearms and hands six months after his separation from service. He further testified that he continues to receive ongoing treatment for his skin condition, and that the condition has spread to other parts of his body. At his June 2010 Video Conference hearing, he further testified that he experienced blisters on his fingers in the first year following his discharge from service. The Veteran specified that his skin condition has spread to his face, back, arms, and hands and that he continues to experience outbreaks. In view of the Veteran's hearing testimony and the additional post-service treatment records, the Board finds that the evidence associated with the claims file since the final April 1949 rating decision raises the possibility that the Veteran did incur a skin disorder during service and that his current disorder may be related to service. Thus, the newly submitted evidence relates directly and substantially to the unestablished issue of whether the Veteran's current skin disorder is related to his active duty service. For these reasons, the Board has determined that new and material evidence has been received and that the Veteran's claim for service connection for skin fungus (also claimed as a skin condition) should be reopened. This claim will next be addressed by the Board on a de novo basis. B. Service Connection for Skin Fungus (Also Claimed as a Skin Disorder) The claims file contains limited service treatment records which consist of an induction examination report, five pages of dental records, separation examination, and a one page sick report from January 1949. These records do not reflect in-service complaints of or treatment for any skin disorder. A December 1945 separation examination report shows that an examination of the skin was normal. A post-service private treatment record from March 1949 shows that the Veteran reported skin trouble manifested by multiple small blisters on his fingers. According to the Veteran these blisters broke and became encrusted, and his skin symptoms began to spread. An examination of the Veteran performed at that time revealed multiple encrusted and excoriated lesions on both upper extremities. Many papular lesions were also observed on the Veteran's trunk, particularly on his back. The Veteran was diagnosed with allergic and neurogenic dermatitis. VA examination reports from December 1948 and March 1949 note complaints by the Veteran that the skin on both hands and feet had "broken out." At his March 1949 examination, the Veteran reported that he was treated for this condition in 1944, while attached to the 303rd Infantry, and in 1945 while attached to the 413th Infantry. As discussed above, these records are not contained in the service treatment records. Treatment records from the Veteran's private dermatologist, Dr. R., show that the Veteran was treated from 2003 to 2006 for multiple neoplasms on the trunk and arms. An October 2005 treatment record reveals an initial diagnosis of dermatitis and eczema of the back and arms. A later October 2006 record indicates that the diagnosis was changed to serborrheic keratosis. A May 2006 statement from the Veteran's spouse relates that while on leave following service in Europe, the Veteran was treated and hospitalized for one month for a skin rash. According to the Veteran's spouse, treating physicians advised the Veteran that his skin disorder was the result of extreme nervousness brought about by his wartime experiences in Europe. These treatment records are not available. At his June 2009 DRO hearing, the Veteran testified that he experienced rashes on his forearms and hands only six months after his separation from service. Consistent with the March 1949 private treatment record in the claims file, the Veteran testified at his June 2010 Video Conference hearing that he experienced blisters on his fingers shortly after his discharge from service. According to the Veteran, his skin disorder subsequently spread to his face, back, and arms. He further asserted that he continues to experience outbreaks of his skin disorder. Based upon the evidence in the claims file, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's present skin disability is etiologically related to his active duty service. Hence, the Board finds that the Veteran is entitled to service connection for a skin disorder. The medical evidence in the claims file shows that the Veteran experienced a skin disorder manifested by blistering of his hands and feet at least as early as December 1948, only three years after his discharge from service. Although the Veteran's contentions, as expressed at his VA examinations in 1948 and 1949, are not supported by corroborating evidence in the service treatment records, the Board notes that much of the Veteran's service treatment records appear to have been lost. His contentions as to continuity of his skin disorder are supported by his spouse's May 2006 statement. Moreover, the Board observes that the private treatment records of Dr. R. from 2003 to 2006 reflect the same symptoms which were evident at the Veteran's May 1949 private treatment. Overall, there is no evidence contradicting the Veteran's assertions as to continuity of his skin symptoms. The Board finds that the criteria for service connection skin fungus (also claimed as a skin condition) have been met. Service connection is accordingly warranted for that disorder, and that claim is granted in full. C. Service Connection for "Toma" of the Left Shoulder In his September 2006 claim, the Veteran specified that he was seeking service connection for a "toma" on the left shoulder. At his June 2009 DRO hearing, the Veteran described the "toma" as a benign lemon-sized knot that was visible on his left shoulder. According to the Veteran, the knot was excised and biopsied during a private outpatient procedure performed at Backus Hospital in 1950. In his DRO hearing testimony, he asserted that this condition was caused by constant rubbing of the shoulder strap of his rucksack during service. He admitted that the "toma" was not present during his active duty service, but stated that it was first noticeable shortly after his discharge. The Veteran stated that Dr. P. "did a good job" with treatment in 1950 and that the described condition has not recurred since that time. Similar testimony was given by the Veteran with regard to this condition at his June 2010 Video Conference hearing. At that time, he described that his left shoulder "toma" was presently manifested only by a four inch scar on his left shoulder which remained from treatment in 1950. The Veteran denied any pain associated with the scar. Consistent with the Veteran's DRO hearing testimony, service treatment records do not document any complaints or diagnosis of a knot or similar condition in the left shoulder. The Board observes that treatment records from the Veteran's 1950 outpatient treatment are not of record. In this regard, the Veteran testified at his DRO hearing that these records were not available. Post-service private and VA evaluation and treatment records through 2009 that are in the claims file document periodic treatment for a skin disorder affecting the hands, arms, chest, and back. That disorder and treatment for it are addressed in the section discussing the Veteran's service connection for skin fungus. Those records, however, do not reference the presence of a "toma" or knot in the left shoulder, nor is there any reference to any complaints or treatment for any ongoing disabilities in the left shoulder. The evidence in this case does not show a current disability that is attributable to the Veteran's left shoulder "toma." In the absence of such evidence, the Veteran is not entitled to service connection for the claimed "toma" or for the residual scar on his left shoulder. Accordingly, this claim is denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). III. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insofar as the Veteran's request to reopen his claim of service connection for skin fungus, the Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, 38 C.F.R. § 3.159, and Kent v. Nicholson, 20 Vet. App. 1 (2006). Given the favorable action with regard to that issue taken in this decision, however, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. With respect to the Veteran's claim of service connection for a claimed "toma" on the left shoulder, the Veteran was notified of the information and evidence needed to substantiate and complete that claim in a January 2007 notice letter. In that letter, the Veteran was also notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate a claim. The Veteran's identified VA and private treatment records have been obtained. As discussed previously, the service treatment records associated with the claims file do not appear to be complete. In that regard, the Board also notes that no documented follow-up efforts to obtain the Veteran's complete service treatment records have been made. Nonetheless, where the Veteran has expressly denied the onset or treatment of his left shoulder "toma" during service, the Veteran's complete service treatment records are not relevant to the Veteran's claim insofar as that issue. The Board notes that the Veteran has not been provided a VA examination to assess the nature and etiology of his claimed left shoulder "toma." Under 38 U.S.C.A. § 5103A(d), a VA medical examination is to be afforded where such an examination "is necessary to make a decision on the claim." A VA examination is "necessary" where the evidence, after taking into consideration all information and lay or medical evidence: (1) contains competent evidence that the veteran has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the veteran's active military, naval, or air service; and (3) does not contain sufficient medical evidence for VA to make a decision on the claim. In the absence of any evidence demonstrating a current disability due to the left shoulder "toma," a VA examination to assess the nature and etiology of that disorder is not "necessary." Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER New and material evidence has been received, and the Veteran's claim of service connection for skin fungus (also claimed as a skin condition) is reopened. Service connection or skin fungus (also claimed as a skin condition) is granted. Service connection for a claimed "toma" on the left shoulder is denied. REMAND At his June 2009 DRO hearing, the Veteran and his spouse testified that he was diagnosed with a heart murmur prior to service. An enlistment examination in the claims file, however, does not note any findings related to the cardiovascular system. He further testified that he was diagnosed and treated for an unspecified heart condition by a private cardiologist in 1946, within a year of his discharge from service. According to the Veteran, he was subsequently monitored for his heart condition, and in 1987 suffered a myocardial infarction. VA and private treatment records in the claims file reflect cardiovascular treatment from 1999 through 2007. A November 2002 private treatment record from Dr. J.M.H. reflects that the Veteran was being seen at that time in follow-up after a "recent hospitalization." Treatment records corresponding to a hospitalization in 2002 have not been obtained. The Board notes that the Veteran has not expressly denied receiving in-service evaluation or treatment for a heart murmur or other cardiovascular condition. Service treatment records in the claims file consist only of an induction examination report, five pages of dental records, separation examination, and a one page sick report from January 1949. Further, there is no documentation in the claims file that any follow-up efforts to obtain the Veteran's complete service treatment records have been made, nor has there been a formal and documented finding of unavailability of the Veteran's full service treatment records. Under 38 C.F.R. § 3.159(c)(2), VA is obliged to obtain relevant records from other Federal departments or agencies. VA is required to make as many requests as are necessary to obtain such records, and may end such efforts only if it concludes that the records sought do not exist or that further efforts to obtain such records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or that the custodian does not have them. Given the testimony of the Veteran and his spouse, that he was diagnosed with a heart murmur prior to service, the Veteran's complete service treatment records are relevant in that they may pertain to in-service evaluation or treatment received by the veteran for a heart murmur. Accordingly, efforts should be made to obtain his complete service treatment records, as well as any VA treatment records which relate to treatment for the Veteran's heart condition since 2007. Additionally, 38 C.F.R. § 3.159(c)(1) requires VA to make reasonable efforts to obtain relevant records which are not in the custody of a Federal department or agency. Such efforts generally consist of an initial request to obtain the records, and if such records are not received, at least one follow-up request. A follow-up request is not necessary where VA receives a response to its initial request indicating that the records sought do not exist or that a follow-up attempt would be futile. If VA receives a response showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request, and if the records are not received, at least one follow-up request to the new source or an additional request to the original source. In this case, such efforts should be made to obtain any private treatment records which relate to hospitalization in 2002 and to any private cardiology treatment since 2007. VA's duty to assist is not a "one-way street"; a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Veteran should assist VA by providing information and other assistance, as needed, to permit VA to obtain records that would substantiate the Veteran's claim. Further, through his representative, the Veteran asserted, at his June 2009 DRO hearing, his belief that his heart disorder has been caused or aggravated by his service-connected posttraumatic stress disorder (PTSD). Lay persons may be competent to establish medical etiology between a present disability and an injury or illness incurred during active duty service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). To date, the Veteran has not undergone a VA examination to determine the etiology of his claimed cardiovascular disorder. Under 38 U.S.C.A. § 5103A(d), a VA medical examination is to be afforded where such an examination "is necessary to make a decision on the claim." A VA examination is "necessary" where the evidence, taking into consideration all information and lay or medical evidence: (1) contains competent evidence that the veteran has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the veteran's active military, naval, or air service; and (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Given the Veteran's competent testimony that his present heart condition may be related to his service-connected PTSD, the Veteran should be scheduled a VA examination with an appropriate examiner to determine the etiology of his heart condition. Accordingly, the case is REMANDED for the following action: (Please note, 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. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding the claims on appeal. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claims and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should also be notified that efforts are being made to obtain the Veteran's complete treatment records. The Veteran should also be provided a VA 21-4142 release and be requested to identify the name(s) and address(es) of any VA or private treatment providers at which he was hospitalized in 2002 and/or who have rendered medical treatment for his heart condition since 2007. 2. Efforts should be made, with all appropriate departments or agencies, to obtain the Veteran's complete service treatment records and any VA treatment records identified by the Veteran in the VA 21-4142 release. Such efforts should continue unless and until it is documented in the claims folder that the records sought do not exist or that further efforts to obtain such records would be futile. All records obtained pursuant to this request must be included in the Veteran's claims file. 3. Efforts should be made to obtain all private treatment records identified by the Veteran in the VA 21-4142 release. Such efforts should continue unless and until it is documented in the claims folder that the records sought do not exist or that further efforts to obtain such records would be futile. All records obtained pursuant to this request must be included in the Veteran's claims file. 4. Then, the Veteran should be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of the claimed myocardial infarction, status post coronary artery bypass graft surgery with mitral valve insufficiency (also claimed as heart problems). The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis corresponding to the claimed heart disorder. The examiner is also requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed heart disorder is etiologically related to the Veteran's period of active service, and/or was first incurred within one year from his discharge from active duty service in December 1945, and/or is caused or aggravated by the Veteran's service-connected PTSD. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 5. After completion of the above development, the Veteran's claim of entitlement to service connection for a myocardial infarction, status post coronary artery bypass graft surgery with mitral valve insufficiency (also claimed as heart problems) should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given 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). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs