Citation Nr: 1303944 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-44 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial compensable rating for residuals of fracture, head of first metacarpal thumb, right hand (previously rated as right hand fracture). 2. Entitlement to an initial compensable rating for residuals of left great toe fracture. 3. Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 (2012). 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to August 1966. These matters came to the Board of Veterans' Appeals (Board) from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2012; the transcript is of record. These matters were remanded in May 2012. At the Board hearing, the Veteran indicated that he was also seeking service connection for tinnitus. However, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDINGS OF FACT 1. The Veteran's residuals of fracture, head of first metacarpal right thumb, is manifested by limitation of motion of the thumb with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 2. The Veteran's residuals of left great toe fracture is manifested by subjective complaints of pain, swelling, x-ray findings of degenerative arthritis, and pain on motion. 3. As a result of this decision, compensable evaluations are in effect throughout the pendency of this appeal, so the claim for a 10 percent evaluation under 38 C.F.R. § 3.324 is moot. CONCLUSION OF LAWS 1. The criteria for a schedular rating of 10 percent, but no higher, for residuals of fracture, head of first metacarpal thumb, right hand, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5228 (2012). 2. The criteria for a schedular rating of 10 percent, but no higher, for residuals of left great toe fracture have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.59, 4.71a, Diagnostic Codes 5003, 5280 (2012). 3. The criteria for a 10 percent rating for multiple non-compensable service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 3.324 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this decision, the Veteran has been granted separate 10 percent evaluations for residuals of fracture, head of first metacarpal right thumb, and residuals of left great toe fracture. Such evaluations exceed the benefit sought in the claim for a 10 percent evaluation under the provisions of 38 C.F.R. § 3.324. The 10 percent evaluations are in effect from and encompass the entire relevant appeal period. Therefore, the claim for a 10 percent evaluation under the provisions of 38 C.F.R. § 3.324 is moot. As the denial on this basis is a matter of law, not a question of fact, the Board is not required to address the duty to notify or the duty to assist with regard to this claim. With regard to the remaining increased rating claims, the Veteran was sent a letter in June 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, to include substantial compliance with the May 2012 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Indeed, the Veteran was afforded examinations in July 2012 pursuant to the remand instructions. The Board finds that the examination reports are thorough and contain sufficient information to decide the initial increased rating issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). Further regarding the duty to assist, the claims file contains the Veteran's service treatment records. He has not identified any post-service medical providers. His statements and hearing testimony are also of record. There is nothing in the record to suggest that there is any outstanding evidence pertaining to the initial increased rating issues on appeal. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial increased ratings The Board has reviewed all of the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an 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). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Fracture, head of first metacarpal thumb, right hand The evidence of record reflects that in 1965, the Veteran sustained a right hand/wrist injury in service which was treated with a cast for 6 weeks. The RO granted service connection for residuals, right hand fracture, but in the October 2009 statement of the case recharacterized the disability as residuals fracture, head of first metacarpal thumb, right hand, and continued the noncompensable rating. The Veteran's disability was initially rated noncompensably disabling per Diagnostic Code 5215 and then the noncompensable rating was continued under Diagnostic Code 5228. Under Diagnostic Code 5215, for limitation of motion of the wrist (major extremity), a 10 percent disability rating is assigned with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm or palmar flexion that is limited in line with the forearm. Under Diagnostic Code 5224, governing ankylosis of the thumb (major extremity), favorable ankylosis of the thumb warrants a 10 percent disability rating; unfavorable ankylosis of the thumb warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5224. Under Diagnostic Code 5228, regarding limitation of motion of the thumb, a noncompensable rating is warranted for limitation of motion with a gap of less than one inch (2.5 cm.) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; a 10 percent evaluation is warranted for limitation of motion of the thumb of the major hand, with a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers; and, a maximum 20 percent evaluation is warranted for limitation of motion of the thumb with a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. The Veteran initially underwent a VA examination in August 2008 and the examiner opined that his symptoms, discussed below, were due to a 2000 cerebrovascular accident (CVA), rather than the in-service injury, as he had not had any problems with his hand/wrist prior to the CVA. Despite this opinion, the RO granted service connection for residuals of his in-service right hand injury. The August 2008 examination report reflects that the Veteran was able to touch the thumb to his second, third and fourth fingers but he was not able to touch his thumb to his fifth finger. The examiner, however, did not specifically comment on the length of the gap. In July 2012, the Veteran underwent a VA examination and it was indicated that there was limitation of motion in the thumb with a gap of 1 to 2 inches. Based on the August 2008 objective findings showing that the Veteran was unable to touch his thumb to his fifth finger, and the July 2012 objective findings of a 1 to 2 inch gap between the thumb and fingers, the Board finds that a 10 percent disability rating is warranted per Diagnostic Code 5228. The Board acknowledges that the August 2008 VA examiner opined that his symptoms are due to his CVA, rather than his in-service injury, but as service connection was established for residuals of the injury, the Board finds that a compensable rating is warranted for the symptoms exhibited. A 20 percent rating is not warranted as a gap of more than two inches is not shown. The highest rating assignable under Diagnostic Code 5215 is 10 percent, which has already been awarded in contemplation of his thumb symptomatology. Assigning a separate rating under this diagnostic code would amount to impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In any event, the record does not indicate that the Veteran's range of motion for his wrist warrants a compensable rating under Diagnostic Code 5215, based on either dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm or palmar flexion is limited in line with the forearm. On examination in August 2008, he was able to flex his right hand to 40 degrees, extend to 10 degrees, adduct and abduct to 20 degrees both ways. His grip strength was a 3 to 4 on a 5-point scale. The Board also notes that Diagnostic Code 5214 is inapplicable as given the motion available, the record also does not indicate that the Veteran has ankylosis. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The July 2012 examiner found less movement than normal; weakened movement; excess fatigability; incoordination; swelling; and, deformity in the thumb. The effects of this functional loss, however, are contemplated in the currently assigned 10 percent rating. Even with consideration of functional loss and limitations, there is no indication that this is solely due to residuals of in-service right hand injury, as the CVA affected the right side of his body. Left great toe fracture Throughout the rating period on appeal, the Veteran's residuals of a left great toe fracture have been rated noncompensably disabling per Diagnostic Code 5299-5280. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. As the Veteran's great toe disability is not specifically listed in the rating schedule, it is rated analogous to hallux valgus. Under 38 C.F.R. § 4.71a, Diagnostic Code 5280, covering unilateral hallux valgus, a 10 percent rating is warranted for severe unilateral hallux valgus, if equivalent to an amputation of the great toe. A 10 percent evaluation is also assigned for post operative residuals of a hallux valgus where there is a resection of the metatarsal head. The August 2008 VA examination report reflects the Veteran's report of pain and swelling in the left great toe. If he steps on it wrong it hurt and caused problems and discomfort. He takes Tylenol as needed and does not use special orthotics. On physical examination, he had a small overgrowth over his anterior lateral aspect of his left great toe over the metatarsal-phalangeal (MTP) joint, approximately 2 x 1.5 centimeters in diameter. It was firm, nonmobile, and tender to palpation. He was able to flex and extend his toe well. He had good plantar dorsiflexion and good sensation. Plantar flexion was to 40 degrees and dorsiflexion was to 10 degrees. An x-ray examination showed significant degenerative change first MTP, probable avulsion fracture injury involving an osteophytic spur on the dorsomedial aspect of the first MTP. At the July 2012 VA examination, the Veteran reported pain and swelling in the great toe. Specifically, he had monthly episodes of swelling that lasted for about a day. During episodes of swelling, he had increased difficulty walking and stays off his feet. On physical examination, there was a synovial enlargement of the left great metatarsophalangeal joint (MTPJ) with tenderness to palpation noted. He could flex his great toe from 0 to 40 degrees without pain or loss of range of motion following three repetitions and from 0 to 10 degrees without loss of range of motion following three repetitions but pain was noted with flexion at 30 degrees. [The examiner stated "right" toe but it appears this is a typographical error and he was referring to the "left" toe.] It was noted that he used a cane, but this was due to residuals of stroke. The examiner checked the 'No' box for whether functional impairment such that no effective function remains other than that which would be equally well served by amputation with prosthesis. X-ray examination showed degenerative arthritis. Specifically, there were significant degenerative changes and probable posttraumatic deformity right first MTPJ with narrowing of the joint, subchondral cyst formation and osteophytic spurring. This likely represented a remote incompletely united avulsion fracture on the dorsal surface of the first MTPJ. Combined with bony spurring in the area, findings cause a soft tissue bump that is likely palpable. There was also a subtle slightly oblique lucency in the distal end of the proximal phalanx of the first toe that could represent an area of a remote well-healed prior nondisplaced fracture. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. As detailed above, x-ray examination reveals degenerative arthritis affecting the left great toe. While the Veteran has normal range of motion affecting the big toe, upon examination in July 2012 he reported pain at 30 degrees of flexion and he also reported swelling approximately once a month, affecting his ability to walk. He reported similar complaints of pain and swelling at the August 2008 VA examination. In light of the findings of degenerative arthritis affecting the left great toe and the complaints of pain on motion, the Board finds that a 10 percent disability rating is warranted to compensate him for his degenerative arthritis and toe symptomatology. 38 C.F.R. §§ 4.40, 4.45. Such rating compensates him for his pain, swelling, pain on range of motion testing, and walking limitations affecting the left great toe. The Board has given consideration to alternative diagnostic criteria affecting the foot and toes; however, such rating criteria is inapplicable and could not provide the basis for a rating in excess of 10 percent. For instance, he does not have flatfoot/pes planus (Diagnostic Code 5276), clawfoot (Diagnostic Code 5278), malunion or nonunion of tarsal or metatarsal bones (Diagnostic Code 5283), or a moderately severe foot injury (Diagnostic Code 5284). Additional considerations A total disability rating based on individual unemployability (TDIU) is a component of an increased disability rating claim when such claim is raised by the record. When evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. See e.g., Rice v. Shinseki, 22 Vet. App. at 447. In this case, the evidence of record does not reflect that the Veteran is unemployed due to his right thumb and left toe disabilities. As such, TDIU is deemed not to be raised by the record. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are adequate. Evaluations in excess of those assigned is provided for certain manifestations of the service-connected toe and thumb disabilities, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the various aspects of the Veteran's disorders. The Board finds that the diagnostic criteria is adequate for residuals of fractures. Indeed, there is no indication that the Veteran experiences symptoms that are outside the range of that contemplated by the relevant diagnostic codes. Accordingly, referral for extraschedular consideration is not for application here. ORDER Entitlement to a 10 percent disability rating for residuals of fracture, head of first metacarpal thumb, right hand, is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a 10 percent disability rating for residuals of fracture, left great toe, is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities under 38 C.F.R. § 3.324 is denied. REMAND As detailed in the May 2012 Board Remand, the Veteran has testified that when he worked at a shipyard on Mare Island in the late 1960's and early 1970's he was given annual hearing tests which showed hearing loss. In June 2012, a letter was sent to the Veteran requesting that he complete an appropriate release to request these records, but he did not respond prior to recertification of his appeal to the Board. However, in December 2012, he submitted a signed VA Form 21-4142 pertaining to Mare Island Naval Shipyard (MINSY) and indicated that the shipyard closed in 1995. The shipyard actually closed in 1996 and was a United States Navy base. An attempt should be made to obtain records from MINSY from an appropriate repository, to include the National Personnel Records Center (NPRC) and the Department of the Navy. 38 C.F.R. § 3.159(c)(2). In July 2012, the Veteran underwent a VA audiological examination to assess the nature and etiology of his claimed bilateral hearing loss. The examiner found that the results were not valid for rating purposes. The examiner stated that there were discrepancies in the test results even after reinstructing the Veteran. He had a stroke with right sided paralysis and some aphasia. His SRTs were better than his admitted pure tone thresholds which would indicate better hearing than was obtained. Some bone conduction thresholds were worse than his air conduction thresholds which also was not in agreement. He had negative peaked tympanograms which could cause some air-bone gaps. The configuration of his audiogram was exactly the same as his August 2008 audiological examination but shifted down (worse thresholds). Despite the invalid results, the examiner diagnosed sensorineural hearing loss in both ears. The examiner checked the 'Yes' box for hearing loss at least as likely as not caused by or a result of an event in military service based on the rationale that there was a threshold shift noted when comparing his entrance audio findings with those shown at separation. However, the examiner then commented that his relatively flat hearing loss through 4000 Hertz is not consistent with a typical noise induced hearing loss. The RO readjudicated the claim in a November 2012 supplemental statement of the case denying on the basis of no hearing loss disability. However, the August 2008 VA examination report shows hearing loss in both ears for VA purposes. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. For the purposes of applying the laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Audiological results from the August 2008 VA examination reflects an auditory threshold of 40 decibels at 4000 Hertz in the right ear; and, all of the auditory thresholds for the left ear are over 26 decibels. Thus, the valid audiological test of record does reflect hearing loss in both ear for VA purposes. In light of the July 2012 invalid audiological test results, the conflicting statements of the examiner, and the fact that prior audiological testing does reflect bilateral hearing loss, the Veteran should be afforded a new VA examination to assess the nature and etiology of his bilateral hearing loss. Accordingly, the case is REMANDED for the following actions: 1. The Veteran's audiological records from MINSY should be requested from the NPRC, Department of the Navy, or any other appropriate repository. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Schedule the Veteran for a VA audiological examination to determine the nature, extent, and etiology of his current hearing loss. The claims file must be made available to the examiner for review in conjunction with the examination. After examining the Veteran and reviewing the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that his hearing loss is related to acoustic trauma in service. The examiner is notified that VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO) units. The examiner should specifically address the upward threshold shift documented on the January 1965 audiological evaluation and July 1966 discharge examination as well as the Veteran's lay statements of pertinent symptoms since service. An appropriate rationale should be provided for all opinions expressed. 3. After completion of the above requested actions, and any additional notification and/or development warranted by the record, the AMC/RO should review the expanded record and determine if the benefit sought can be granted. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran and his representative have the right to submit additional evidence and argument on the matter 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs