Citation Nr: 1301217 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 12-06 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a skin disorder. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for chronic fatigue syndrome (CFS), to include as due to an undiagnosed illness and as secondary to fibromyalgia. 3. Entitlement to service connection for fibromyalgia, claimed as muscle aches and joint aches, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a sleep disorder, claimed as insomnia/sleep apnea, to include as due to an undiagnosed illness and as secondary to service-connected post traumatic stress disorder (PTSD). 5. Entitlement to service connection for gastrointestinal reflux disease (GERD), claimed as chest pains, to include as due to an undiagnosed illness. 6. Entitlement to an initial disability rating in excess of 10 percent for service-connected irritable bowel syndrome (IBS). 7. Entitlement to an initial disability rating in excess of 20 percent for service-connected anal fissure. 8. Entitlement to an initial disability rating in excess of 10 percent for service-connected headaches. REPRESENTATION Veteran represented by: David L. Huffman, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Heneks, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 1992. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In December 2011, the Veteran presented testimony at a hearing conducted at the RO before a Decision Review Officer (DRO). In July 2012, the Veteran presented testimony at a personal hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ) who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. Transcripts of these personal hearings are in the Veteran's claims folder. Previously, in January 2005, a different VLJ held a hearing on the issue of entitlement to service connection for degenerative disc disease of the lumbosacral spine. This issue was remanded for further development in March 2005 and June 2009. As the undersigned in these matters has not taken testimony on the issue of service connection for degenerative disc disease of the lumbosacral spine, this issue will be the subject of a separate decision that will be issued simultaneously with the matters reflected above. The record reflects that the Veteran submitted additional evidence that has not been reviewed by the RO. However, in an August 2012 statement, his accredited representative related that he was waiving the right to have this additional evidence reviewed by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304. The issues of entitlement to service connection for a sleep disorder, GERD, CHRONIC FATIGUE SYNDROME, and a skin disorder, as well as entitlement to increased ratings for an anal fissure and headaches 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 Veteran served in Southwest Asia from August 31, 1990, to March 31, 1991. 2. Fibromyalgia developed after the Veteran's service in the Persian Gulf and became manifest to a degree of 10 percent disabling prior to 2016. 3. The Veteran's service connected irritable bowel syndrome is manifested by severe diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. 4. A March 2005 Board decision previously considered and denied service connection for a skin disorder and chronic fatigue syndrome, and the Veteran did not file a timely notice of appeal with the United States Court of Appeals for Veterans Claims (Court). 5. The evidence received since the March 2005 Board decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the claim for service connection for a skin disorder. 6. The evidence received since the March 2005 Board decision, by itself, or in conjunction with previously considered evidence, does relate to an unestablished fact necessary to substantiate the claim for service connection for chronic fatigue syndrome. CONCLUSIONS OF LAW 1. Fibromyalgia, claimed as muscle and joint aches, was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1117 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2007). 2. The criteria for an initial 30 percent rating for irritable bowel syndrome, but no higher, have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.114, Diagnostic Code 7319 (2012). 3. The Board's March 2005 decision, which denied entitlement to service connection for a skin disorder and chronic fatigue syndrome, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. §§ 20.1100, 20.1105 (2012). 4. The evidence received subsequent to the Board's March 2005 decision is new and material, and the claim for service connection for a skin disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012). 5. The evidence received subsequent to the Board's March 2005 decision is new and material, and the claim for service connection for chronic fatigue syndrome is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. For an increased compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. 37. However, the Federal Circuit recently issued a decision vacating the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Significantly, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." Similarly, "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the decision below, the Board has granted the Veteran's claim for fibromyalgia and reopened his claims for service connection for a skin disorder and chronic fatigue syndrome; therefore, regardless of whether the requirements have been met in this case, no harm or prejudice to the appellant has resulted. Therefore, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran with respect to these issues was at worst harmless error in that it did not affect the essential fairness of the adjudication. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. With respect to the fibromyalgia claim, the Veteran is challenging the initial evaluation assigned following the grant of service connection for irritable bowel syndrome. In this regard, once service connection is granted and an initial disability rating and effective date have been assigned, the claim is substantiated, and additional 5103(a) notice is not required. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because the notice that was provided to the Veteran in November 2009 before service connection was granted in March 2010 was legally sufficient, VA's duty to notify with regard to this claims has been satisfied. In addition, the duty to assist the Veteran has also been satisfied in this case. All available service treatment records, VA medical records, and all relevant private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. The Veteran has not identified any outstanding records that are pertinent to the claims being decided herein. The Veteran was also afforded VA examinations in November 2009 and January 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record, and fully address the rating criteria that is relevant to rating the Veteran's irritable bowel syndrome. In particular, the examinations address the frequency and severity of the Veteran's irritable bowel syndrome. Moreover, the Veteran has reported the impact of his disability on his daily life and ability to work. Thus, there is adequate medical evidence of record to make a determination in this case. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. LAW AND ANALYSIS I. Service Connection - Fibromyalgia Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Under the provisions of specific legislation enacted to assist veterans of the Persian Gulf War, service connection may be established for a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). The Veteran's DD Form 214 reflects that he served in the Southwest Asia theater of operations from August 31, 1990, to March 31, 1991. The term "qualifying chronic disability" means a chronic disability resulting from an undiagnosed illness; a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined as a cluster of signs or symptoms; or, any diagnosed illness that VA determines in regulations warrants a presumption of service-connection. 38 U.S.C.A. § 1117(a)(2). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 U.S.C.A. § 1117(g). Among the requirements for service connection for a disability due to an undiagnosed illness is that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis in the particular veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). As a preliminary matter, the Board concludes that the claims originally characterized as joint aches due to an undiagnosed illness, muscle aches due to an undiagnosed illness, and fibromyalgia (three separate claims) should be considered as one claim. Further, the Board concludes that this claim should be considered as an original claim as opposed to a claim to reopen. A brief discussion of the history of this claim follows. A June 2002 rating decision denied service connection for joint pain and twitches of the muscles due to service in the Gulf. The claim was denied because the evidence did not indicate a chronic condition for which there is no clearly defined diagnosis manifested to a degree of 10 percent or more. The Veteran appealed the decision to the Board, which denied the claim in March 2005. The Board observed that a May 2001 VA examination found that the Veteran's joint pain and muscle twitching was secondary to depression. The Board determined that there was no chronic disability manifested by joint pain or muscle twitching that was etiologically linked to an undiagnosed illness. Additionally, the Board concluded that there was no competent evidence establishing a chronic disability manifested by joint pain and muscle twitching as the result of a disease or injury in service. The Veteran was notified of the denial that same month. That decision is final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1100. In September 2009, the Veteran filed claims for joint aches, muscle aches, and fibromyalgia. As discussed in Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996), a newly diagnosed disorder cannot be the same claim when it has not been previously considered. A claim that could not have been adjudicated because all or a significant element of that claim had not been diagnosed is a new claim. Id. at 402. In Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the Federal Circuit discussed when two claims should be considered to have the same factual basis for purposes of 38 U.S.C.A. § 7104(b) and concluded that the factual basis is the Veteran's underlying disease or injury, rather than the symptoms of that disease or injury. The Federal Circuit elaborated on its prior decision in Ephraim and restated the holding that claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims. As noted above, at the time of the March 2005 denial of the claims for joint pain and muscle twitching, it appears that these symptoms were seen as manifestations of depression. During the course of his current claims for joint aches and muscle aches, it appears that the Veteran is seeking service connection for the underlying disability of fibromyalgia, which he believes manifests in joint aches, muscle aches, and body aches throughout his body. Importantly, during his hearing, the Veteran referred to body aches, joint aches, muscle aches all throughout his body as fibromyalgia. July 2012 Hearing Transcript pp. 13-14. As will be discussed below, the symptoms of body aches, joint aches, and muscle aches have been attributed to the diagnosis of fibromyalgia, a new underlying disability that was not diagnosed at the time of the prior final denial of the claim for service connection for joint pain and twitches of the muscles due to service in the Gulf. Accordingly, the claims for muscle aches, joint aches, and fibromyalgia will be considered as part of one claim and will be considered as a new claim as opposed to a claim to reopen. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Board will now address the issue on the merits. In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for fibromyalgia. The Veteran contends that he has body aches, joint aches, and muscle aches all throughout his body that have been diagnosed as fibromyalgia. July 2012 Hearing Transcript pp. 13-14, 31. He asserts that the body aches began after he returned from the Gulf War. December 2011 DRO hearing Transcript p. 8. Approximately two years after his separation from service, the Veteran underwent a Persian Gulf Registry VA examination in November 1994 during which he complained of tenderness in all his joints, but no tenderness over the muscle areas. The Veteran had another Gulf War VA examination in May 2001 at which time he complained of joint pain in practically all his joints, as well as constant joint and muscle soreness. Following an examination, the diagnosis was fatigue, sleep disturbance, joint pain, and muscle twitching secondary to depression. There was no evidence of an undiagnosed illness. During his November 2009 Gulf War VA examination, the Veteran complained of painful fingertips and joints and reported that his knees and elbows ache. He indicated that these symptoms began in 1991. He also added that all of his muscles were sore. Upon examination, there were no findings of muscle abnormalities, objective joint abnormalities, or inflammatory arthritis. The examiner did not find any medical documentation regarding fibromyalgia. The examiner summarized that the Veteran had a chronic strain of his bilateral knees and elbows and subjective complaints of pain that were not consistent with fibromyalgia. The examiner referenced the Veteran's history of post-service multiple episodes of trauma. However, later in the examination report, the examiner provided a diagnosis of bilateral knee and elbow chronic strain, and the problem associated with that diagnosis was fibromyalgia. The Veteran was provided another VA examination in January 2012 during which his elbows and knees were evaluated. He was diagnosed with olecranon spurs and lateral meniscus tear in the right knee. Both diagnoses were determined to be less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Most recently, in February 2012, the Veteran was evaluated at the VA rheumatology department for his complaints of multiple myalgias and for fibromyalgia. He stated that his complaints began during his time in service around 1993. His complaints included diffuse widespread whole body pain; diffuse myalgias primarily through the forearms, calves, and thighs; daily migraine headaches; nausea; and, sleep disturbances. The Veteran had a trial of Lyrica with marked improvement in his chronic pain complaints. Upon physical examination, he was diffusely tender to palpation in multiple classic and nonclassic tender points. The assessment was that the Veteran had a many year history of whole body pain, daily fatigue, nonrestorative sleep, and multiple somatic complaints, including allodynia, daily headaches, and irritable bowel syndrome (IBS) symptoms consistent with a diagnosis of fibromyalgia. The Veteran had nothing in his history, physical examination, or laboratory results to suggest an autoimmune process. The strong relationship between PTSD and fibromyalgia was discussed with the Veteran, and the Veteran was advised that he must receive treatment for his PTSD and depression, as fibromyalgia is much worse if these conditions are untreated. In summary, the evidence of record reflects that there is a current diagnosis of fibromyalgia, which is a qualifying chronic disability that warrants a presumption of service connection. There is also evidence that the Veteran served in the Southwest Asia theater of operations and that his fibromyalgia has manifested to a degree of 10 percent or more. 38 C.F.R. §§ 3.317(a)(1)(i), (2)(i)(B)(2). Accordingly, service connection for fibromyalgia, as claimed as joint and muscle aches, is granted. II. New and Material In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). See also Duran v. Brown, 7 Vet. App. 216, 220 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court in Shade further held that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). A. Skin Disorder A March 2005 Board decision denied service connection for a skin rash because there was no competent evidence that established that the Veteran had a chronic disability manifested by a skin rash that was related to an undiagnosed illness. The Veteran was notified of the denial, but he did not file a timely notice of appeal (NOA) with the United States Court of Appeals for Veterans Claims (Court). Because the Veteran did not appeal, the March 2005 Board is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1100. In September 2009, the Veteran filed a claim to reopen. As noted, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). With these considerations, the Board has reviewed the record, with particular attention to the additional evidence received since the final Board decision. After reviewing the record, the Board finds that the additional evidence received since the final decision is new and material within the meaning of 38 C.F.R. § 3.156(a). The evidence associated with the Veteran's claims file subsequent to the March 2005 Board decision includes, but is not limited to, VA and private treatment records, to include a November 2007 VA treatment entry indicating that the Veteran has had a rash on his scalp since serving in the Gulf and January 2008 and 2012 VA treatment records reflecting that he has been prescribed hydrocortisone cream for his skin. As noted, the Veteran's claim was previously denied because there was no competent evidence of a chronic disability. In particular, the evidence now reflects that the Veteran is seeking treatment for a skin rash. This evidence is certainly new in that it was not previously of record. Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim. Further, as its credibility is presumed, the new evidence raises a reasonable possibility of substantiating the claim. Justus, 3 Vet. App. at 513. The Court has held that submitting new and material evidence as to one element of service connection is sufficient to reopen the claim without also having to provide evidence with respect to other unestablished elements. Shade v. Shinseki, 24 Vet. App. 110 (2010). For these reasons, the Board finds that the additional evidence received since March 2005 warrants a reopening of the Veteran's claim of service connection for a skin disorder, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the appellant's claim can be addressed. B. Chronic Fatigue Syndrome A March 2005 Board decision denied service connection for fatigue because there was no competent evidence that established that the Veteran had a chronic disability. The Veteran was informed of that decision and of his appellate rights, but he did not appeal the decision to the Court. Therefore, the March 2005 Board decision is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1100. The Veteran filed a claim to reopen in September 2009. After reviewing the record, the Board finds that the additional evidence received since the final decision is new and material within the meaning of 38 C.F.R. § 3.156(a). In particular, during his hearing, the Veteran testified that he believed he had chronic fatigue syndrome related to his recent diagnosis of fibromyalgia. July 2012 Hearing Transcript p. 31. The Board finds that, in light of the grant of service connection for fibromyalgia and the Veteran's competent testimony that he experiences fatigue along with his joint and muscle aches, there is new evidence of record that raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For these reasons, the Board finds that the additional evidence received since March 2005 warrants a reopening of the Veteran's claim of service connection for chronic fatigue syndrome, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the appellant's claim can be addressed. III. Increased Rating - Irritable Bowel Syndrome Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In a March 2010 rating decision, the RO granted service connection for irritable bowel syndrome with spastic colon and assigned a 10 percent rating effective from September 30, 2009. The Veteran was assigned a rating under Diagnostic Code (DC) 8873-7319. Under Diagnostic Code 7319, a 10 percent (moderate) rating is assigned for irritable colon syndrome (IBS) (spastic colitis, mucous solitis, etc.) for frequent episodes of bowel disturbance with abdominal distress. A 30 percent (severe) rating is assigned when there is diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, DC 7319. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 30 percent rating for his service-connected irritable bowel syndrome. During his November 2009 Gulf War VA examination, the Veteran reported that 75 percent of the time his bowel movements are painful. There was a history of diarrhea, constipation, indigestion, heartburn, and regurgitation. There was no history of fecal incontinence. His symptoms were described as severe, and the Veteran reported that once a week he experienced a burning sensation in the right lower quadrant of the abdomen. The examiner noted that there were no effects of the problem on the Veteran's usual daily activities and that the Veteran was not employed, so there was no effect on his usual occupation. In a July 9, 2010, VA treatment entry, the Veteran reported having bowel movements four to five times per day, rectal bleeding, and stomach pain. In October 2010, he reported having diarrhea three to four times per day, rectal bleeding, lower abdominal pain, nausea, and rare vomiting. The Veteran testified during his December 2011 DRO hearing that he had diarrhea or constipation every day, nausea all the time, stomach cramps, and a sharp pain if he cannot reach the bathroom. He indicated that his irritable bowel syndrome was worse since his November 2009 VA examination. The Veteran's irritable bowel syndrome was reevaluated during a January 2012 VA examination. The Veteran reported that, since his last VA examination, he experienced diarrhea all of the time, rectal bleeding, accidents while out in public, nausea before diarrhea that is painful, and painful constipation. The Veteran was noted to have frequent episodes of bowel disturbance with abdominal distress. His irritable bowel syndrome had an impact on his ability to work in that he reported having to go home on an emergency basis sometimes when he was working. The examiner observed that there was no impact on the Veteran's ability to perform light physical or sedentary employment provided that bathroom breaks were allowed. The Veteran was not working due to his receipt of Social Security Administration (SSA) disability in 2007 for his PTSD. The Veteran, via his representative asserted, at his July 2012 hearing that he was entitled to a 30 percent rating as of the July 9, 2010 treatment entry. July 2012 Hearing Transcript p. 3. Based on the foregoing, the Board concludes that the Veteran's irritable bowel syndrome more nearly approximates the criteria for a 30 percent rating, but no higher. The Board also observes that 30 percent is the highest rating possible under Diagnostic Code 7319. Nevertheless, the Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Another potentially applicable diagnostic code is Diagnostic Code 7332 for impairment of sphincter control, as the Veteran is service-connected for irritable bowel syndrome with spastic colon. A 60 percent rating is appropriate where there is extensive leakage and fairly frequent involuntary bowel movements. Complete loss of sphincter control warrants a 100 percent rating. See 38 C.F.R. § 4.114, DC 7332. However, extensive leakage and fairly frequent involuntary bowel movements have not been shown in this case. Accordingly, entitlement to a rating of 30 percent rating, but no higher, is granted for the Veteran's service-connected irritable bowel syndrome with spastic colon. 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7319. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's irritable bowel syndrome is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria to evaluate his irritable bowel syndrome reasonably describe the Veteran's disability level and symptomatology and he has not argued to the contrary. As noted above, the frequency and severity of his irritable bowel syndrome has been addressed; therefore, his disability level is contemplated by the rating schedule and the assigned schedular evaluation is adequate. Moreover, there are higher ratings available under another diagnostic code, but the Veteran does not have such symptomatology. For these reasons, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Subject to the provision governing the award of monetary benefits, service connection for fibromyalgia, claimed as muscle aches and joint aches, is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a skin disorder is reopened, and to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for chronic fatigue syndrome is reopened, and to this extent only, the appeal is granted. Subject to the provision governing the award of monetary benefits, an initial 30 percent evaluation for irritable bowel syndrome is granted. REMAND Skin disorder The Veteran contends that he has a skin rash that he relates to his service during the Gulf War. During his hearing before the undersigned, he testified that his skin rash comes and goes and that he breaks out all over his body. July 2012 Hearing Transcript p. 4. The Board observes that, during a September 2000 VA examination for PTSD, the Veteran reported that he has had rashes since serving in the Persian Gulf. During a May 2001 Gulf War VA examination, the Veteran also noted that he had a skin rash that comes and goes, which was diagnosed as eczematoid dermatitis. More recently, the Veteran underwent a November 2009 Gulf War VA examination, which revealed no active rash. However, in November 2007 and January 2008 VA treatment entries, it was noted that the Veteran had been prescribed hydrocortisone cream for a scalp rash, which he had experienced since the Gulf War. When the Veteran was examined in January 2012, the VA examiner did not find an active skin disorder. The Board finds that because there is evidence that the Veteran has a current skin disorder that is intermittently active, a remand for a new VA examination during a flare-up of his skin disorder, if possible, is required. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet App 303 (2007) (holding that when VA undertakes to provide the Veteran with an examination, it must insure that the examination is adequate); Ardison v. Brown, 6 Vet. App. 405 (1994) (holding that when evidence reflects that a disability has a history of remission and recurrence, the duty to assist requires that any examination be given during an active stage of the condition). Chronic Fatigue Syndrome The evidence of record indicates that the Veteran had a December 1994 VA assessment of chronic fatigue syndrome. During a May 2001 Gulf War VA examination, he asserted that he had chronic fatigue since the Gulf War, which the examiner related to his depression. Although there was no mention of fatigue at the time of his November 2009 and January 2012 VA examinations, the Veteran testified that he is constantly tired and that he believes he has chronic fatigue syndrome that is related to his now service-connected fibromyalgia. July 2012 Hearing Transcript pp. 11, 31. The Board concludes that in light of the recent grant of service connection for fibromyalgia, evidence that the Veteran had an assessment of chronic fatigue syndrome, and the indications that the he might have chronic fatigue related to a service-connected disorder, a remand is necessary for a VA examination as well as notice of how to substantiate his claim on a secondary basis. Sleep disorder Although the Veteran was denied service connection for a sleep disturbance in the March 2005 Board decision, the Board concludes that the claims for insomnia and sleep apnea should be considered as one new claim, as opposed to a claim to reopen. In this regard, at the time of the prior final denial, there was no diagnosis of sleep apnea, which was first diagnosed in a September 2010 VA treatment entry. There is evidence of record indicating that the Veteran has a sleep disorder secondary to his service-connected PTSD and a separate diagnosis of sleep apnea. In Boggs, the Federal Circuit restated that claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims. 520 F.3d 1330. The Board, however, is not permitted to make a medical determination based on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Although the Board could phrase the issues as two separate claims, one for service connection for sleep apnea and the other as a claim to reopen the previous denial of service connection for a sleep disorder, other than sleep apnea, as the Board is remanding for further development, the clearest course of action is to address the claim as one and ask an examiner to define what, if any, sleep related disorders the Veteran has. Accordingly, as this option does not require the receipt of new and material evidence, there is no prejudice to the Veteran. Thus, the Board will address the claim as single claim for a sleep disorder. The evidence of record reflects that a September 2000 PTSD VA examiner related the Veteran's problems with sleep to his PTSD. During his May 2001 VA examination, the Veteran's sleep problems were related to his depression. As previously stated, a September 2010 VA treatment entry indicated that the Veteran had severe sleep apnea. The January 2012 PTSD VA examiner again related the Veteran's chronic sleep impairment to his PTSD. The Board concludes that the Veteran is entitled to a VA examination that specifically addresses his claim for a sleep disorder, to include his claim that he has a sleep disorder secondary to his Gulf War service. The Board finds it significant that the Veteran has several diagnoses of record that could be contributing to his problems with sleep, to include PTSD, fibromyalgia, sleep apnea, and CHRONIC FATIGUE SYNDROME. Thus, on remand, the Veteran should be evaluated by the appropriate medical personnel to ascertain his current diagnosis or diagnoses. He should also be provided with notice as to how to substantiate a claim on a secondary basis. GERD The Veteran contends that he has experienced chest pains, which have been diagnosed as acid reflux, since serving in the Gulf War. He believes his symptomatology started because he had to eat quickly while serving in the Gulf, which led to an upset stomach. In a September 2000 Vet Center treatment record, the Veteran complained of an upset stomach, and during a November 2009 Gulf War VA examination, he was diagnosed with GERD. The Board concludes that a remand is necessary for a VA examination. The Veteran's contentions that he has experienced chest pains/acid reflex since the Gulf War are competent. Moreover, he has a current diagnosis of GERD. Under the circumstances presented here, a remand is necessary for a VA examination and opinion. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Anal Fissure and Headaches The Board notes that the Veteran was granted service connection for anal fissures and headaches in a February 2012 RO decision. The Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran filed a notice of disagreement (NOD) with regard to these issues in August 2012. When there has been an adjudication of a claim and a notice of disagreement (NOD) as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26. Thus, a remand for issuance of an SOC on these issues is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran with a notice letter that explains how to substantiate his claims for service connection for chronic fatigue syndrome and a sleep disorder on a secondary basis. 2. To the extent possible, schedule the Veteran for a VA examination to evaluate his claim for service connection for a skin disorder during an active flare-up. A copy of the claims file and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: (a) State whether any of the Veteran's symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness. (b) If any of the Veteran's symptoms are attributable to a known clinical diagnosis/diagnoses, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any current skin-related disability is causally or etiologically related to his active military service (August 1989 to August 1992) as opposed to its being more likely due to some other factor or factors. (c) If the Veteran's symptoms cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to evaluate his claim for service connection for chronic fatigue syndrome. A copy of the claims file and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: (a) State whether any of the Veteran's symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness, including a medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome. (b) If any of the Veteran's symptoms are attributable to a known clinical diagnosis/diagnoses, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any current disability manifested by chronic fatigue is causally or etiologically related to his active military service (August 1989 to August 1992) as opposed to its being more likely due to some other factor or factors. (c) If the Veteran's symptoms cannot be ascribed to any known clinical diagnosis (or if diagnosed as a medically unexplained chronic multisymptom illness), specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (d) If the symptoms are attributed to a known clinical diagnosis, but are not found to be related directly to service, the examiner should opine whether it is at least as likely as not that the disorder was caused or aggravated by one of the Veteran's service-connected disorders, specifically fibromyalgia and PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for a VA examination to evaluate his claim for service connection for a sleep disorder, to include sleep apnea. A copy of the claims file and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: (a) State whether any of the Veteran's symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness. (b) If any of the Veteran's symptoms are attributable to a known clinical diagnosis/diagnoses, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any current sleep disorder, to include sleep apnea, is causally or etiologically related to his active military service (August 1989 to August 1992) as opposed to its being more likely due to some other factor or factors. (c) If the Veteran's symptoms cannot be ascribed to any known clinical diagnosis (or if diagnosed as a medically unexplained chronic multisymptom illness), specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (d) If the symptoms are attributed to a known clinical diagnosis, but are not found to be related directly to service, the examiner should opine whether it is at least as likely as not that the sleep disorder was caused or aggravated by one of the Veteran's service-connected disorders, specifically chronic fatigue syndrome, fibromyalgia, or PTSD. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule the Veteran for a VA examination to evaluate his claim for service connection for GERD. A copy of the claims file and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items: (a) State whether any of the Veteran's symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness including a medically unexplained chronic multisymptom illness, such as functional gastrointestinal disorder. (b) If any of the Veteran's symptoms are attributable to a known clinical diagnosis/diagnoses, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent likelihood or higher) that any current gastrointestinal disability is causally or etiologically related to his active military service (August 1989 to August 1992) as opposed to its being more likely due to some other factor or factors. (c) If the Veteran's symptoms cannot be ascribed to any known clinical diagnosis (or if diagnosed as a medically unexplained chronic multisymptom illness), specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. An SOC, containing all applicable laws and regulations, on the issues of entitlement to increased ratings for service-connected anal fissures and headaches must be issued. Manlincon, 12 Vet. App. 238. The Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran's appeal as to these issues is perfected within the applicable time period, then such should return to the Board for appellate review. 7. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). These claims 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). ______________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs