Citation Nr: 1233232 Decision Date: 09/25/12 Archive Date: 10/01/12 DOCKET NO. 05-38 032 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2005 rating decision in which the RO denied service connection for PTSD. In November 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2005, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month. In November 2006, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In a June 2007 decision, the Board denied service connection for PTSD. The Veteran, in turn, appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2008 Order, the Court granted a Joint Motion (filed by representatives of both parties) to vacate and remand the June 2007 Board decision, and returned this matter to the Board for further proceedings consistent with the Joint Motion. In February 2010, the Board remanded the claim for service connection for PTSD to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development. After completing the requested development, the RO continued to deny the claim (as reflected in an October 2010 supplemental SOC (SSOC)), and returned this matter to the Board for further appellate consideration. In a September 2011 decision, the Board denied service connection for PTSD. The Veteran, in turn, appealed the Board's decision to the Court. In a June 2012 Order, the Court granted a Joint Motion (filed by representatives of both parties) to vacate and remand the September 2011 Board decision, and returned this matter to the Board for further proceedings consistent with the Joint Motion. The Board acknowledges that, in his June 2011 Informal Hearing Presentation (IHP), the Veteran's representative argued that the Board had incorrectly characterized the matter on appeal, and that the claim should be characterized as entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran's representative cited Clemons v. Shinseki, 23 Vet. App. 1 (2009) in support of his assertion. In Clemons, the Court held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Board has considered the holding in Clemons, however, for reasons that will be discussed below, finds that the issue on appeal is correctly characterized as reflected on the title page. By way of history, the Veteran initially claimed service connection for a psychiatric disability (claimed as depression and delusional thinking) in March 2000. In a September 2001 rating decision, the RO denied service connection for major depressive disorder with psychotic features. The Veteran filed a notice of disagreement (NOD) in June 2002. A statement of the case (SOC) was issued in November 2003, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2004. In March 2004, the RO advised the Veteran that his February 2004 substantive appeal was not timely. See 38 C.F.R. §§ 20.200, 20.302 (2011). Later that month, the Veteran filed a NOD with the decision that his February 2004 substantive appeal was not timely, and the RO issued an SOC regarding this matter in April 2005. During the same time period, the RO, having interpreted the February 2004 substantive appeal as a request to reopen a claim for service connection for major depressive disorder with psychotic features, in a July 2004 rating decision, determined that the claim for service connection remained denied because the evidence submitted was not new and material. The Veteran filed a NOD with the July 2004 rating decision in August 2004. In May 2005, the Veteran indicated that he had received the April 2005 SOC (regarding the issue of timeliness of the February 2004 substantive appeal), but that he wished to drop this appeal and file a claim for service connection for PTSD. In November 2005, in addition to furnishing a SOC regarding the claim for service connection for PTSD (as indicated above), the RO also issued a SOC regarding the request to reopen the claim for service connection for an acquired psychiatric disorder (claimed as major depressive disorder with psychotic features). As also noted above, the Veteran filed a substantive appeal later that month. In the November 2005 substantive appeal, the Veteran checked box 9.A., indicating that he wanted to appeal all of the issues listed on the SOC. In box 10, he stated, "Issue on appeal at this time is service connection for PostTraumatic Stress Disorder." During the November 2006 hearing, the undersigned Veterans Law Judge clarified, and the Veteran's representative confirmed, that the single issue for the Board's consideration was entitlement to service connection for PTSD. The Veteran provided testimony regarding this matter. Accordingly, in light of the Veteran's characterization of the issue on appeal, as reflected in the November 2005 substantive appeal, as well as the clarification of the issue during the November 2006 hearing, the Board finds that the November 2005 substantive appeal perfected only an appeal as regards the claim for service connection for PTSD. The Veteran did not perfect an appeal as regards the request to reopen a claim for service connection for a psychiatric disorder other than PTSD at that time. In reaching the above conclusion, the Board has considered the Court's decision in Evans v. Shinseki, 25 Vet App 7 (2011). In Evans, the Veteran filed a timely NOD as to six issues addressed in a rating decision. He was furnished a SOC regarding these issues, and subsequently filed a timely Form 9. In the Form 9, he checked box 9.A.; however, he then listed only three of the six claims addressed in the SOC. The Board dismissed the three claims which were not listed in the Form 9, finding that the Veteran had not filed a substantive appeal as to those issues. The Court found that the Board's unexplained statement that the Veteran in Evans limited his appeal by the manner in which he completed his VA Form 9 constituted error, particularly in light of the Board's obligation to seek clarification of this type of ambiguity under 38 C.F.R. § 20.101(d) and the veteran-friendly, non-adversarial nature of the VA claims process. Evans, supra. The Court also indicated that the issues on appeal could have been limited if the record was clear that Veteran wished to do so. Id., at 9. In this case, for the reasons outlined above, the record is clear that, in November 2005, the Veteran was limiting his appeal to the issue of entitlement to service connection for PTSD. As previously discussed, he specifically stated that the issue on appeal was service connection for PTSD and, during the November 2006 Board hearing, his representative confirmed that service connection for PTSD was the single issue for consideration. Additionally, unlike in Evans, where the Veteran was furnished a single SOC addressing multiple issues, and then indicated that he wished to appeal all of the issues listed on the SOC, in this case, the Veteran was furnished two separate SOCs, each of which listed only one issue. Therefore, the Veteran's completion of box 9.A., indicating an intent to appeal the issue listed on the SOC ,is not ambiguous, as the issue of entitlement to service connection for PTSD was, indeed, the only issue listed on one of the two SOCs issued in November 2005. Moreover, although the pertinent regulation provides that, when the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s), the Board finds that such procedural requirements are not applicable in this case. See 38 C.F.R. § 20.101(d). In this regard, the Board is not addressing the question of whether the November 2005 Form 9 perfected an appeal as to a claim for service connection for a psychiatric disorder other than PTSD on its own initiative; rather, this matter was raised by the Veteran's representative in his June 2011 IHP (in which he asserted that a close reading of the Veteran's VA Form 9 did not appear to limit his claim to one for service connection for PTSD). Accordingly, the procedural requirements set forth in 38 C.F.R. § 20.101(d) are not applicable. Further, the Board notes that, subsequent to filing of the November 2005 Form 9, the Veteran filed a claim for service connection for major depression with psychotic features in October 2008. In a January 2009 rating decision, the RO found that new and material evidence had not been submitted sufficient to reopen the claim for service connection for major depressive disorder with psychotic features. The Veteran filed a NOD with this rating decision in April 2010; however, in correspondence dated in April 2010, the RO advised him that this NOD was not timely. See 38 C.F.R. § 20.302. The Veteran did not initiate an appeal as regards the determination that his April 2010 NOD was not timely. In September 2011, the Board found, however, that the untimely April 2010 NOD can be construed as a request to reopen a claim for service connection for a psychiatric disorder other than PTSD. The Board noted that as the RO had not subsequently adjudicated a request to reopen a claim for service connection for a psychiatric disorder other than PTSD, this matter was not properly before the Board; hence, it was referred to the RO for appropriate action. It does not appear that this request to reopen a claim for service connection for a psychiatric disorder other than PTSD has yet been addressed by the RO. As such, this matter is not properly before the Board, and is, thus, again referred to the RO for appropriate action. For the reasons expressed below, the matter on appeal is, again, being remanded to the RO, via the AMC. VA will notify the appellant when further action, on his part, is required. REMAND In light of points raised in the parties' Joint Motion and the Board's review of the claims file, further development of the claim on appeal is warranted. The Veteran has asserted that he has PTSD related to in-service stressors related to his service in Vietnam. His service personnel records confirm that he served in Vietnam from November 1967 to October 1968. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder; a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s); and credible supporting evidence that the claimed in-service stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The Board notes, however, that, on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The amendments to 38 C.F.R. § 3.304(f)(3) are applicable to claims pending before VA on or after July 13, 2010, including claims which remain pending because the Court vacated a Board decision on the claim and remanded it for readjudication. 75 Fed. Reg. 39,843. Pursuant to 38 C.F.R. § 3.304(f), as revised, if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (2011) (noting that VA has adopted the nomenclature of the DSM-IV). The Veteran contends he has PTSD resulting from the following: having his unit coming under constant rocket attack in Vietnam; losing his way on patrol for approximately five hours and getting lost in the woods in Vietnam; being fired upon and coming under mortar fire; seeing dead and mutilated bodies; and believing that he may have fathered a daughter in Vietnam, who sometimes controlled his thoughts and various events in his life. The Veteran's DD Form 214 reflects that he served as a light weapons infantryman. As noted above, his service personnel records confirm that he served in Vietnam from November 1967 to October 1968. Based on the personnel records reflecting service in Vietnam, the Veteran's descriptions of his experiences there, and affording him the benefit of the doubt, the Board finds that the Veteran's claimed stressors regarding witnessing and experiencing enemy attacks, seeing dead and mutilated bodies, and getting lost in Vietnam-which have been related to the Veteran's fear of hostile military activity-appear to be consistent with the places, types, and circumstances of the Veteran's service. Consequently, resolving all reasonable doubt in the Veteran's favor, and consistent with recent regulatory amendments, the Board finds that the Veteran's lay assertions may be accepted as sufficient evidence that the alleged stressors occurred-provided that a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor(s) is/are adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor. (Emphasis added.) In its September 2011 decision, the Board found that service connection for PTSD was not warranted. In making this decision, the Board noted the conclusion of a November 2000 VA mental disorders examiner who acknowledged that the Veteran had some symptoms of PTSD, but opined that he did not meet the criterion for a diagnosis of PTSD. Likewise, the Board relied on the opinion of a June 2005 VA PTSD examiner who opined that it was as likely as not that, in light of the Veteran's service in Vietnam, he was exposed to stressful incidents, but found upon examination that the Veteran did not meet the criteria for PTSD. Moreover, during an October 2008 VA comprehensive PTSD assessment, the examiner concluded that even assuming that the Veteran's reported stressors met criterion A for a diagnosis of PTSD, the Veteran did not meet the criteria for a diagnosis of PTSD. In September 2011, the Board observed that the June 2005 VA examination report does reflect some inaccuracies as to the history of the Veteran's psychiatric treatment and diagnoses. In this regard, the Board noted that the VA examiner stated that a review of the Veteran's VA treatment records did not indicate any diagnosis of PTSD. This is inconsistent with the diagnoses of PTSD noted in VA treatment records in February and April 2000. Despite the incorrect statements by the June 2005 VA examiner, the Board concluded that these errors do not change the fact that the Veteran was not found to meet the criteria for a current diagnosis of PTSD on examination. Thus, the Board found the June 2005 VA examination to be adequate to evaluate the claim for service connection for PTSD. Moreover, the Board noted that the October 2008 PTSD assessment provides a thorough and detailed evaluation of the matter of a current diagnosis of PTSD. As such, the Board determined that there was sufficient medical evidence of record for the Board to make a decision in this case, and denied the claim. In the Joint Motion, the parties noted that the Board failed to ensure that VA fulfilled its duty to provide a medical examination that is adequate for adjudication purposes in accordance with 38 C.F.R. § 4.2. Citing Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2009), the parties emphasized that an examination is adequate if it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" The parties observed that the Court noted that an adequate medical opinion is one about which the Board can "conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion." Id. at 304. In this case, the parties indicated that the June 2005 VA examination report was inadequate and did not fulfill the statutory duty to assist because the examiner failed to take into account that the Veteran's VA treatment records contained at least two assessments of PTSD, in February and April 2000, as well as a positive PTSD screen in May 2004. The parties noted that the June 2005 report merely stated, without comment, that a review of the Veteran's records "indicates no diagnosis of PTSD." Accordingly, the Board finds that an adequate examination and medical opinion is needed to fairly resolve the Veteran's claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the RO should arrange for the Veteran to undergo examination, by a psychologist or psychiatrist, at a VA medical facility (or a VA contract facility). The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim for service connection (as the original claim will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2011). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent medical facility. Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all outstanding, pertinent records. As regards VA treatment records, the claims file includes VA outpatient treatment records from the VA Medical Center (VAMC) in Providence, Rhode Island, dated through April 2010; however, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since April 2010. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The Board also points out that, in the Joint Motion, the parties indicated that the Board failed to ensure that the November 2006 hearing officer fully explained the issues and suggested the submission of evidence in accordance with 38 C.F.R. § 3.103(c)(2) (2011), as set forth in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The parties noted that during the November 2006 hearing, the undersigned VLJ did not clarify what elements were missing from the Veteran's claim. In Bryant, the Court held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Board notes that effective August 23, 2011, VA amended its hearing regulations to clarify that the regulatory provisions governing hearings before the Agency of Original Jurisdiction (AOJ) do not apply to hearings before the Board. To this end, the hearing provisions in 38 C.F.R. § 3.103, which were cited by the Court in Bryant, only apply to hearings before the AOJ and do not apply to hearings before the Board. Board hearings are instead governed by the hearing provisions in 38 C.F.R. Part 20, subpart H. As such, the duties Bryant imposed on Board Members to suggest the submission of additional evidence is no longer for application. See 76 Fed. Reg. 52572 (Aug. 23, 2011). Nonetheless, even if the requirements noted in the Joint Motion are no longer deemed applicable, the Board is bound by the findings contained in the Joint Motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and, therefore, the Board is not free to do anything contrary to the Court's prior action with respect to the same claim). Under these circumstances, to ensure that all due process requirements are met, and that the Veteran has full opportunity to supplement the record with appropriate evidence that substantiates every required element of the claim on appeal, prior to arranging for review of the claims file, the RO should undertake additional notification action. Specifically, the RO should, through a letter that provides written notice consistent with 38 C.F.R. § 3.103(c )(2), give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. In its letter, the RO should explain what is needed to substantiate the claim for service connection for PTSD, to include under the revised version of 38 C.F.R. § 3.304(f). Specifically, the Veteran should be advised to identify or submit evidence concerning whether he has PTSD resulting the identified stressors associated with hostile military or terrorist activities. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. The RO's adjudication of the claim should also include consideration of all evidence added to the record since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Providence VAMC all outstanding, pertinent records of mental health evaluation and/or treatment of the Veteran, since April 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the Veteran (at his current, correct address) and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. In its letter, the RO should explain what is needed to substantiate the claim for service connection for PTSD, to include under the revised version of 38 C.F.R. § 3.304 (f). The Veteran should be specifically advised to identify or submit evidence concerning whether he has PTSD as a result of his identified stressors associated with hostile military or terrorist activity. The RO should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2011). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA examination, by a psychologist or psychiatrist, at a VA medical facility (or VA contract facility). The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented history and assertions. All appropriate tests and studies, to include psychological testing, if deemed warranted, should be accomplished, and all clinical findings should be reported in detail. Considering only the Veteran's stressors in Vietnam involving fear associated with hostile military or terrorist activity-specifically, witnessing and experiencing enemy attacks, seeing dead and mutilated bodies, and getting lost in Vietnam-the examiner should clearly indicate whether the Veteran meets the diagnostic criteria for PTSD. If a diagnosis of PTSD resulting from one or more of the identified stressor(s )is warranted, the examiner should fully explain how the diagnostic criteria are met, to include commenting upon the link, if any, between the verified stressor(s) and the Veteran's symptoms. The examiner should set forth all examination findings (if any), along with the complete rationale for the conclusions reached, in a typewritten report. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for service connection for PTSD in light of all pertinent evidence (to include all that added to the claims file since the RO's last adjudication of the claims) and legal authority. 7. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2011). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2011).