Citation Nr: 1105055 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 09-36 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for a left shoulder disability, to include a frozen (minor) shoulder, with chronic dislocations, post-operative. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1945 to September 1946 and from March 1951 to January 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision from the Department of Veterans Affairs (VA), Regional Office (RO), in St. Petersburg, Florida. This matter was previously before the Board in December 2009 and October 2010, at which time it was remanded for additional development. It is now returned to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU 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. FINDING OF FACT The Veteran's left shoulder disability is manifested by severe pain, stiffness, weakness, and limited motion, which he treats with over-the-counter medication. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for left shoulder disability, to include a frozen (minor) shoulder, with chronic dislocations, post-operative, have not been met. 38 U.S.C.A. § 1155, 5103, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5200, 5202 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (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. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court (Supreme Court) held that the blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in March 2008, April 2010, May 2010, and November 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. The foregoing correspondence also provided the requisite notice with regard to the Dingess requirements. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2010). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare- ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). The Veteran seeks a disability rating greater than 40 percent for his service-connected left shoulder disability. His left shoulder disability is currently rated as 40 percent disabling under Diagnostic Code 5200 which provides the rating criteria for scapulohumeral articulation. Under this diagnostic code provision, the maximum 40 percent rating is assigned where there is unfavorable ankylosis of the scapulohumeral articulation of the minor shoulder and arm, with abduction limited to 25 degrees from the side. The only applicable diagnostic code provision which provides a disability rating greater than 40 percent for the minor shoulder is Diagnostic Code 5202 which provides the rating criteria for impairment of the humerus. The next higher disability rating of 50 percent is assigned when there is evidence of nonunion (false flail joint) of the humerus. The maximum 70 percent disability rating is warranted where there is medical evidence of a loss of the head of the humerus resulting in a flail shoulder. A VA examination report dated in February 2007 shows that the Veteran reported having continued pain and limitation of motion. He was said to have been diagnosed with adhesive capsulitis in 2005, and that surgery had been recommended but declined because of his old age. He was treated with over-the-counter pain medication and exercises. It was also noted that in August 2002 he suffered a stroke that resulted in some weakness of the left upper extremity. Parenthetically, at this juncture the Board notes that a VA examination report dated in April 2002, prior to the first stroke of the Veteran, shows that the left shoulder was manifested by pain and weakness. Range of motion of the left shoulder was 90 degrees of extension, 90 degrees of internal rotation, and 60 degrees of external rotation. The February 2007 VA examiner continued that in October 2006 he suffered another stroke, at which time the left upper extremity was paralyzed. With time, slight improvement in the movements of the left upper extremity was indicated. At present he reported pain in the shoulder that would radiate all the way down to include the whole left upper extremity. He also described that the pain was constant and would flare up on any movement of the shoulder. He has tingling and numbness in the fingers. It was indicated that the left upper extremity was useless, as he could not hold anything with his hand because of the spasticity in his hand and fingers. He was given a wrist splint but he has not used it. He has lost most of his motions in his shoulder, elbow, and hand after the second stroke. He would take over-the-counter pain medication for the pain. He added that most of the time the pain was at 10 on a scale of 10 in intensity. He did not use any assistive devices and received assistance with activities of daily living from his wife. The Veteran was said to be retired. Physical examination revealed that the Veteran was holding his left upper extremity against his chest with the elbow slightly flexed and the wrist and fingers in a flexed position. This was typical of the post-stroke spastic hemiplegia of the upper extremity. Examination of the left shoulder showed no local tenderness or swelling or deformity. Range of motion was severely restricted. Forward flexion has 25 degrees of active motion and 40 degrees of passive motion with pain. Abduction had 25 degrees of active motion and 40 degrees of passive motion with pain. External rotation had 20 degrees of active and 30 degrees of passive motion with pain. Internal rotation had 50 degrees of active and 60 degrees of passive motion with pain. Repetitive motion of the shoulder was not feasible because of severe pain and his reluctance to do that because of pain. The diagnosis was left upper extremity spastic hemiplegia following a recent stroke, and osteoarthritis of the left shoulder joint. VA outpatient treatment records dated from August 2007 to June 2010 show intermittent treatment for symptoms associated with the left shoulder disability. The treatment record show reports of continued left shoulder pain with a 50 year history of left shoulder dislocation. Degenerative joint disease of the left shoulder was also noted. The Veteran was treated with over-the- counter pain medication. A VA joints examination report dated in July 2008 shows that the Veteran reported experiencing pain and weakness in the left shoulder. He indicated that he had experienced two strokes in the preceding four years which had severely limited his ability to move or use is left arm due to stroke residuals. He reported he was able to barely form a grip with his hand status post the stroke, and his shoulder had very limited range of motion. He added that he was unable to raise his left arm to dress himself or to shower, and his wife would help with grooming. He indicated that prior to the first stroke, approximately four years earlier, he had severe limitations of his range of motion of his left shoulder, but was able to use his hand and do some lifting with the left arm. After his second stroke, he described feeling like a "cripple." His wife would have to cut his meat when eating and help with dressing. He could not hold a soda bottle with the left hand. The examiner noted there was evidence of guarding of movement and abnormal motion in the left shoulder. While there was pain and weakness, there was no deformity, giving way, instability, stiffness, incoordination, dislocation, subluxation, or decreased speed of joint motion. Daily severe flare-ups were noted. Physical examination revealed range of motion of the left shoulder was flexion to 30 degrees and abduction to 30 degrees with pain on motion. The examiner noted there was no additional loss of range of motion after repetitive use. The diagnosis was degenerative joint disease in the left shoulder. The examiner noted that functional impairment associated with the left shoulder, with respect to physical and sedentary activities, included decreased manual dexterity, problems with lifting and carrying, decreased strength upper extremity, pain, and disfigurement. The examiner added that the Veteran was status post two strokes and that he had reported stroke residuals in the left shoulder, arm, and hand. Without resorting to mere speculation, it was difficult for the examiner to determine how much of the functional limitation was attributable to his stroke residuals or to his service-connected left shoulder condition. VA outpatient treatment records dated from June 2010 to November 2010 show continued treatment of reported left shoulder pain. A VA examination report dated in November 2010 shows that the Veteran's entire claims file was reviewed in conjunction with conducting the examination of the Veteran. The Veteran reported severe pain to his left shoulder, associated with limited mobility. He added that he was unable to elevate his arm. He reported taking over-the-counter medication for the pain. It was also indicated that he had suffered a stroke about six years earlier and had residual left hemiplegia. He stated that he had limited mobility to his left shoulder even prior to the stroke. He had received no recent physical therapy or injections. His course was said to be getting progressively worse, and his response to treatment was said to be fair. The examiner indicated that there was no left shoulder deformity, giving way, or instability. There was pain, stiffness, weakness, and decreased speed of joint motion. There were no episodes of dislocation, subluxation, incoordination, locking, effusion, or inflammation. There were daily severe flare-ups of constant pain which could last hours, alleviated by over-the-counter medication. The functional effects of the flare-ups were said to be limited use of the arm and shoulder. There were no constitutional symptoms of arthritis, incapacitating episodes of arthritis, or inflammatory arthritis. He was able to stand for 15 to 30 minutes, but was unable to walk more than a few yards. No assistive devices were used. No weight bearing joint was affected. There was no loss of a bone or a part of a bone. There were no recurrent dislocations. Physical examination revealed abnormal motion, guarding of movement, and limited range of motion. There was pain with active range of motion. Left flexion was from zero to 25 degrees; left abduction was from zero to 25 degrees; left internal rotation was from zero to 25 degrees; and left external rotation was from zero to 40 degrees. There was objective evidence of pain following repetitive motion, but there were no additional limitations after three repetitions of range of motion. There was no joint ankylosis. X-rays revealed degenerative changes. The Veteran was said to have been a cab driver, but had been retired since the 1990's as he was eligible by age or duration of work. The diagnosis was left shoulder degenerative joint disease, adhesive capsulitis. The disability was said to have significant effects on usual occupation as to decreased mobility and strength, and upper extremity pain. He was also said to have problems with activities of daily living. The disability was said to have a mild effect on travelling and feeding; a moderate effect on recreation, toileting and grooming; and prevented chores, shopping, exercise, sports, bathing, dressing, and driving. The examiner added that due to the severity of the left shoulder degenerative joint disease and adhesive capsulitis, the Veteran had weak and painful movement limiting his functional ability. The examiner opined that the left shoulder condition was due to the orthopedic condition of degenerative joint disease and adhesive capsulitis rather than a history of a stroke residual. The objective evidence demonstrated pathology that was orthopedic in nature, and there was no residual of a hemiparesis that would be consistent with a stroke, but rather his presentation was consistent with orthopedic pathology. As noted above, the Veteran is already in receipt of the maximum 40 percent disability rating available for the minor shoulder and arm under Diagnostic Code 5200, therefore, the Board will consider the Veteran's disability under alternate diagnostic code provisions in a effort to possibly obtain a higher disability rating. The evidence, however, does not support a disability rating in excess of 40 percent under Diagnostic Code 5202. As stated before, the next higher rating of 50 percent under Diagnostic Code 5202 is available only upon evidence of nonunion of the humerus (a false, flail joint); and the highest disability rating of 70 percent requires loss of the head of the humerus (flail shoulder). Although medical records reflect evidence of glenohumeral joint space narrowing in the left shoulder, the record contains no evidence of any nonunion of the humerus or loss of the humerus head. As such, based on the medical evidence of record, a higher disability rating under Diagnostic Code 5202 would not be warranted. The highest possible disability ratings under Diagnostic Code 5201 (for limitation of motion of the arm) is 30 percent and under Diagnostic Code 5203 (for impairment of the clavicle or scapula) is 20 percent. Since the Veteran is already rated at 40 percent, evaluation under either of these diagnostic code provisions would not provide him with a greater benefit. The Board has also considered an increased disability rating for functional impairment due to pain; however, the Veteran is already receiving a disability rating based on symptomatology that includes limitation of motion and functional loss due to pain on motion. Additionally, regulations concerning functional loss are not applicable to increase the rating where a disability is rated at the maximum level provided by the diagnostic code under which it is rated, as is the Veteran's situation under Diagnostic Code 5200. See VAOPGCPREC 36-97 (holding that consideration must be given to the extent of disability under 38 C.F.R. §§ 4.40 and 4.45 "when a Veteran has received less than the maximum evaluation" under Diagnostic Code 5293); see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (Remand for the Board to consider functional loss due to pain was not appropriate where the claimant was already receiving the maximum disability rating available for limitation of motion); Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (although the Board is required to consider the effect of the Veteran's pain when making a rating determination, the rating schedule does not require a separate rating for pain). Therefore, because the Veteran is receiving the maximum schedular disability rating under Diagnostic Code 5200, an increased disability rating based on functional loss is not available. As such, a higher disability rating based on functional loss due to pain pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. The Board has considered the Veteran's assertions that his left shoulder disability warrants a higher disability rating. While he is competent to report that his symptoms are worse, the training and experience of medical personnel makes the VA and private physicians' findings more probative as to the extent of the disability. After reviewing all pertinent provisions, however, the Board can find no basis on which to assign a higher or separate disability rating. The preponderance of the evidence is against a disability rating higher than 40 percent for the Veteran's left shoulder disability. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER A disability rating in excess of 40 percent for a left shoulder disability, to include a frozen (minor) shoulder, with chronic dislocations, post-operative, is denied. REMAND Unfortunately, another remand is required in this case as to the issue of entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). Following the issuance of the most recent Supplemental Statement of the Case to the Veteran by VA in December 2010, in January 2011, VA received an addendum to the November 2010 VA examination report wherein the examiner indicated that the "Veteran's severe pain deemed him unemployable as the left shoulder pain and limitation of motion precluded him from obtaining gainful employment in this competitive job market." The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service- connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. In determining whether a Veteran is entitled to a TDIU, neither his non-service-connected disabilities nor his advancing age may be considered. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). In the December 2010 Supplemental Statement of the Case, the RO considered whether the entitlement to a TDIU on an extraschedular basis was warranted, but determined that the evidence did not show exceptional pattern of disability (with frequent hospitalizations or marked impairment in employment) as to render impractical the application of the regular schedular standards. However, it appears that the RO did not consider the December 2010 Addendum as it was not in the Veteran's claims file at the time of the issuance of the December 2010 Supplemental Statement of the Case. Since the record reflects that the Veteran may be unable to work because of his service-connected left shoulder disability, the Board must Remand the issue for the RO to again consider whether referral for extraschedular consideration is warranted in this case. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). Such a rating can include a TDIU. 38 C.F.R. § 4.16. 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.) The RO/AMC will review the additional evidence of record received by VA in January 2011, specifically the December 2010 Addendum to the November 2010 VA examination, and readjudicate the Veteran's claim of entitlement to a TDIU, to include whether referral of this matter for extraschedular consideration is warranted. If further action is required, it should be undertaken prior to further claim adjudication. If the benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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. 2010). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs