Citation Nr: 1305546 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-32 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an effective date prior to August 28, 2008, for the assignment of a 50 percent rating for sleep apnea. 2. Entitlement to service connection for a bilateral wrist disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran had active service from September 1999 to December 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In December 2009, the Veteran testified before a Decision Review Officer during a formal hearing held at the RO. A transcript of the hearing has been associated with the claims file. The issue of service connection for a bilateral wrist disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. A claim for an increased disability rating for sleep apnea, either formal or informal, was not received by VA until January 30, 2008. 3. The evidence of record dated within a year prior to January 30, 2008, does not show a factually ascertainable increase in the severity of the Veteran's sleep apnea disability. 4. The medical evidence dated from August 1, 2008, shows that Veteran's service-connected sleep apnea disability more closely approximates the required use of a breathing assistance device such as a continuous airway pressure machine. CONCLUSION OF LAW The criteria for an effective date of August 1, 2008, but no earlier, for the assignment of a 50 percent rating for sleep apnea have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been fulfilled by information provided to the Veteran in a letter from the RO dated in September 2008. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his claim. Thereafter, the claim for an earlier effective date was reviewed and a Statement of the Case and a Supplemental Statement of the Case were issued in July 2009 and January 2010, respectively. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). In Dingess/Hartman, the Court found that the VCAA notice requirements applied to all elements of a claim. Notice as to disability ratings and effective dates was provided in the September 2008 correspondence. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The duty to assist also has been fulfilled as medical records from military service and post-military providers have been requested and obtained. The Veteran has not identified any medical records that have not been obtained. Therefore, the Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Claim for an Earlier Effective Date The Veteran seeks an earlier effective date for the assignment of a 50 percent rating for his service-connected sleep apnea disability. In a December 2008 rating decision, the RO awarded a 50 percent disability rating for this disability, effective from August 28, 2008. The Veteran claims that he is entitled to an effective date of December 18, 2005, the date that service connection for this disability was granted. The general rule with regard to an award of increased compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan v. Gober, 10 Vet. App. 511 (1992). VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriquez v. West, 189 F.3d 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-35 (1998). The procedural history in this case shows that the Veteran's initial claim for service connection for sleep apnea was received on March 7, 2006, within one year from his discharge from service. The RO granted service connection for sleep apnea in a November 2006 rating decision and assigned a noncompensable rating effective from December 28, 2005, the day following the Veteran's discharge from the military. Thereafter, in February 2007, the Veteran filed a Notice of Disagreement (NOD) as to the noncompensable rating assigned in the November 2006 rating decision. A Statement of the Case (SOC) was issued in August 2007. The Veteran did not submit a timely substantive appeal (VA Form 9) as to the November 2006 rating decision. Significantly, under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a NOD and completed by a substantive appeal after a SOC is furnished to the Veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203. Although the Veteran submitted a timely NOD as to the November 2006 rating decision, he did not file a substantive appeal. Moreover, new and material evidence relevant to the claim was not received within a year of the November 2006 rating decision. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the November 2006 rating decision is final and is not subject to review in the absence of clear and unmistakeable error (CUE) in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this case, neither the Veteran nor his representative has asserted CUE in the November 2006 rating decision. While the Veteran did file an NOD as to the noncompensable rating assigned in that rating action and the RO responded with a SOC, the Veteran did not appeal the November 2006 rating decision. Under these circumstances, the Board is precluded from assigning an effective date based on the claims considered in the November 2006 rating decision, specifically including the initial disability rating assigned for the Veteran's service-connected sleep apnea. See 38 C.F.R. § 3.400(o). On January 30, 2008, the Veteran filed an informal claim for an increased rating for his sleep apnea disability. The RO continued the noncompensable rating assigned for the disability in a May 2008 rating decision. Subsequently, in a December 2008 rating decision, the RO granted an increased 50 percent rating for sleep apnea, effective from August 28, 2008, the date upon which VA medical records show that he was provided a continuous positive airway pressure (CPAP) machine. The Veteran perfected an appeal of the effective date for the 50 percent rating, which is the issue currently on appeal. Under the general rule, the effective date is the later of the date of claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). Here, the date of receipt of the claim for an increased rating for sleep apnea was January 30, 2008. A review of the claims file indicates that no other documents or communications of record may be interpreted as a formal or informal claim for an increased evaluation during the period from February 2007 to January 2008. See 38 C.F.R. § 3.1(p), 3.155(a); see also Servello, 3 Vet. App. 192, 198 (1992). A review of the claims file also indicates that no VA reports of examination or hospitalization may be accepted as an earlier claim for an increased evaluation. See 38 C.F.R. § 3.157(b). The RO indentified August 30, 2008, as the date upon which entitlement arose, as a VA treatment record from this date provided the first evidence of record that the Veteran's sleep apnea met the criteria for a 50 percent rating under the applicable diagnostic code. See 38 C.F.R. § 4.97, Diagnostic code 6847. Thus, as entitlement to a 50 percent rating arose following receipt of the Veteran's increased rating claim (discussed further below), the effective date for the assignment of this rating can be no earlier than the date entitlement arose in August 2008. Under the exception, however, an earlier effective date may be granted on the date of a factually ascertainable increase in the service-connected sleep apnea disability, if such increased occurred within the one-year period preceding the date of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Board must also determine the date upon which it became factually ascertainable that an increased rating was warranted for the Veteran's sleep apnea. For the purposes of this appeal, the Board must determine whether the entire evidence of record, to specifically include evidence dated within one year of the January 30, 2008 claim, indicates a factually ascertainable increase in the Veteran's sleep apnea that warrants a 50 percent evaluation. See Hazan v. Gober, 10 Vet. App. 511 (1997) (When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application.). See also, 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400(o), 4.1, 4.2. Here, the Board notes that the Veteran's service-connected sleep apnea is evaluated under Diagnostic Code 6847. Under the criteria for Diagnostic Code 6847, a noncompensable rating is warranted for asymptomatic but documented sleep disorder breathing. A 30 percent disability rating is warranted for persistent day-time hypersomnolence. See 38 C.F.R. § 4.97, Diagnostic Code 6847. Important for this case, a 50 percent disability rating is warranted when the disability requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. Id. A total, 100 percent, disability rating is warranted for chronic respiratory failure with carbon dioxide retention or cor polmonale, or requires the use of a tracheostomy. Id. The Veteran essentially argues that he is entitled to an earlier effective for the 50 percent rating for his sleep apnea because the evidence shows that this higher rating was warranted prior to August 28, 2008. Specifically, he highlights that he underwent a CPAP trial prior to August 2008, which he believes shows that the machine was required for his sleep apnea disability. Although he indicated that he did not use a CPAP machine consistently prior to August 2008, he asserts that this was due to no fault of his own. He claims that his initial sleep study in October 2006 was improperly administered without the use of a CPAP machine, and if one had been used, it would have shown that the use of a CPAP was needed. Additionally, he states that he was not given a mask to properly use the machine when he first underwent the CPAP trial, and therefore, he did not use the machine often. The Veteran further asserts that VA was delayed in scheduling him for a proper examination, and had he been examined earlier, the examination would have shown that he required the use of a CPAP machine for his sleep apnea. The evidence dated from January 30, 2007, one year prior to the date that the Veteran filed his claim for an increased rating, includes a December 2007 VA treatment record showing that the Veteran underwent an auto-titrating CPAP trial. He reportedly used the machine 50 percent of the time during the trial, with the duration of his use averaging 1 hour and 25 minutes a night. This record shows that the Veteran returned the machine. He reported that he would find the mask and hose on the floor every morning. An April 2008 VA respiratory examination report documents the assessment of the Veteran's service-connected sleep apnea. The examiner noted that the Veteran previously underwent a sleep study that revealed mostly supine dependent respiratory events borderline normal with mild elevation during rapid eye movement (REM) sleep. The examiner noted that the Veteran was placed on supine preclusion prior to deciding on a CPAP trial restudy. According to a review of the medical records, in October 2007, the Veteran reported that the supine preclusion trial was ineffective. He agreed to participate in an auto CPAP trial, which was initiated in November 2007. The Veteran reported that he used the CPAP 50 percent of the time on an average of 1hour and 25 minutes per night. When the Veteran returned the machine, he reported that he found the mask and hose on the floor every morning. The examiner noted that this was evidently a nose mask. Although the Veteran stated that a trial with a full face mask was planed, it had not occurred at the time of the examination. The examiner noted, however, that the VA pulmonary function lab informed him that the Veteran was not using the machine sufficiently and no follow up was planned. Following the examination, the examiner assessed the Veteran with mild sleep apnea with a self history of hypersomnolence, but no use of CPAP. A subsequent April 2008 VA treatment record reflects the Veteran's history of having undergone a CPAP trial with low use of the machine, and that he was found to be intolerant of this therapy. A May 2008 VA treatment record further indicates that the Veteran did not tolerate the CPAP trial well, even with minimal use, and thus the CPAP machine was not ordered for his sleep apnea. However, the Veteran still requested a CPAP machine because he felt that he slept better and felt more alert. The Veteran was referred for a repeat sleep study with CPAP titration to determine if the CPAP would be beneficial. The Veteran underwent a VA CPAP titration study on August 1, 2008. The examination revealed that at the lowest CPAP pressure setting of 5 cm of water there was suppression of abnormal breathing events with normal apnea/hyopnea index and normal oxygenation. The examiner stated that it was conceivable that the Veteran's sleep disordered breathing had improved or resolved since the last study; however, it was difficult to discern the Veteran's present baseline based on the present study. According the examiner, the Veteran appeared to have adequate control of his mild sleep apnea at the lowest pressure setting of 5 cm of water, and he recommended that this continue with the use of room air. The examiner recommended compliance monitoring with the Veteran's use of the CPAP machine. A VA treatment record dated on August 28, 2008, shows that the Veteran was set up on a CPAP machine at 5 cm of water and provided education regarding the use and care of the machine. In light of this evidence, the Board finds that an effective date of August 1, 2008, but no earlier, is warranted for the assignment of a 50 percent rating for sleep apnea. VA treatment records show that on this date, the Veteran underwent a CPAP titration study, and a VA clinician recommended the use of a CPAP machine. Although he was not provided with his own CPAP machine until August 28, 2008, a VA clinician recommended the use of this machine for his sleep apnea following the August 1, 2008 study. His sleep apnea disability more closely approximated the criteria for a 50 percent rating from this date. Thus, the August 1, 2008 treatment record reflects the date upon which entitlement arose. Accordingly, under the general rule, August 1, 2008, is the appropriate effective date for the assignment of a 50 percent rating for the Veteran's sleep apnea disability. The evidence of record, however, does not show a factually ascertainable increase in the severity of the Veteran's disability prior to this date, or within the one year period prior to his claim for an increased rating in January 2008. The evidence of record dated prior to August 2008 shows that the Veteran underwent a CPAP trial from November 2007 to December 2007, but does not show that a CPAP was required or even consistently used. Indeed, the treatment records from this time period show that the Veteran used the CPAP machine only 50 percent of the time during the trial period and for less than two hours per night. In April 2008, a VA clinician determined that the Veteran was intolerant to CPAP therapy. Further, in May 2008, it remained questionable whether the Veteran would benefit from this therapy and he was thus scheduled for a CPAP study. Given that the use of a CPAP machine was inconsistent or deemed intolerant or questionable, it is simply is not factually ascertainable that his sleep apnea disability warranted a 50 percent rating prior to August 1, 2008. Accordingly, an earlier effective date is not warranted under the exception to the general rule provided under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.3400(o)(2). In this regard, the Board acknowledges the Veteran's contentions that his disability required the use of a CPAP machine since the effective date of service connection. He asserts that the evidence would reflect this had he been provided with an adequate examination using a CPAP at the time he was granted service connection, given the proper equipment to use the machine during the CPAP trial, or scheduled for an evaluation for possible use of the machine at an earlier date. However, the regulation is clear: A 50 percent disability rating is warranted when the disability "requires" the use of a breathing assistance device such as a CPAP machine. The fact that the Veteran did not consistently use the CPAP machine, for whatever reason, undermines the claim for an earlier effective date for the assignment of a 50 percent rating. Indeed, the Veteran's arguments simply highlight that it is not factually ascertainable from the evidence of record dated prior to August 2008 that his sleep apnea met the criteria for a 50 percent rating. The Board further notes that there is no regulation defining "required" use of a CPAP machine under 38 C.F.R. § 4.97, Diagnostic Code 6847. In the absence of a specific definition by the criteria, words are given their usual and ordinary meaning. The word "require" is defined as "to demand as necessary or essential: have a compelling need for." See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY, Eleventh Edition (2007). In light of this definition, the Board does not find that the Veteran's limited use of a CPAP in November and December of 2007 to be required as contemplated by the rating criteria. The Board again highlights that the evidence from this time period shows that the Veteran only used the CPAP for less than 2 hours a night and only 50 percent of the time he underwent the trial. His treating clinicians determined that he did not tolerate the use of this therapy. As such, the Board finds that use of the CPAP device was not "required" within the meaning of 38 C.F.R. § 4.97, Diagnostic Code 6847. In reaching this determination, the Board has considered the Veteran's assertions regarding the severity of his sleep apnea disability during the period on appeal and his belief that an earlier effective date for a 50 percent rating is warranted. The Veteran is competent in this instance to describe his sleep apnea symptomatology and his experiences. The Veteran, as a lay person, is competent to provide such evidence of how his disability affects his everyday life. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). He is competent to report that which he can experience or observe and is deemed credible, in this regard. However, as a lay person lacking in medical training and expertise, the Veteran cannot provide a competent medical opinion regarding the severity of his disability including clinical evaluation and laboratory studies, and to that extent, his reports are outweighed by the detailed opinions provided by the medical professionals who evaluated the Veteran's service-connected disability and provided the relevant clinical testing during the period on appeal. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has also considered the Veteran's contention that the effective date of his 50 percent rating should date back to December 28, 2005, the date that he was awarded service connection for sleep apnea. However, as explained above, the law relevant to this decision is clear as to the finality of decisions rendered by agencies of original jurisdiction. See 38 C.F.R. § 5110; 38 C.F.R. § 3.400; see Sears v. Principi, 16 Vet. App. 244, 247-48 (2002). To the extent that the Veteran seeks an earlier effective date based on a final rating decision, he must file a CUE claim concerning the prior rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision as free-standing claims for earlier effective dates vitiate the rule of finality). As was noted earlier, no CUE claim regarding the earlier November 2006 final rating decision has been commenced. In the present case, the evidence shows that a 50 percent rating for the Veteran's sleep apnea is warranted from August 1, 2008, but no earlier. To the extent that the Veteran seeks an even earlier effective date, there simply is no legal authority for the Board to assign an earlier effective date as this the earliest possible effective date for the grant of benefits shown by the evidence of record. While the Board sympathizes with the Veteran's position, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). In sum, the claim for an effective date of August 1, 2008, but not earlier, for the assignment of a 50 percent rating for sleep apnea is granted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, (1990). ORDER Entitlement to an effective date of August 1, 2008, for the assignment of a 50 percent rating for sleep apnea is granted, subject to the laws and regulations governing monetary awards. REMAND Reasons for Remand: To obtain VA medical records and to schedule a VA examination The Veteran claims entitlement to service connection for a bilateral wrist disorder. Although he does not claim to have incurred a specific in-service injury to his wrists, he attributes his wrist disorder to the physical demands required by his training and service in an Air Force security forces (military police) unit. The Veteran claims to have experienced bilateral wrist pain in service and asserts that his symptoms have continued since that time. It does not appear that all of the VA medical records relevant to the Veteran's claim have been associated with the claims file. A February 2010 VA record shows an assessment of wrist paresthesias and that the Veteran was scheduled for an electromyography (EMG) study. However, there is no physical examination of record associated with this diagnosis. Moreover, it is unclear whether the Veteran actually underwent the recommended EMG study. Additionally, in a January 2011 statement, the Veteran reported that he had recently underwent an examination for his wrists at the VA medical center in Milwaukee, which revealed "arthritis type" pain. Thus, on remand, all outstanding medical records relevant to the Veteran's bilateral wrist disorder must be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Additionally, a VA examination is needed in order to assess the etiology of the Veteran's claimed bilateral wrist disorder. The Veteran was afforded a VA examination with respect to his claim in December 2009. At that time, the VA examiner provided a diagnosis of chronic bilateral wrist strain that was less likely as not caused by or related to the Veteran's military duties. The examiner determined that there was no finding of a peripheral nerve condition. However, in light of the February 2010 assessment of wrist paresthesias and the outstanding medical records, a new examination is warranted to determine the exact nature and etiology of the claimed bilateral wrist disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (determining that VA must supplement the record by seeking an advisory opinion or ordering an examination when the medical evidence is inadequate to decide a claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any VA medical records that are relevant to the issue being remanded, and any private medical records that the Veteran identifies and requests that VA obtain on his behalf. 2. Thereafter, schedule the Veteran for an appropriate examination to determine the nature and etiology of the claimed bilateral wrist disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this Remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to the following: (a) Identify all wrist disorders found to be present. (b) For all diagnosis provided, opine whether it is as least as likely as not (50 percent probability or greater) that the wrist disorder had its onset in service or is otherwise etiologically related to the Veteran's military service, to include the physical demands required by the Veteran's military occupational specialty in security forces. In providing the request opinion, the examiner must discuss and consider the Veteran's competent statements regarding in-service wrist symptoms and a continuity of symptomatology following separation. A complete rationale must be provided for all opinions in a typewritten report. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 3. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims files a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 4. After the above has been completed, review the claims files and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If the examination report does not include adequate responses to the specific opinion requested, it must be returned to the examiner for corrective action. 5. After taking any other development found to be necessary, readjudicate the claim. If the benefit is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs