Citation Nr: 1237138 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-10 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to an increased initial rating for mechanical low back pain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney at Law ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran reportedly served on active duty from August 1988 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in July 2008. A statement of the case was issued in December 2008, and a substantive appeal was received in January 2009. In his January 2009 substantive appeal, the Veteran appeared to raise the issue of service connection for an unspecified left knee disability and for right leg shrinking. In a March 2009 VA Form 21-0820, Report of General Information, the Veteran indicated that he was not seeking a claim of service connection for an unspecified left knee disability. An August 2009 rating decision granted service connection for right lower extremity leg length discrepancy; he has not disagreed with the rating assigned. Hence, the Board finds that the matters are not before the Board and do not need to be referred to the RO for additional development. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether TDIU is warranted as a result of that disability. At the June 2008 and August 2009 VA examinations, the Veteran reported working apartment maintenance and did not assert that he was unemployable due to service-connected disabilities. In the present case, the Board does not find an indication in the record that reasonably raised a claim of entitlement to TDIU. The Board also observes that in May 2012, the Veteran's attorney requested that the case be held in abeyance for 90 days for the submission of additional evidence; no evidence has been received. The issue of service connection for an unspecified right knee disability is REMANDED to the RO. VA will notify the Veteran if further action, on his part, is required. FINDING OF FACT The Veteran's service-connected mechanical low back pain is not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 10 percent for the Veteran's service-connected mechanical low back pain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Codes (Codes) 5235-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Duty to Notify The record shows that in a January 2008 letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA to the Veteran in January 2008, which was prior to the June 2008 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the January 2008 letter also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. The Board also stresses that since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in January 2008), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the Court has also determined that the statutory scheme does not require another VCAA letter in a case such as this where the veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes all identified medical records, including review of Virtual VA (i.e., electronic records). The Veteran was afforded a VA examination in June 2008. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Legal Criteria The present appeal involves the Veteran's claim that the severity of his service-connected mechanical low back pain warrants an increased rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the appeal arises from the original assignment of a disability evaluation following award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected mechanical low back pain has been rated by the RO under the provisions of Diagnostic Code 5237. The General Rating Formula for Diseases and Injuries of the Spine holds that for diagnostic codes 5235 to 5243, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 30 percent rating is awarded for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal range of motion for each component of spinal motion provided in this note is the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in a neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); and 5243 Intervertebral disc syndrome. Additionally, intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks warrants a 20 percent evaluation. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent evaluation. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Analysis In the present case, the Veteran appeals for assignment to a disability rating in excess of the currently assigned 10 percent throughout the period since the effective date of the grant of service connection for mechanical low back pain. The Veteran underwent a VA examination in June 2008. During this examination, the Veteran complained of low back pain for three years; he denied injury or treatment for his low back. He denied bladder complaints, bowel complaints, erectile dysfunction, leg or foot weakness, falls or unsteadiness, numbness, or visual dysfunction. He complained of stiffness, spasms, and pain, described as dull, moderate, daily but intermittent pain without radiation of the pain. He denied any fatigue, decreased motion, weakness, or experiencing any flare-ups. Clinical findings in the June 2008 examination pertinent to the Veteran's service-connected mechanical low back pain disability featured range of motion test results. Flexion was to 70 degrees (with pain beginning at 50 degrees), extension to 30 degrees (without pain), right and left lateral flexion to 30 degrees (without pain), and right and left lateral rotation to 30 degrees (without pain). There was normal curvature of the spine. Muscle spasm and tenderness were noted, but the examiner reported that it did not result in abnormal gait or spinal contour. There was no evidence of guarding or weakness. Motor and sensory examination was normal. Reflex examination revealed 1+ (hypoactive) at the abdominal, knee jerk, and ankle jerk; plantar flexion, bilaterally, was normal. The June 2008 examination report specifically and directly addresses DeLuca considerations in this matter. The examiner explained that there was pain on active and passive motion with flexion and after repetitive use, but there was no additional limitation of motion on repetitive use. There was no evidence of pain on motion or after repetitive use on extension, lateral flexion, or lateral rotation. X-rays revealed possible degenerative disc disease at L5-S1. The diagnosis was chronic mechanical low back pain. The examiner noted that repetitive bending, stooping, and lifting would increase the appellant's mechanical low back pain. It was also noted that he had limited ambulation without an assistive device but that such was due to his service-connected right ankle disability and not due to his low back disability. Based on the pertinent medical evidence of record, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235-5243, a higher rating in excess of 10 percent is not warranted. A 20 percent rating is not warranted since forward flexion is greater than 60 degrees and combined range of motion of the thoracolumbar spine was greater than 120 degrees. A 30 percent rating is not for application since that pertains to the cervical spine. A 40 percent rating is not warranted because there is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Here, forward flexion was no less than 70 degrees. Although the Veteran reported stiffness on June 2008 examination, a 50 percent rating is not warranted because there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is not for application because there is no evidence of unfavorable ankylosis of the entire spine. Further, the evidence does not show incapacitating episodes of intervertebral disc to warrant a higher rating under Diagnostic Code 5243 for rating intervertebral disc syndrome based on incapacitating episodes. On June 2008 examination, the Veteran did not report any incapacitating episodes, and he specifically denied any flare-ups of his low back disability. In addition, there is no evidence of record of any neurologic abnormalities to warrant a separate rating under another diagnostic code pursuant to note (1) of the general rating formula for disease and injuries of the spine. The June 2008 examination report shows no history of bowel or bladder abnormality. In addition, motor and sensory examination was normal. While there was evidence of hypoactive lower extremities on reflex examination, the examiner did not find there were any separate neurologic abnormalities. The Board acknowledges that the Veteran has chronic low back pain and thus, recognizes the application of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca. The Board also acknowledges his prior representative's argument that his pain on flexion began at 50 degrees, and thus, reflects an increased (20 percent) rating. However, higher compensation is not warranted under these provisions because there is no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree so as to warrant a rating in excess of the current 10 percent. The Court specifically addressed his representative's argument in Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), stating that pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. The pain must affect some aspect of the normal working movements of the body in order to constitute functional loss. As objectively found in the June 2008 VA examination, there was no additional limitation of motion on repetitive use. Hence, there is no basis under 38 C.F.R. §§ 4.40, 4.45, and DeLuca, so as warrant a rating in excess of 10 percent. Staged ratings are not for application since the Veteran's mechanical low back pain is adequately contemplated by the 10 percent rating during the entire time period in question. Should the severity of the mechanical low back pain increase in the future, the Veteran may always file a claim for an increased rating. The preponderance of the evidence is against the claim for evaluation in excess of 10 percent for mechanical low back pain. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). However, as discussed above, the evidentiary record in this case persuasively shows that the Veteran's range of motion findings and in the absence of ankylosis and incapacitating episodes and/or intervertebral disc syndrome, squarely match the type and degree of the examples set forth under the criteria for the 10 percent schedular rating. Consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not appropriate in such a case where the rating criteria reasonably describe the Veteran's disability level and symptomatology. See generally Thun v. Peak, 22 Vet. App. 111 (2008). The Board finds that referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted in this case. ORDER Entitlement to a rating in excess of 10 percent for mechanical low back pain is not warranted. To this extent, the appeal is denied. REMAND Although the Veteran was afforded a VA examination in June 2008 in connection with the right knee issue, the Board believes that further examination is necessary to fully assist the Veteran. First, after reviewing the medical opinion, the Board believes that it is highly doubtful that the opinion would withstand judicial scrutiny. The examiner's opinion does not adequately address all theories of entitlement. A disability will be service connected when that disability is "proximately due to or the result of a service-connected disease or injury . . ." 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). Therefore, a disability may be service connected on a secondary basis by demonstrating that the disability is either (1) "proximately due to or the result of [an already] service-connected disease or injury," or (2) aggravated by an already service-connected disease or injury, "whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition . . ." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Kyhn v. Shinseki, 24 Vet. App. 228, 240 (2011). The Court has indicated that "not due to," "not caused by," or "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b). See Allen, 7 Vet. App. at 449 ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'"). Significantly, the June 2008 VA examiner only opined that the Veteran's right knee disability was less likely as not "secondary to" his service-connected right ankle disability. Under governing caselaw, such opinion does not address the matter of aggravation. Second, in his January 2009 substantive appeal, the appellant appears to claim his right knee disability is secondary to his service-connected mechanical low back pain disability addressed above. It does not appear that this alleged secondary service connection theory of entitlement has been considered. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (multiple theories constitute the same claim if they "pertain to the same benefit for the same disability"). Although the Board regrets further delay in appellate review, the June 2008 opinion is inadequate and remedial action must be taken. The record also shows that the Veteran injured his right knee and underwent an operation in 2005. Records of treatment for the injury have not been associated with the claims folder. Upon Remand, the RO should contact the Veteran and ask that he submit the necessary consent forms for the appropriate medical providers, including Dr. Grober and Health South treatment facility. He should be informed that the consent forms must contain the specific private providers and their addresses, the dates of treatment, and the nature of the treatment received, i.e., the disability treated. Such missing private treatment records should then be requested and associated with the claims folder, if available. 38 C.F.R. § 3.159(c)(1). Finally, the last outpatient VA treatment records from the Daytona Beach VA Medical Center (VAMC) are dated in September 2008. Any ongoing VA medical treatment records regarding his right knee disability must be obtained upon Remand. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he complete and return the appropriate release forms so that VA can obtain any identified evidence from Dr. Grober and Health South treatment facility. The RO should attempt to obtain copies of all pertinent outstanding records. All identified private treatment records should be requested directly from the healthcare providers. At least one follow-up request must be made if a response is not received to the initial request for records. 2. The RO should attempt to obtain copies of all pertinent outstanding VA treatment records dated from September 2008 to the present from the appropriate VAMC. All information that is not duplicative of evidence already in the claims folder should be obtained. 3. After obtaining the above evidence, to the extent available, the RO should schedule the Veteran for a VA examination of his right knee. It is imperative that the claims folder be made available to and carefully reviewed by the examiner in connection with the examination. All necessary special studies or tests are to be accomplished. All current disabilities of the right knee should be clearly reported. As to each current right knee disability present, the examiner should offer responses to the following: (a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right knee disability was manifested during service or is otherwise related to service? (b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right knee disability is proximately due to or caused by his service-connected residual of a right ankle gunshot wound and/or his service-connected mechanical low back pain? (c) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's right knee disability has been aggravated by his service-connected residual of a right ankle gunshot wound and/or his service-connected mechanical low back pain? The term "aggravation" is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. A detailed rationale should be offered for all opinions. In the event the Veteran fails to report for such examination, the RO should nevertheless forward the claims folder to an appropriate VA examiner for review and responses to the above-requested questions. 4. In the interest of avoiding further remand, the RO should review the examination report and opinions to ensure that such is responsive to the above-requested questions. 5. After completing the requested actions, any additional notification and/or development deemed warranted, the RO should review the expanded claims folder and determine whether service connection is warranted for a right knee disability under both direct and secondary (including by aggravation) theories. If the benefit sought on appeal remains denied, the RO must furnish the Veteran and his attorney with an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs