Citation Nr: 1117182 Decision Date: 05/04/11 Archive Date: 05/10/11 DOCKET NO. 09-15 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected narcolepsy. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hepatitis B. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected degenerative disc disease of the lumbar spine and arthritis of the left knee. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a stomach disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine and arthritis of the left knee. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for tinnitus, to include as secondary to service-connected degenerative disc disease of the lumbar spine and arthritis of the left knee. 6. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to service-connected degenerative disc disease of the lumbar spine. 7. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for left carpal tunnel syndrome. 8. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for headaches, to include as secondary to service-connected degenerative disc disease of the lumbar spine and arthritis of the left knee. 9. Entitlement to a disability rating in excess of 40 percent for service-connected narcolepsy. REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1976 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In an attachment to his May 2009 substantive appeal, the Veteran requested a personal hearing at the RO before a Hearing Officer. A hearing was scheduled for August 19, 2009, however, the Veteran failed to report for this hearing. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2010). As will be discussed in further detail in the following decision, the Board finds that new and material evidence sufficient to reopen the previously denied claim for service connection for headaches has been received. Thus, to this extent, the Veteran's appeal as to this issue is being granted. The de novo claim for service connection for headaches, together with the Veteran's claim of entitlement to an increased rating for narcolepsy, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The competent evidence of record indicates that sleep apnea was caused by the Veteran's service-connected narcolepsy. 2. In a December 6, 2005 rating action, the RO in Milwaukee, Wisconsin denied service connection for hepatitis B, erectile dysfunction, a stomach disability, tinnitus, a cervical spine disability, left carpal tunnel syndrome and headaches. A timely appeal as to these issues was not perfected. 3. The evidence associated with the claims folder subsequent to the December 6, 2005 rating action, considered in conjunction with the record as a whole, does not raise a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for hepatitis B, erectile dysfunction, a stomach disability, tinnitus, a cervical spine disability, or left carpal tunnel syndrome. 4. Additional evidence received since the December 2005 rating action, with respect to the Veteran's claim of entitlement to service connection for headaches, is neither cumulative nor redundant, and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Sleep apnea is due to, or the result of, the Veteran's service-connected narcolepsy. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2010). 2. The December 6, 2005 rating action which denied service connection for hepatitis B, erectile dysfunction, a stomach disability, tinnitus, a cervical spine disability, and headaches and continued a prior denial of service connection for left carpal tunnel syndrome is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 3. Evidence received since the December 6, 2005 rating action is not new and material, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hepatitis B. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 4. Evidence received since the December 6, 2005 rating action is not new and material, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for erectile dysfunction. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 5. Evidence received since the December 6, 2005 rating action is not new and material, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a stomach disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 6. Evidence received since the December 6, 2005 rating action is not new and material, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 7. Evidence received since the December 6, 2005 rating action is not new and material, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a cervical spine disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 8. Evidence received since the December 6, 2005 rating action is not new and material, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for left carpal tunnel syndrome. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 9. New and material evidence having been received, the claim for service connection for headaches is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of a claim to reopen, as is the case here, VA must look at the bases for the denial in the prior decision(s) and respond with a VCAA notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. As will be discussed in further detail in the following decision, the Board is granting the issue of whether new and material evidence has been received sufficient to reopen a previously denied claim of service connection for a headache disability as well as the claim for service connection for sleep apnea. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to these issues, no further discussion of the VCAA is required with respect to these claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). With respect to the remaining issues on appeal, the Board notes that the VA issued a VCAA notice letter to the Veteran in December 2007, prior to the initial adjudication of his claims. This letter informed the Veteran of what evidence was required to substantiate his new and material claims. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence and notified him as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. The December 2007 notice letter informed the Veteran of all pertinent notice elements delineated in 38 C.F.R. § 3.159, and further advised the Veteran that his claims of service connection for hepatitis B, erectile dysfunction, a stomach disability, tinnitus, a cervical spine disability and left carpal tunnel syndrome had been previously denied and that in order to reopen these claims he would have to submit new and material evidence. The Board further notes that the December 2007 letter provided the Veteran with specific notice as to why his claims were denied and what evidence would be material to his claims. To wit, the RO informed the Veteran that his erectile dysfunction claim "was previously denied on a direct, secondary and aggravated basis because there was no evidence of erectile dysfunction in service, [his] erectile dysfunction was not found to be related to [his] service-connected lumbar spine condition, and [his] pre-existing erectile dysfunction was not aggravated beyond normal progression by [his] period of military service." The Veteran was informed that his cervical spine disability was "denied on a direct, secondary, and presumptive basis because there was no evidence of treatment or a diagnosis for (degenerative disc disease (DDD)) and arthritis of the cervical spine while in service, no evidence showing a relationship between your service-connected DDD of the lumbar spine and your claimed DDD of the cervical spine, and no evidence of DDD and arthritis of the cervical spine to a compensable degree within one year of [his] military separation." The Veteran was informed that his claim for hepatitis B was "denied because there was no evidence of a positive diagnosis of hepatitis B in service, and no evidence of a current definitive diagnosis of hepatitis B or medical evidence to relate such to service. Additionally, there was no evidence of any chronic liver disease in service." The Veteran's was informed that his left wrist carpal tunnel syndrome claim was previously denied "because there was no evidence that left wrist carpal tunnel syndrome occurred in or was caused by military service." Finally, the Veteran was informed that his stomach and tinnitus claims were denied because there was no evidence that these disabilities "occurred during [his] military service, nor was there any medical evidence showing that [he] currently suffered from stomach problems or tinnitus as a result of [the] Vioxx use for [his] service-connected back and leg condition[s]." As such, the Veteran was advised of the bases for the previous denials and what evidence would be necessary to reopen the claims. See Kent supra. In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims. In particular, the record contains the Veteran's service treatment records, VA outpatient medical records, private medical records and multiple VA examination reports. The record reflects that the Veteran was provided with VA examinations in May 2007 and June 2007. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinions proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the examinations are adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2010). The Board recognizes that the Veteran has not been afforded VA examinations in connection with his claims to reopen the previously denied issues of entitlement to service connection for hepatitis B, erectile dysfunction, a cervical spine disability or left carpal tunnel syndrome. The Board observes, however, that an examination is not necessary if no new and material evidence has been received (as is the case with these issues). 38 C.F.R. § 3.159(c)(4)(iii). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. His failure to appear for a scheduled hearing at the RO before a Hearing Officer, and his subsequent failure to reschedule, is being treated as a withdrawal, as detailed in the Introduction. See 38 C.F.R. § 20.704(d) (2010). Thus, the Board will proceed to a decision. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claims has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Sleep Apnea In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2010). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. See 38 C.F.R. § 3.310 (2010). See also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is seeking entitlement to service connection for sleep apnea on either a direct basis or a secondary basis. Specifically, in a February 2008 statement, the Veteran contended that he developed sleep apnea during service. The Veteran has also contended that his sleep apnea is a result of his service-connected narcolepsy. See an August 2008 statement. As the evidence of record supports a grant of service connection for sleep apnea on a secondary basis, the Board need not address the Veteran's direct service connection contentions. Upon review, the evidence of record indicates that the Veteran has been diagnosed with sleep apnea. See the July 2008 VA examination report. The Veteran was also granted service connection for narcolepsy in a November 2004 rating action. Accordingly, the first two Wallin elements have been demonstrated. With respect to the third Wallin element, after reviewing the claims folder and providing a thorough examination, the July 2008 VA examiner stated that, while the medical literature did not draw "a definitive link between narcolepsy and sleep apnea," it is at least as likely as not that the two conditions are interrelated. The examiner further indicated that, while he could not "determine without resorting to speculation if narcolepsy caused sleep apnea or if narcolepsy aggravated sleep apnea," he was able to determine that the two conditions can coexist and that "people with narcolepsy have a higher than expected incidence of other sleep disorders, including obstructive sleep apnea." While the July 2008 VA examiner indicated that medical literature did not offer a clear link between sleep apnea and narcolepsy, the examiner's opinion clearly indicates that the two conditions are related. As noted immediately above, the VA examiner indicated that there was a relationship between the Veteran's sleep apnea and his service-connected narcolepsy and that people with narcolepsy, such as the Veteran, have a higher incidence of other sleep disorders, including sleep apnea. While the Board acknowledges that the examination report contains some ambiguity regarding the exact nature of the relationship between narcolepsy and sleep apnea, the report clearly indicates that the two disabilities are related. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected narcolepsy has resulted in his sleep apnea. In summary, for the reasons and bases expressed above, the Board concludes that the evidence supports the Veteran's claim of entitlement to service connection for sleep apnea on a secondary basis. The benefit sought on appeal is accordingly granted. III. New and Material In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. The Board notes that the definition of material evidence was revised in August 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2006)]. This change in the law pertains only to claims filed on or after August 29, 2001. Because the Veteran's claim to reopen in was received in October 2007, the claim will be adjudicated by applying the revised section 3.156, which provides that new evidence means existing evidence not previously submitted to agency decision makers. 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a) (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2010). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Further, a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption is rebutted where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Id. To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The law further provides that, if a preexisting disorder is noted, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing by clear and unmistakable evidence "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). When the Veteran's claims were denied by the RO in December 2005, the record contained the Veteran's service treatment records, service personnel records, in-service hospitalization records, VA outpatient treatment records, private treatment records, lay statements and multiple VA examination reports. The specific reasons for the RO's denial of service connection for the Veteran's claimed disabilities will be discussed in detail below. The December 2005 rating action is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2010). As explained above, the Veteran's claim of entitlement to service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted [i.e., after the December 2005 rating action] raises a reasonable possibility of substantiating the Veteran's claims. The evidence associated with the Veteran's claims folder since the December 2005 rating action includes VA treatment records, private medical records, service personnel records, lay statements, and multiple VA examination reports. With respect to the Veteran's service personnel records, 38 C.F.R. § 3.156(c) provides: 'Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claim, VA will reconsider the claim . . ..' In this case, while the additional service personnel records existed prior to the RO's December 6, 2005 rating action, and were added to the Veteran's claims file on December 12, 2005, they are not 'relevant' to the Veteran's claims as is required by the regulation. Specifically, the Veteran's service personnel records detail his record of assignments and location of service, they do not address the Veteran's claimed disabilities in any way. Accordingly, the newly added service personnel records cannot be used to reopen the Veteran's claims. 1. Hepatitis B In the December 2005 rating action, the RO found that the Veteran was not diagnosed or treated for hepatitis B during service. It was noted that, while service treatment records document that he requested blood testing in July 1987 because members of his family were "chronic carriers," laboratory testing was negative. See a September 2, 1987 treatment record. While the Veteran reported that he had a history of hepatitis during a March 1997 dental report of medical history, it was noted that this was not clinically significant. In addition, in his April 1997 separation examination the Veteran reported a history of Hepatitis, the reviewing physician, however, documented that the Veteran had a questionable history of Hepatitis A but there was no evidence of chronic liver disease. In addition to the lack of hepatitis during service, the RO also noted that "there is also no evidence of any current hepatitis or liver disability that is related to [the Veteran's] period of military service." The recently received VA outpatient treatment records include the results of a May 2006 blood test which revealed that the Veteran's liver function test was slightly elevated and that he was requested to avoid alcohol. It was specifically noted that the Veteran has "immunity against hepatitis B" as the immunizations he "had in the past are still good." Similarly, a December 2007 VA outpatient treatment record documented that the Veteran's "fasting blood work was fine." While his liver function test was "just borderline high" the report also noted that his liver function test was "fine." He was not diagnosed with Hepatitis or any liver disease. While the Board notes that the VA outpatient treatment records include a "computerized problem list" which indicates that the Veteran is a hepatitis B carrier, as alluded to above, the recently received medical records do not indicate that the Veteran has been diagnosed with hepatitis despite repeated blood tests. The notation that the Veteran is a "hepatitis B carrier" on the computerized problem list does not constitute a diagnosis. In short, although the recently received medical records are "new" insofar as they were not of record at the time of the RO's prior denial, the records do not include a diagnosis of hepatitis B, or any liver disease, and therefore cannot be considered "material." The Board notes that the Veteran has submitted an August 2008 statement indicating that he was diagnosed with hepatitis B while on active duty. This contention is not new. It was advanced by the Veteran in a January 2005 lay statement where it was considered and rejected by the RO at that time in light of the pertinently negative service treatment records. The Veteran's repeated contentions are therefore not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). While the Board acknowledges that the Veteran is presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that he is competent to opine on complex medical questions such as whether hepatitis B or a current liver disease is present. In Moray v. Brown, 5 Vet. App. 211, 214 (1993), the Court specifically stated that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." There has been added to the record no competent medical evidence of Hepatitis B or a liver disease. Because the additionally received evidence does not tend to establish a current disability, it does not raise a reasonable possibility of substantiating the claim on the merits. See 38 C.F.R. § 3.156 (2010). In the absence of such evidence, the Veteran's claim may not be reopened. The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so. 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to submit evidence in support of his claim]. Based on this evidentiary posture, evidence of a current disability remains lacking. The Board must conclude that new and material evidence has not been received and that the Veteran's claim for service connection for Hepatitis B may not be reopened. The benefit sought on remains denied. 2. Erectile Dysfunction In the December 2005 rating action, the RO noted that the Veteran had claimed that he had erectile dysfunction as secondary to medication prescribed for his service-connected lumbar spine and left knee disability. Following a VA examination, it was reported that the Veteran's erectile dysfunction pre-existed service and was not aggravated beyond the normal progression of the disease by his military service. The examiner also found that this condition was not associated with his service-connected degenerative disc disease of the lumbar spine or any medications used for this disability. Instead, the examiner indicated that the Veteran's erectile dysfunction is related to his premature ejaculation. See the August 2005 VA examination report. In denying the Veteran's claim, the RO noted that "the evidence does not show that erectile dysfunction . . . is related to the service-connected lumbar spine condition, nor is there any evidence of this disability during military service. Therefore service connection for erectile dysfunction . . . is denied on a direct, secondary, and aggravated basis." In a recently received August 2008 statement, the Veteran's fiancée indicated that the Veteran has had erectile dysfunction for as long as she has known him. She further indicated that medical professionals have informed the Veteran that his sexual dysfunction problems are related to his service-connected narcolepsy. Similarly, in an August 2008 statement, the Veteran requested that his claim for erectile dysfunction be considered as secondary to his service-connected narcolepsy and sleep apnea because of the medical evidence which indicates that these disabilities are related. The Board observes that the August 2008 statements from the Veteran and his fiancée are presumed to be credible. However, their report of what a health care provider purportedly said, filtered as it is through a lay person's sensibilities, is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Accordingly, while the lay statements are new insofar as it was not before the RO at the time of the March 2005 rating decision, the statements are not material and cannot be used to reopen his claim. While the Veteran has submitted a new theory of entitlement (that his erectile dysfunction is related to his service-connected sleep disorders), new and material evidence is still needed to reopen the prior December 2005 final decision, including on the new theory of entitlement the Veteran has submitted. See Ashford v. Brown, 10 Vet. App. 120 (1997) [reliance upon a new etiological theory is insufficient to transform a claim which has been previously denied into a separate and distinct, or new, claim]. Thus, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004). As noted above, the Veteran's claim of entitlement to service connection for erectile dysfunction was denied because the evidence failed to demonstrate a link between erectile dysfunction and his military service, or a link between erectile dysfunction and a service-connected disability, or that the Veteran's pre-existing erectile dysfunction was aggravated during service. The recently received medical evidence does not address such questions. While the Board is cognizant that the Veteran is being granted service connection for sleep apnea, and that the Veteran has contended that his erectile dysfunction is secondary to his sleep apnea, this newly service-connected disability does not raise a reasonable possibility of substantiating the claim. As discussed above, the evidence of record indicates that the Veteran's erectile dysfunction is due to his non service-connected premature ejaculation. See the August 2005 VA examination report. The Board acknowledges that the Court has recently held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). While cognizant of the Court's holding in Shade, the recently received evidence is not sufficient to reopen the Veteran's claim as it does not include any competent evidence suggesting that the Veteran's erectile dysfunction is related to his military service, or to a service-connected disability, or that it was aggravated during service. Furthermore, the VA had previously afforded the Veteran with a VA examination which clearly described the etiology of his erectile dysfunction. There has been added to the record no competent evidence regarding the etiology of the Veteran's erectile dysfunction. Because the additionally received evidence does not tend to establish a nexus or aggravation of a preexisting disability, it does not raise a reasonable possibility of substantiating the claim on the merits. See 38 C.F.R. § 3.156 (2010). In the absence of such evidence, the Veteran's claim may not be reopened. The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so. 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to submit evidence in support of his claim]. Based on this evidentiary posture, evidence of a nexus or aggravation remains lacking. The Board must conclude that new and material evidence has not been received and that the Veteran's claim for service connection for erectile dysfunction may not be reopened. The benefit sought on remains denied. 3. A Stomach Disability Upon review of the evidence of record, in December 2005, the RO concluded that the Veteran's service treatment records are negative for any treatment or diagnosis of a stomach disability. While the Veteran had contended that he was experiencing stomach problems and blood in his bowel movements due to the use of Vioxx for his service-connected low back and left knee arthritis, the record did not indicate that the Veteran suffered from a current stomach disability. The RO specifically noted that "the evidence does not show that [the Veteran] currently [has] any stomach problems, to include heartburn, that can be connected with [his] taking Vioxx medication for his service-connected back and leg conditions, nor is there any evidence of this disability during military service." The recently received evidence contains May 2007 VA examination report. After reviewing the Veteran's claims folder and conducting a thorough examination, the VA examiner indicated that the Veteran has a small hiatal hernia. The examiner noted, however, that "there is no literature that supports a relationship between the use of arthritis medications, ie., Vioxx, [and] a hiatal hernia. These type[s] of medications have been known to cause mucosal irritation and acid reflux, which is not evident on the upper GI study. Therefore, the Veteran's hiatal hernia is less likely as not caused by nor aggravated by [the] medications he uses for his service-connected conditions." While the Board notes that record now includes evidence of a current disability (a hiatal hernia), this evidence, when considered with the previous evidence of record, does not raise a reasonable possibility of substantiating his claim. Specifically, the evidence of record is still lacking evidence of nexus between the Veteran's disability and his Vioxx medication. Furthermore, the Veteran has not submitted, and VA has not received, any evidence indicating that the Veteran had an in-service stomach disease or injury. In the absence of such evidence, the Veteran's claim cannot be reopened, and the benefit sought on appeal remains denied. As noted above, the Court has recently held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade supra. In this case, however, the recently received evidence is not sufficient to reopen the Veteran's claim as it does not include any competent evidence suggesting that the Veteran's had an in-service stomach injury or disease or that his current hiatal hernia is related to the medication he takes for his service-connected disabilities. Furthermore, the VA has provided the Veteran with a VA examination which specifically found that the Veteran's current disability is not related to the medication he takes for his service-connected disabilities. In addition to the May 2007 VA examination report, the record also contains multiple VA treatment records which document treatment for gastrointestinal problems such as a colonoscopy and a diagnosis of flatulence. These recent VA treatment records document ongoing medical treatment for gastrointestinal disorders. As such, these medical records are not new and material. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence]. To the extent that the Veteran continues to assert that he has stomach disability which related to service or to his service-connected disabilities, his repeated contentions are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, while the Board acknowledges that the Veteran is presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that he is competent to opine on complex medical questions such as the etiology of a stomach disability. In Moray v. Brown, 5 Vet. App. 211, 214 (1993), the Court specifically stated that lay persons are not competent to offer medical opinions and that such evidence does not provide a basis on which to reopen a claim for service connection. In Routen v. Brown, 10 Vet. App. 183, 186, (1997), the Court again noted that "[l]ay assertions of medical causation cannot suffice to reopen a claim under 38 U.S.C. 5108." There has been added to the record no evidence of an in-service disease or injury or evidence that the Veteran's has a stomach disability which is related to the medication he takes for his service-connected disabilities. As such, the recently received evidence does not raise a reasonable possibility of substantiating the claim on the merits. See 38 C.F.R. § 3.156 (2010). In the absence of such evidence, the Veteran's claim may not be reopened. The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so. 38 U.S.C.A. § 5107(a). Based on this evidentiary posture, evidence of a nexus remains lacking. The Board must conclude that new and material evidence has not been received and that the Veteran's claim for service connection for a stomach disability may not be reopened. The benefit sought on remains denied. 4. Tinnitus In the December 2005 rating action, the RO noted that the Veteran had claimed that he experienced tinnitus due to the medication he takes for his service-connected low back and right knee arthritis. In denying the claim, the RO noted that "the evidence does not show that [the Veteran had] tinnitus that is related to the use of Vioxx for [his] service-connected conditions, nor is there any evidence of this disability during military service." The evidence received since the December 2005 rating action, includes a May 2007 VA examination report. After reviewing the Veteran's claims folder, and conducting an audiological examination, the VA examiner reported that the Veteran "states that he has had ringing in his ears for the last year or so which would date to the middle of 2006. Vioxx was taken off the market in 2005. Due to this reason alone, it is more likely than not that the tinnitus is due to some other reason or etiology." Accordingly, while the May 2007 VA examination is "new" insofar as it was not before the RO at the time of the December 2005 denial, it cannot be considered "material" because it does not relate to an unestablished fact necessary to substantiate the Veteran's claim, such as whether the Veteran's tinnitus is related to a service-connected disability or the medication taken therefore. The Veteran has not contended that his tinnitus is directly related to his military service. The Board notes, however, that the December 2005 rating action denied his claim on a direct and secondary basis. As noted above, the RO found that the Veteran did not have any evidence of tinnitus during service. The recently received evidence does not contain any records indicating that the Veteran suffered an acoustic trauma or had tinnitus during service. To the extent that the Veteran continues to assert that he has tinnitus due to the medication he was proscribed for his arthritis, his repeated contentions are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, while the Board acknowledges that the Veteran is presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that he is competent to opine on complex medical questions such as the etiology of his tinnitus. See Moray and Routen, both supra. There has been added to the record no competent evidence of acoustic trauma or tinnitus during service or of a nexus between the Veteran's tinnitus and a service-connected disability, to include the medication prescribed therefore. Because the additionally received evidence does not tend to establish an in-service injury or a nexus, it does not raise a reasonable possibility of substantiating the claim on the merits. See 38 C.F.R. § 3.156 (2010). In the absence of such evidence, the Veteran's claim may not be reopened. The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so. 38 U.S.C.A. § 5107(a). Based on this evidentiary posture, evidence of an in-service injury or a nexus remains lacking. The Board must conclude that new and material evidence has not been received and that the Veteran's claim for service connection for tinnitus may not be reopened. The benefit sought on remains denied. 5. Degenerative Disc Disease Of The Cervical Spine And Left Carpal Tunnel Syndrome In December 2005, the RO noted that the Veteran was seeking service connection for arthritis and degenerative disc disease of the cervical spine as secondary to his service-connected lumbar spine disability. The Veteran was afforded a VA examination in August 2005 which revealed that his degenerative disc disease and arthritis of the cervical spine were not related to his service-connected low back disability. The RO also noted that there was no evidence to correlate this disability to his military service, and no evidence of degenerative changes within one year of separation from service. With respect to the Veteran's left wrist carpal tunnel syndrome, the RO stated in the December 2005 rating action that the Veteran was not diagnosed or treated for left carpal tunnel syndrome during service. It was also noted that while "VA treatment records denote complaints of bilateral wrist pain in 2001" it was noted that the Veteran was working at the post office doing repetitive hand work. Similarly, private treatment records from the East Mequon Surgery Center indicated that the Veteran had surgery to alleviate his left carpal tunnel syndrome, but that these records do not associate this condition with his military service. The recently received VA treatment records document ongoing treatment for the Veteran's cervical spine and left carpal tunnel syndrome. See, e.g., a June 2006 treatment record and an April 2006 treatment record, respectively. As such these reports cannot be considered "new" in that they do not add any additional information to the diagnosis of degenerative disc disease of the cervical spine or left wrist carpal tunnel syndrome that was already of record in December 2005. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) [medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence]. To the extent that the Veteran continues to assert that he has a cervical spine disability which is related to his military service or his service-connected lumbar spine disability, or that his left carpal tunnel syndrome is related to his military service, his repeated contentions are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Moreover, while the Board acknowledges that the Veteran is presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that he is competent to opine on complex medical questions such as the etiology of his cervical spine disability or his carpal tunnel syndrome. See Moray and Routen, both supra. There has been added to the record no competent evidence which describes the etiology of the Veteran's cervical spine disability or his carpal tunnel syndrome. Because the additionally received evidence does not tend to establish a nexus, it does not raise a reasonable possibility of substantiating the claim on the merits. See 38 C.F.R. § 3.156 (2010). In the absence of such evidence, the Veteran's claim may not be reopened. The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so. 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to submit evidence in support of his claim]. Based on this evidentiary posture, evidence of a nexus remains lacking. The Board must conclude that new and material evidence has not been received and that the Veteran's claim for service connection for a cervical spine disability and carpal tunnel syndrome may not be reopened. The benefits sought on remain denied. 6. Headaches In the December 2005 rating action, the RO noted that the Veteran had contended that the medication he was taking for his service-connected low back and right knee arthritis (Vioxx) was causing him to have headaches. Upon review of the evidence, the RO noted that "there is no evidence of treatment or diagnosis of headaches in service, and no evidence of a current medical diagnosis of headaches." As such, the RO concluded that the evidence does not show that the Veteran currently has a headache disability that is related to his past use of Vioxx and that there is also no evidence of this disability during military service. The recently received evidence includes a June 2007 VA examination which determined that the Veteran suffers from a headaches. This evidence is "new" in that it was not of record at the time of the December 2005 denial. The evidence is also "material" because it relates to an unestablished fact necessary to substantiate the claim. The Board finds that the newly submitted evidence addresses the basis of the prior denial in that the Veteran now has shown that he currently suffers from a headache disability. See Shade, supra (regulations do not require new and material evidence as to each previously unproven element of a claim). Inasmuch as the record indicates that the Veteran is service-connected for a low back disability and arthritis of the left knee, and that he currently has a diagnosis of a headache disability, the Board finds that the new evidence raises a reasonable possibility of substantiating the claim on a secondary basis. In addition, the Board notes that the Veteran's service treatment records document that he complained of having had headaches in a July 1996 treatment record. The Board has determined that new and material evidence sufficient to reopen the previously denied claim for service connection for a headache disability has been received. The Board grants this aspect of the Veteran's appeal. The underlying claim for service connection for a headache disability will be addressed in the Remand portion of this decision. ORDER Entitlement to service connection for sleep apnea, as secondary to the service-connected narcolepsy, is granted. New and material evidence not having been received, the Veteran's claim for service connection for hepatitis B is not reopened. New and material evidence not having been received, the Veteran's claim for service connection for erectile dysfunction is not reopened. New and material evidence not having been received, the Veteran's claim for service connection for a stomach disability is not reopened. New and material evidence not having been received, the Veteran's claim for service connection for tinnitus is not reopened. New and material evidence not having been received, the Veteran's claim for service connection for degenerative disc disease of the cervical spine is not reopened. New and material evidence not having been received, the Veteran's claim for service connection for left carpal tunnel syndrome is not reopened. New and material evidence having been received, the appeal to reopen the previously denied claim for service connection for a headache disability is granted. To this extent only, the appeal is allowed. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the issues of entitlement to service connection for a headache disability and an increased rating for narcolepsy must be remanded for further evidentiary development. With respect to the Veteran's headache claim, in a March 2005 claim, the Veteran indicated that he has a headache disability as a result of the medication he took for his service-connected low back and left knee disabilities. In the now final December 2005 rating action, the RO denied the Veteran's claim on both a direct and secondary basis due to the absence of a current headache disability. As described above, there is now of record evidence, in the form of the June 2007 VA examination report which indicates that the Veteran has a headache disability. This evidence, while sufficient to reopen the Veteran's disability claim, is not sufficient to allow the claim. Specifically, the Board notes that the June 2007 VA examiner did not indicate whether the Veteran's headache disability was related to his military service or to a service-connected disability, to include the medication taken therefore. Under these circumstances, a nexus opinion must be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) & Charles v. Principi, 16 Vet. App. 370 (2002). See also 38 C.F.R. § 3.159(c)(4) (2010) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. With respect to the Veteran's narcolepsy claim, the Board notes that narcolepsy is rated under the same criteria as used for petit mal seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8108 (2010). Under Diagnostic Code 8911, petit mal epilepsy is rated under the general rating formula for minor seizures, which provides disability ratings based on the average frequency of major and minor seizures. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associates with staring or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head or sudden loss of postural control. See 38 C.F.R. § 4.124a (2010) [Diagnostic Code 8911, notes (1) and (2)]. In this case, the Veteran was last afforded a VA examination to evaluate his service-connected narcolepsy in June 2007. This report indicates that the examiner did not review the Veteran's claims folder. More significant, however, is fact that the examination report does not provide any information pertinent to the ratings criteria. Specifically, while private treatment records from before and after the June 2007 VA examination document that the Veteran was experiencing episodes of sleep paralysis and cataplexy, the examination report does not address whether these symptoms are present and, if so, the frequency at which they occur. The Board also notes that, in July 2008 treatment record, the Veteran indicated that he believed his disability was getting worse. The record does not contain any medical evidence or lay statements which describe the frequency of the Veteran's cataplexy or sleep paralysis following this record. Because the Veteran has alleged that his disability has increased in severity since his last examination and that the evidence does not adequately address the current state of his service-connected disability, the Board finds that an additional examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997) [a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination]. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a VCAA notification letter pertaining to the claim for service connection for a chronic headache disability. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non VA health care providers who have treated him for his headache and narcolepsy disabilities. The AMC should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. The Board is particularly interested in records of VA treatment rendered after April 2009 and private treatment from May 2008. All attempts to locate and obtain these records should be documented in the Veteran's claims folder. 3. Then, schedule the Veteran for a VA examination to determine the nature, extent and etiology of his headaches. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Any testing deemed necessary should be performed. For any headache disability diagnosed on examination, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disability had its clinical onset in service or is otherwise related to active duty. The examiner should also express an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that the Veteran's headache disability was caused or aggravated (permanently worsened beyond normal progression) by a service-connected disability, to include the use of Vioxx in treating his service-connected left knee and lumbar spine arthritis. If the examiner finds that the Veteran's headache disability is aggravated by these service-connected disorder(s), he/she should quantify the degree of aggravation. 4. Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected narcolepsy. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Any necessary testing should be performed. All pertinent seizure pathology, which is credibly reported by the Veteran or found on examination, should be noted in the report of the evaluation, to include the average frequency, if any, of any major or minor seizures. (The regulatory definitions of a major and minor seizure have been set forth in the Board's discussion above.) 5. Thereafter, readjudicate the issues of entitlement to service connection for a headache disability and entitlement to an increased rating greater than 40 percent for narcolepsy. If the decisions remain adverse to the Veteran, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). The Veteran has the right to submit additional evidence and argument on the 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 by the Court 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). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs