Citation Nr: 1306316 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-34 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or at the housebound rate for accrued benefits purposes. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1942 to May 1944. He died in April 2007. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for the cause of the Veteran's death being remanded 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. At the time of the Veteran's death, his principle disabilities were bilateral hearing loss, evaluated as 50 percent disabling; posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling; chronic maxillary sinusitis, evaluated as 30 percent disabling; and post operative benign papilloma of the tonsilar fossa, evaluated as noncompensably disabling. 2. The Veteran was not blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; he was a patient in a nursing home because of nonservice-connected mental or physical incapacity. 3. The Veteran's service-connected disabilities did not render him so helpless as to require the regular aid and attendance of another person to perform personal care functions of everyday living or to protect himself from the hazards and dangers incident to the daily environment. 4. The Veteran did not have a single service-connected disability rated as 100 percent disabling and was not shown to be permanently housebound as a result of his service-connected disabilities. 5. The Veteran was not continuously rated totally disabled due to service-connected disability for at least 10 years preceding his death, nor was a total evaluation continuously in effect since the date of his discharge from military service and for at least five years immediately preceding his death. CONCLUSIONS OF LAW 1. For purposes of accrued benefits, the criteria for an award of special monthly compensation based upon the need for the regular aid and attendance of another person or due to housebound status have not been met. 38 U.S.C.A. §§ 1114, 5121, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350, 3.351, 3.352 (2012). 2. The criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.159 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); DelaCruz v. Principi, 15 Vet. App. 143 (2002) (VCAA not applicable where law, not the factual evidence, is dispositive); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); see also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Regarding the issue of entitlement to SMC based on the need for aid and attendance or at the housebound rate for accrued benefit purposes, the law states that claims for accrued benefits are decided based on evidence in the file or constructively of record at the time of the Veteran's death. 38 U.S.C.A. § 5121(a) (West 2002). Therefore, no additional notice is required because there can be no additional evidentiary development. The Board finds that no further action is necessary under the VCAA because it is the law, not the evidence that is dispositive in regard to this claim. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). As regards the claim of entitlement to DIC under 38 U.S.C.A. § 1318, the relevant facts are not in dispute. Therefore, as that claim is being decided as a matter of law, and not on the facts of the case, the claim is denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, no further discussion of the VCAA requirements is required for this claim. II. Analysis A. SMC for Accrued Benefits Purposes Accrued benefits are benefits to which a veteran was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. §§ 5121, 5101(a) (West 2002 and Supp 2012); 38 C.F.R. § 3.1000 (2012); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Here, the record shows that, as the surviving spouse of the Veteran, the appellant has standing to file a claim for accrued benefits and that she did so in a timely fashion. The record also shows that at the time of the Veteran's death he had a claim pending for SMC based on the need for aid and attendance or at the housebound rate. Thus, in order to prevail on the accrued benefits claim, it must be shown that the Veteran would have prevailed on the claim if he had not died. Only evidence of record at the time of the veteran's death is considered in adjudicating a claim for accrued benefits. 38 C.F.R. § 3.1000. The United States Court of Appeals for Veterans Claims (Court) has stated that certain documents may be deemed constructively of record in an accrued benefits claim even though physically absent from the record on the date of death. Hayes v. Brown, 4 Vet. App. 353, 360-361 (1993). Specifically, the Hayes Court noted that the VA Adjudication Manual, M21-1, paragraph 5.25(b), permits certain government documents to be considered as being in the file at date of death even though actually put into the file after the date of death. The government documents consist of evidence in file at date of death. Evidence "in file," in turn, includes the following, even if such reports are not reduced to writing or are not physically placed in the veteran's file until after death: (1) service department records; (2) reports of VA hospitalization; (3) reports of treatment of examinations in VA medical centers including those in outpatient treatment folders; (4) Reports of hospitalization, treatment or examinations authorized by VA; and (5) Reports of autopsy made by VA on the date of death. In addition, the Court noted that VA Manual, M21-1, paragraph 5.25(b) states, in relevant part, that "[t]he cited regulations [38 C.F.R. § 3.1000(d)(4) and § 3.327(b)(1)] also provide for the acceptance of evidence after death for verifying or corroborating evidence 'in file' at death." The Court also noted that, in accordance with a then-current VA regulation, any hospital report and any examination report from a military hospital or from a State, county, municipal or other government hospital or recognized private institution which contain descriptions, including diagnoses and clinical and laboratory findings, adequate for rating purposes, of the condition of the organs or body systems for which claim is made may be deemed to be included in the term "Department of Veterans Affairs examination." 38 C.F.R. § 3.327(b)(1) (2012). That holding, however, only applied to medical examinations related to rating claims, not to service connection claims. Id. See also 60 Fed. Reg. 27409 (May 24, 1995), which eliminated the requirement in 38 C.F.R. § 3.327(b)(1) that at least one VA examination be made in every case in which compensation benefits are awarded, and with it, the exceptions deemed to be included in the term "Department of Veterans Affairs examination." Thus, the Court found that, taken together, these provisions from the VA Adjudication Manual and the Code of Federal Regulations may require that such reports, even though submitted after death, nevertheless, be considered. The appellant asserts that prior to the Veteran's death, he was entitled to SMC based on the need for aid and attendance or at the housebound rate was warranted as the Veteran was confined to a nursing home. See, e.g., March 2007 claim. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A veteran will be considered to be in need of regular aid and attendance if he or she is blind or is so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; if the Veteran is a patient in a nursing home because of mental or physical incapacity; or if the evidence establishes a factual need for aid and attendance or "permanently bedridden" status under the criteria set forth in 38 C.F.R. § 3.352(a). See 38 U.S.C.A. § 1114(l) (West 2002); 38 C.F.R. § 3.351(b) (2012). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. See 38 C.F.R. § 3.352(a) (2012). A Veteran will be found to be bedridden if the condition actually requires that he remain in bed, but not if he voluntarily stays in bed or if a physician merely recommends bed rest. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. Id. Although a Veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." See Turco v. Brown, 9 Vet. App. 222, 224 [(1996). SMC is payable at a specified rate if a Veteran, as the result of service-connected disability, has one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher or he is permanently housebound. The Veteran will be found to be permanently housebound if, due to his service-connected disabilities, he is substantially confined to his home or the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that such confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i) (2012). Based on a review of the evidence, the Board concludes that SMP based on the need for aid and attendance or at the housebound rate for accrued benefits purposes is not warranted. At the time of the Veteran's claim prior to his death, he was service connected for bilateral hearing loss, PTSD, chronic maxillary sinusitis and post operative benign papilloma of the tonsilar fossa. The appellant has not contended or demonstrated that the Veteran had a visual impairment to the extent that he was blind or nearly blind. Although the Veteran was a resident in a nursing home, the evidence fails to show that his service-connected disabilities necessitated him living in a nursing home. In connection with the SMC claim, statements from the Veteran's physician and from the nursing home he resided in were submitted in February 2007. The nursing home statement confirms that the Veteran required skilled nursing care due to a cerebrovascular accident (CVA) and confusion. The physician's statement indicated that the Veteran's history of illness was that he was 90 years old and had end-stage renal disease on dialysis, dementia, hypertension and chronic atrial fibrillation. The major diagnosis was end-stage renal disease with depression as the secondary diagnosis and hypertension as the third diagnosis. It was the physician's opinion that the Veteran needed the aid and attendance of someone else in the ordinary activities of daily living and was also housebound. Thus, the evidence establishes that the Veteran required the need for aid and attendance. However, the evidence fails to establish that it was the Veteran's service-connected disabilities that caused him to be so helpless as to be in need of regular aid and attendance. No medical professional has provided any opinion indicating that the Veteran's service-connected disabilities of bilateral hearing loss, PTSD, chronic maxillary sinusitis and post operative benign papilloma of the tonsilar fossa caused him to require regular aid and attendance or rendered him housebound. The statements from the nursing home and physician make no mention of any of the Veteran's service-connected disabilities. Rather, the evidence indicates that nonservice-connected disabilities such as a CVA, end-stage renal disease, dementia, hypertension, and chronic atrial fibrillation caused him to require aid and attendance and rendered him housebound. Although in a January 2013 brief, the representative argued that the Veteran's PTSD contributed to his confusion, which the nursing home statement lists as a reason for the Veteran requiring skilled nursing care, no medical professional indicated that the Veteran's PTSD actually caused confusion. At the time of the claim, the Veteran was 90 years old, with various other disabilities besides his PTSD. Absent evidence indicating that the Veteran's PTSD caused his mental decline such that aid and attendance was required, the Board cannot find that the Veteran's confusion was due to his PTSD. The Board concludes that the evidence does not show that the Veteran was so helpless as to be in need of regular aid and attendance due to his service-connected disabilities. Additionally, the Veteran did not meet the criteria for SMC at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. The evidence also fails to show that the Veteran was permanently housebound by reason of service-connected disability or disabilities. Although, the February 2007 physician's statement indicates that the Veteran was housebound, the evidence as discussed above fails to show that the Veteran's service-connected disabilities rendered him housebound. The Board is sympathetic to the appellant's claim since the evidence does show that the Veteran was so helpless as to be in need of regular aid. However, the evidence shows that it was the Veteran's nonservice-connected disabilities that caused him to require regular aid and attendance. As this claim is for accrued benefits purposes, the Board is bound to render its decision based on the evidence of record at the time of the Veteran's death. The evidence of record at the time of the Veteran's death fails to establish that SMC was warranted due to his service-connected disabilities. In reaching this conclusion, the Board observes the fact that the Veteran's disabilities were last rated in a May 2001 rating decision. There is no indication between 2001 and the SMC claim in 2007 that the Veteran desired an increased rating due to a worsening of his disabilities. The evidence also fails to show that the Veteran filed a claim seeking SMC prior to 2007, at which time he had other nonservice-connected disabilities as discussed above. In other words, as the Veteran did not require regular aid and attendance and was not housebound in 2001, in light of the Veteran developing other nonservice-connected disabilities prior to his claim, the evidence weighs against a finding that the Veteran's service-connected disabilities caused him to require aid and attendance or rendered him housebound. Moreover, as already noted above, no medical professional has opined that the Veteran's service-connected disabilities rendered him so helpless as to require the aid and attendance of another or housebound. In sum, the competent evidence of record does not indicate that the Veteran's service-connected disabilities prevented him from performing any activities of daily living such that aid and attendance was required or that they rendered him housebound. Based on the foregoing, the Board finds that the claim for SMC based on aid and attendance or housebound status must be denied. As the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt rule does not apply, and the appellant's claim of entitlement to special monthly compensation based on the need for aid and attendance or at the housebound rate for accrued benefit purposes is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). B. DIC under 38 U.S.C.A. § 1318 A surviving spouse may establish entitlement to DIC in the same manner as if the veteran's death were service connected where it is shown that the veteran's death was not the result of willful misconduct, and the veteran (1) was continuously rated totally disabled for the 10 years immediately preceding death; (2) was rated totally disabled upon separation from service, was continuously so rated, and died more than five but less than ten years after separation from service; or (3) the Veteran was a former prisoner of war (POW) who died after September 30, 1999, and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C.A. § 1318(b); 38 C.F.R. § 3.22(a). Claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during the veteran's lifetime, and without consideration of "hypothetical entitlement" to benefits raised for the first time after a veteran's death. See Rodriguez v. Nicholson, 511 F.3d 1147 (Fed. Cir. 2008) (the revised provisions of 38 C.F.R. § 3.22, as amended in 2000, may be applied to claims for DIC benefits filed by survivors before the amendment took effect). The Veteran was in receipt of a total rating for his service-connected disabilities from February 16, 2001; his 100 percent rating was not in effect for more than 10 years at the time of his death in April 2007. Furthermore, the Veteran died more than 50 years after his separation from active duty service and he was not a former POW. In essence, the facts of this case are not in dispute, and the law is dispositive. Here, none of the criteria for entitlement to DIC under 38 U.S.C.A. § 1318 have been met. Accordingly, the claim will be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to SMC based on the need for aid and attendance or at the housebound rate for accrued benefit purposes is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. REMAND Regrettably, a remand is necessary for further evidentiary development for the issue of service connection for the cause of the Veteran's death. As noted above, at the time of his death in April 2007, the Veteran was service-connected for bilateral hearing loss, PTSD, chronic maxillary sinusitis and post operative benign papilloma of the tonsilar fossa. According to the April 2007 certificate of death, the immediate cause of the Veteran's death was asystole with cardiomyopathy listed as the condition leading to the asystole. Other significant conditions contributing but not resulting in the underlying cause included end-stage renal disease, coronary artery disease, and atrial fibrillation. The Veteran reportedly died at the Val Verde Regional Medical Center. The Board observes that the Veteran's terminal treatment records have not been obtained. In order to establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312(a) (2012). This question will be resolved by the use of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the Veteran, including, particularly, autopsy reports. Id. For a service-connected disability to be considered the principal or primary cause of death, it must singly, or with some other condition, be the immediate or underlying cause, or be etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1) (2012). The standards and criteria for determining whether or not a disability from which a veteran has died is service-connected are the same standards and criteria employed for determining whether a disability is service connected generally, i.e., while the veteran is still alive. 38 U.S.C.A. § 1310 (West 2002). Issues involved in a claim for DIC are decided without regard to any prior disposition of those issues during the Veteran's lifetime. 38 C.F.R. § 20.1106 (2012). The appellant has not contended, nor does any of the evidence of record currently show, that the Veteran's cardiomyopathy, end-stage renal disease, coronary artery disease and atrial fibrillation were directly related to his military service. However, in a January 2013 brief, the appellant's representative asserted that the Veteran's PTSD ultimately contributed to his death as medical articles and treatises purport to show causal relationships between PTSD and heart disease. Essentially, the representative argues that the Veteran's service-connected PTSD contributed substantially or materially, combined to cause, or aided or lent assistance to the production of death. No medical opinion has been obtained as to whether the Veteran's PTSD, or any of his other service-connected disabilities, contributed to his death. Due to the complex medical issues involved in this case, the Board finds that a remand is warranted as a medical opinion is necessary to substantiate this claim. 38 U.S.C.A. § 5103A(a)(1). On remand, the Veteran's terminal treatment records should also be obtained. Furthermore, certain additional VCAA notice requirements may attach in the context of a claim for DIC benefits based on service connection for the cause of death. The Court held that, for a DIC claim, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007). The Board observes that the appellant was not adequately apprised of the VCAA in accordance with Hupp as she was not notified of the conditions for which the Veteran was service-connected at the time of his death. Adequate notice should be provided on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Issue to the appellant a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) on claims for DIC benefits. The letter should explain, what, if any, information and evidence (medical or lay) not previously provided to VA is necessary to substantiate the appellant's claim and should include: (1) a statement of the conditions for which the Veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The letter should indicate which portion of the evidence, if any, is to be provided by the appellant and which portion, if any, VA will attempt to obtain for her. 2. After obtaining the appropriate release of information forms where necessary, procure the Veteran's terminal treatment records as well as records of post-service treatment that the Veteran received for his service-connected disabilities prior to his April 2007 death. The Board is particularly interested in records of such treatment that the Veteran may have received from the Val Verde Regional Medical Center. If any such records identified by the appellant are not available, she should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Then, obtain an opinion from an appropriate VA medical specialist as to the etiology of the cause of the Veteran's death. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. A notation to the effect that this review has taken place should be made in the opinion report. After reviewing the claims folder and considering the pertinent evidence of record (including the April 2007 certificate of death), the medical specialist should opine as to: a) Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's service-connected disabilities (bilateral hearing loss, PTSD, chronic maxillary sinusitis and post operative benign papilloma of the tonsilar fossa) caused, materially contributed to, or hastened his death. In answering this question, the examiner should determine whether the bilateral hearing loss, PTSD, chronic maxillary sinusitis and post operative benign papilloma of the tonsilar fossa involved active processes affecting vital organs that produced debilitating effects and general impairment of health to an extent that would have rendered him materially less capable of resisting the effects cardiomyopathy, end-stage renal disease, coronary artery disease and atrial fibrillation. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the examination report complies with (and answers the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issue remaining on appeal. If the benefit remains denied, the appellant and her attorney should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs