Citation Nr: 1303199	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  07-00 349A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether there was clear and unmistakable error (CUE) in the December 2006 rating decision which reduced the disability rating for degenerative disc disease (DDD) of the lumbar spine from 30 percent to 20 percent (restoration).  

2.  Entitlement to service connection for bilateral tendonitis of the wrists and hands.

3.  Entitlement to service connection for plantar calcaneal spur, left foot, to include as secondary to service-connected DDD of the lumbar spine. 

4.  Entitlement to an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss.  

5.  Entitlement to a disability rating in excess of 20 percent for service-connected DDD of the lumbar spine.

6.  Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy, right lower extremity.
7.  Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy, left lower extremity.

8.  Entitlement to a total disability rating based on individual unemployability (TDIU).

9.  Entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Esquire


ATTORNEY FOR THE BOARD

M. Purdum, Counsel


INTRODUCTION

The Veteran served on active duty from November 1964 to October 1967. 

This matter comes before the Board of Veterans' Appeals (Board) from a number of rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs).  

A July 2004 rating decision of the RO in Cleveland, Ohio, granted an increased disability rating of 30 percent for the Veteran's service-connected DDD of the lumbar spine.  The July 2004 rating decision, in pertinent part, also granted service connection for bilateral hearing loss and peripheral neuropathy of the right and left lower extremities, and assigned each initial 10 percent disability ratings.  Further, the July 2004 rating decision denied entitlement to service connection for bilateral tendonitis of the wrists and hands and plantar calcaneal spur, left foot, to include as secondary to service-connected DDD of the lumbar spine.  

A July 2005 rating decision of the RO in Houston, Texas, denied entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant.  A September 2005 rating decision of the RO in Houston, Texas, denied entitlement to a TDIU; and a December 2006 rating decision, also of the RO in Houston, determined that there was CUE in the July 2004 rating decision that increased the disability rating assigned to the Veteran's service-connected DDD of the lumbar spine from 20 percent to 30 percent and reduced the disability rating to 20 percent.  

During the course of the appeal, in February 2005, the Veteran raised the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2011) for additional disability related to scars and pain as caused by VA dental surgery.  This additional claim has thus been raised by the record, but has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, since the Board does not have jurisdiction over this claim, it is referred to the RO for appropriate development and consideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

The issues of entitlement to:  an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss; a disability rating in excess of 20 percent for service-connected DDD of the lumbar spine; an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy, right lower extremity, and left lower extremity; service connection for bilateral tendonitis of the wrists and hands and plantar calcaneal spur, left foot, to include as secondary to service-connected DDD of the lumbar spine; a TDIU; and a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant, addressed in the REMAND portion of the decision below, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran alleges CUE in a December 2006 rating decision which reduced the disability rating assigned to his service-connected DDD of the lumbar spine from 30 percent to 20 percent.

2.  The assignment of a 30 percent evaluation for lumbar spine disability was inconsistent with the legal rating criteria.  The decision to reduce the evaluation was correct.


CONCLUSION OF LAW

The assignment of a 30 percent evaluation for lumbar spine disability was clearly and unmistakably erroneous.  Restoration of a 30 percent evaluation is not warranted.  38 C.F.R. § 3.105(a). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  However, the aforementioned notice and duty to assist provisions of the law and regulations are not applicable to the CUE claims.  See Livesay v. Principi, 15 Vet. App. 165, 179   (2001) (en banc); see also Huston v. Principi, 15 Vet. App. 395, 403 (2004).

CUE

In the interest of clarity, the Board deems it necessary to address the characterization and procedural posture of the pertinent matter on appeal.  By a July 2004 rating decision, the RO increased the disability rating assigned to the Veteran's service-connected DDD of the lumbar spine from 20 percent to 30 percent, effective December 30, 2003.  The Veteran filed an August 2004 Notice of Disagreement (NOD) to the July 2004 rating decision, seeking an even higher disability rating.  The RO issued a Statement of the Case (SOC) on the issue in November 2006 and the Veteran perfected his appeal by a January 2007 Substantive Appeal.  Thus, the issue of entitlement to an increased disability rating for service-connected DDD of the lumbar spine, the issue adjudicated by the July 2004 rating decision, is on appeal and properly before the Board.  

Prior to certification to the Board, the RO, in December 2006 issued a rating decision finding CUE in its July 2004 rating decision.  The RO determined that the July 2004 rating decision was clearly and unmistakably erroneous, as to the 30 percent disability rating assigned to the Veteran's service-connected DDD of the lumbar spine, and reduced the disability rating to 20 percent, effective December 30, 2003.  The Veteran, in February 2007, filed a NOD, asserting CUE, as to the December 2006 rating decision which reduced the disability rating assigned to his service-connected DDD of the lumbar spine from 30 percent to 20 percent.  The RO issued a SOC on the issue in August 2008, and the Veteran filed a Substantive Appeal, also in August 2008. 

The issue before the Board may be phrased in a variety of manners.  Ultimately, the issue is entitlement to restoration of a 30 percent evaluation for a lumbar spine disability.  In this case, the RO did not reduce the rating on the basis of improvement.  It reduced the rating on the basis of CUE in the prior RO decision.  38 C.F.R. § 3.105(a).  Therefore, the provisions of 38 C.F.R. § 3.344 are not for application.  Similarly, the decisions of the Court addressing improvement are not for application.

Generally, decisions of the AOJ are final.  38 C.F.R. § 3.104.  However, an exception to the finality doctrine occurs when CUE is found in a prior RO decision.  If the record establishes such CUE, the prior decision will be reversed or amended; a finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. §§ 3.104(a), 3.105(a).  See 38 C.F.R. § 3.400.

In determining whether a prior determination involves CUE, the Court has established a three-prong test.  The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be 'undebatable' and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

CUE is a very specific and rare kind of "error."  It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error.  Generally, a finding of CUE requires that the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied.  Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable.  Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14).  A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication.  Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994).

Here, the initial decision to assign a 30 percent evaluation for a lumbar disability was undebatably erroneous.  It is clear and unmistakable error to assign a 30 percent evaluation for a lumbar spine disability when the rating schedule does not contemplate a 30 percent evaluation.  In regard to the lumbar spine, the rating criteria include 20 and 40 percent evaluations.  There is no provision to assign a 30 percent evaluation for the lumbar spine.  Any attempt to grant a 30 percent evaluation for the lumbar spine by a Regional Office is outside the bounds of law and regulations.  In other words, the statutory/regulatory provisions extant at that time were not correctly applied.  Furthermore, reasonable minds could not differ.  Here, an error was made and that error was clearly and unmistakably erroneous.  The December 2006 rating decision corrected that prior error.  Therefore the 2006 decision, itself, did not contain clear an unmistakable error.

Because the 2006 decision to reduce the evaluation based upon clear and unmistakable error was correct, restoration is not warranted.


ORDER

Restoration of a 30 percent evaluation for lumbar spine disability is denied. 


REMAND

Additional development is needed prior to further disposition of the claims.

As a preliminary matter, ongoing treatment records should be obtained.  The most recent VA treatment records associated with the claims file, including those records contained in Virtual VA, are dated in October 2011.  There is no indication that the Veteran has ceased VA treatment.  38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).  Further, in June 2011, during VA treatment, the Veteran reported that he sought treatment from a private orthopedist.  The most recent private treatment records associated with the claims file are dated in May 2008.  On remand, the Veteran should be provided an opportunity to supplement the record with his updated private treatment records, or authorize VA to obtain such.

As to the Veteran's service connection claims, entitlement to service connection for bilateral tendonitis of the wrists and hands, and plantar calcaneal spur, left foot, to include as secondary to service-connected DDD of the lumbar spine, a remand for VA examinations is necessary.  The Veteran has not offered any lay statements as to the claimed etiology of his current bilateral tendonitis of the wrists and hands.  His service treatment records demonstrate that he lacerated his left index finger in April 1966.  The Board seeks an opinion as to the precise nature of any disability of the hands and wrists found present, and if any such disability is related to service, to include his in-service laceration to the left index finger.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

During an examination contracted by VA in May 2004, the Veteran was diagnosed with a left plantar calcaneal spur.  The examiner opined that such was causing pain in the left foot, but that such was not caused by the back condition.  The opinion was not supported by a reasoned analysis and lacks probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  Further, the examiner did not offer an opinion as to whether the Veteran's left plantar calcaneal spur was aggravated, as opposed to caused, by his service-connected DDD of the lumbar spine.  The Board thus seeks an adequate opinion.  Allen v. Brown, 7 Vet. App. 439, 448 (1995).

As to the Veteran's claims of entitlement to increased disability ratings for his service-connected bilateral hearing loss, DDD of the lumbar spine, and peripheral neuropathy of the bilateral lower extremities, he most recently underwent examinations contracted by VA, as to his bilateral hearing loss in July 2010, and DDD of the lumbar spine, and peripheral neuropathy of the bilateral lower extremities, in June 2010, more than two years prior.  While neither the Veteran nor his attorney have specifically asserted that such disabilities have worsened since the time of the 2010 examinations; in a November 2011 statement, the attorney asserted that the Veteran's service connected disabilities were severe and warranted a TDIU.  
On remand, reexamination is thus needed to determine whether these disabilities have worsened since June 2010 and July 2010.  See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).  See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991).

As to the Veteran's claim of entitlement to a TDIU, as discussed briefly above, in her November 2011 statement, the Veteran's attorney asserted that the Veteran suffered from severe service-connected disabilities, including a lumbar spine disability, bilateral peripheral neuropathy of the lower extremities, arthritis of the right foot, and bilateral hearing loss and tinnitus; and the combined effect of which precluded him from obtaining or maintaining substantial gainful employment.  She asserted that the Veteran was entitled to a thorough and contemporaneous examination to determine the manner in which his service-connected disabilities prevent him from such employment.  

A TDIU may be assigned where the schedular evaluation is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012).

The Veteran is currently, as of the most recent rating decision of record, dated in December 2006, service-connected for DDD of the lumbar spine, rated as 20 percent disabling; degenerative joint disease of the right foot, bilateral hearing loss, tinnitus, and peripheral neuropathy of the right lower extremity and left lower extremity, each rated as 10 percent disabling, as well as laceration, healed, base of left index finger, rated as noncompensably disabling; with a combined disability rating of 60 percent.  As such, he is not in receipt of a 40 percent rating for a single disability with sufficient additional disability to bring the combined rating to at least 70 percent.  Therefore, the Veteran does not currently meet the threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). 

If a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis.  It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Thus, at the RO level, rating boards are to submit to the Director, Compensation and Pension (C&P) Service, for extra-schedular consideration, all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  38 C.F.R. § 4.16(b) (2012). 

While examiners contracted by VA in May 2004, June 2010, and July 2010, have provided clinical assessments of the functional impairment, and in some cases, the effect upon which the disability evaluated had on the Veteran's ability to work, VA has not yet sought an opinion as to whether the Veteran's service-connected disabilities, either singularly or jointly, render him unable to secure and follow substantially gainful employment.  VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disabilities has on his ability to work.  See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for a TDIU, that VA has a duty to obtain medical opinions as to employability).  On remand, the Veteran should be afforded such an examination.

It is significant, however, that the Veteran's service connection and increased disability rating claims are pending and may affect his eligibility for a TDIU under 38 C.F.R. § 4.16(a).  The Board thus finds that the claim of entitlement to a TDIU is inextricably intertwined with the claims which are being remanded by the Board. The Veteran is currently ineligible for a TDIU on a schedular basis, as discussed above.  Given that the issues for consideration on remand could result in eligibility for a TDIU on a schedular basis, the claim for a TDIU is inextricably intertwined with the claims being remanded herein, and that the claims should be considered together.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). 

As to the Veteran's claim of entitlement to a certificate of eligibility for assistance in acquiring specially adapted housing or a special home adaptation grant, it appears that the Veteran asserts entitlement to such on the basis of loss of use of his hands.  Service connection for bilateral tendonitis of the wrists and hands is not yet service-connected.  Also, the current severity of his service-connected lower extremities is not yet determined.  The regulations governing assistance in acquiring specially adapted housing or a special home adaptation grant contemplate, in pertinent part, loss of use of the hands and/or lower extremities.  38 U.S.C.A. § 2101 (West 2002); 38 C.F.R. § 3.809 (2012).  Thus, this claim is also intertwined with the pending service connection and increased rating claims.  Parker, 7 Vet. App. 116; Harris, 2 Vet. App. 180, at 183.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file the Veteran's treatment records maintained by the VA Medical Center (VAMC) in Houston, Texas, dated from October 2011 to the present.  If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified.  See 38 C.F.R. § 3.159(c)(2), (c)(3) and (e)(1). 

2.  Contact the Veteran and advise him that the most recent private treatment records associated with the claims file are dated in May 2008.  Provide him VA Forms 21-4142 Authorization and Consent to Release Information to the VA, and obtain and associate with the claims file any identified and authorized private treatment records.  Advise the Veteran that he may submit such records if he so chooses.  If a negative response is received from any treatment provider, the claims file should be properly documented in this regard.  Any and all efforts to secure such records must be properly documented in the claims file. 

3.  Subsequent to the above development, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any disability of the wrists and hands.  The examiner is asked to diagnose any disability of the wrist and hands found present and opine as to whether it is as likely as not that any such disability is related to or dates back to service, including the Veteran's April 1966 laceration of the left index finger. 

To the extent the Veteran offers any supporting lay statements during the examination as to the experiencing of bilateral hand and/or wrist symptoms or other disability while in service, or since, the examiner must remain mindful that the Veteran may be competent to report having experienced such symptoms since this may require only his personal knowledge, not medical expertise, as it may come to him through his senses.  The examiner therefore must specifically address any of the Veteran's claims that his current bilateral tendonitis of the wrists and hands dates back to his service, including his April 1966 laceration of the left index.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007). 

4.  Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his plantar calcaneal spur, left foot.  The examiner is asked to opine as to whether it is as likely as not that the Veteran's plantar calcaneal spur, left foot, is either caused by his lumbar spine disability or is being made permanently worse, chronically aggravated, by his lumbar spine disability. 

To the extent the Veteran offers any supporting lay statements during the examination as to the experiencing of left foot symptoms or other disability, the examiner must remain mindful that the Veteran may be competent to report having experienced such symptoms since this may require only his personal knowledge, not medical expertise, as it may come to him through his senses.  The examiner therefore must specifically address any of the Veteran's claims that his current plantar calcaneal spur, left foot, is secondary to his service-connected lumbar spine disability.  Dalton, 21 Vet. App. 23. 

5.  Schedule the Veteran for a VA examination with an appropriate examiner to reassess the severity of his bilateral hearing loss.  All necessary diagnostic testing and evaluation should be performed.  The examiner must assess the current nature, extent, and severity of this disability, and, in so doing, must fully describe the consequent effects on the Veteran's daily functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  
6.  Schedule the Veteran for a VA examination with an appropriate examiner to reassess the severity of his DDD of the lumbar spine and peripheral neuropathy of the bilateral lower extremities.  All necessary diagnostic testing and evaluation should be performed.  The examiner must assess the current nature, extent, and severity of these disabilities, and, in so doing, must fully describe the extent to which motion is additionally limited by pain.  See 38 C.F.R. § 4.71a, DCs 5010-5237 (2012); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011).  

The examiner also must specifically comment on whether the Veteran has favorable or unfavorable ankylosis of his entire thoracolumbar spine or unfavorable ankylosis of his entire spine when also considering the adjacent cervical segment.  See 38 C.F.R. § 4.71a, DC 5242.  The examiner must specifically indicate whether there have been incapacitating episodes during the past 12 months and, if there have been, the frequency and duration of them.  An incapacitating episode is defined as a period of acute signs and symptoms due to disc disease (IVDS) requiring bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, DC 5243, including Note (1).

The examiner must also specifically comment upon whether the Veteran's peripheral neuropathy of the bilateral lower extremities is best described as (a) complete paralysis, with foot dangle and drop, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost; or (b) incomplete paralysis, and if so, whether such is mild, moderate, moderately severe, or severe with marked muscular atrophy.  

7.  Subsequent to the above development, schedule the Veteran for a VA examination with an appropriate examiner in order to determine the impact his service-connected disabilities have on his employability.  The examiner should be provided a list of the Veteran's service-connected disabilities, subsequent to adjudication directed by this remand of the claims of entitlement to service connection for bilateral tendonitis of the wrists and hands, and plantar calcaneal spur, left foot, to include as secondary to service-connected DDD of the lumbar spine.  

The examiner should opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, to include any side effects of medications that he must take for such disabilities, either singularly or jointly, render him unable to secure and follow substantially gainful employment.  The examiner must specifically take into account the Veteran's level of education, employment history, and vocational attainment or special training, but not his age or occupational impairment attributable to disabilities that are not service-connected.

As to each of the examinations, the examiners should set forth complete rationales for all findings and conclusions in legible reports.  The examiners must discuss the rationales of the opinions, whether favorable or unfavorable, if necessary citing to specific evidence in the file.
The claims file, including a copy of this remand, must be made available to the examiners for review of the pertinent medical and other history.

The term "as likely as not" (at least 50-percent probability) does not mean merely within the realm of medical possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 

If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.

The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination.

8.  Subsequent to the VA examinations, review the examination reports to ensure complete compliance with the directives of this remand.  If any report is deficient in any manner, corrective procedures must be implemented. 

9.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated.  If it is determined that the Veteran is unemployable by reason of his service-connected disabilities, but still fails to meet the percentage standards, the claim shall be submitted to the Director of C&P Service for extraschedular consideration under 38 C.F.R. § 4.16(b).  If the claims remain denied, the Veteran and his attorney should be issued a Supplemental SOC. An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the 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).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs