Citation Nr: 1307723 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-38 574 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to an effective date earlier than November 18, 2009 for the assignment of a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability, to include on an extraschedular basis under 38 C.F.R. § 4.16(b). 2. Entitlement to an effective date earlier than November 18, 2009 for basic eligibility to received Dependents' Educational Assistance (DEA) pursuant to 38 U.S.C.A. Chapter 35. 3. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy. 4. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy. 5. Entitlement to an evaluation in excess of 40 percent for the service-connected lumbosacral strain. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from August 1976 to November 1979. The issues on appeal first came to the Board of Veterans' Appeals (Board) from March 2005, August 201, and July 2012 rating decisions issued by the RO. In April 2012, the Veteran presented testimony at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims folder. In February 2008 and July 2012, the Board remanded the case to the RO for additional development. 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 issues of an initial evaluations in excess of 10 percent for the service-connected radiculopathy of each lower extremity and an evaluation in excess of 40 percent for the service-connected lumbosacral strain are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since the date of his injury in August 2004, the Veteran is shown to have precluded from obtaining and maintaining substantially gainful employment as a result of pain, functional limitations, and other symptoms of his service-connected low back and disabilities. 2. The Veteran is shown to be eligible to receive DEA benefits pursuant to 38 U.S.C.A. Chapter 35 beginning on August 30, 2004. CONCLUSIONS OF LAW 1. The criteria for the assignment of a TDIU rating on an extraschedular basis have been met beginning on August 30, 2004. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.400, 3.341, 4.16 (2012). 2. The criteria for the assignment of an effective date of August 30, 2004, for eligibility to received DEA benefits under 38 U.S.C.A. Chapter 35, have been met. 38 U.S.C.A. §§ 3501, 3510, 5110 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.400, 3.807(a), 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, 3.326(a) (2010). The Board concludes that VCAA does not preclude the Board from adjudicating the Veteran's claims. This is so because the Board is taking action favorable to the Veteran by awarding the issues on appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Pertinent Legal Criteria The effective date of an award based on a claim for increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). A TDIU rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must determine without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341, 4.19. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the policy of VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standard enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). II. Factual Background The record shows that the Veteran has a 12th grade education and was employed as a train engine repairman and assembler between 1991 and 2004. An August 31, 2004 VA outpatient treatment record shows that the Veteran reported injuring his back on the previous day while splitting wood. A September 14, 2004 VA outpatient treatment record shows that the Veteran had a back injury and was requesting a letter for work. The examiner's assessment was that the Veteran had back spasms that were very symptomatic and would be out of work until further notice. An October 12, 2004 VA treatment note shows that the Veteran reported that he had experienced back pain since his initial injury in service, but that it had been worse since his most recent injury. He reported that he was still unable to work and that his job required lots of pushing, pulling and standing and that he could not sit down. On October 28, 2004, the RO received from the Veteran a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). On such form, the Veteran indicated that his service-connected back disability prevented him from securing or following any substantially gainful occupation and that he had last worked full time as a traction motor repairman for Walco Electric Company on August 27, 2004. He noted that his disability affected his full time employment on August 27, 2004 and that he became too disabled to work on August 27, 2004. A November 2004 VA examination report shows that the examiner indicated that the Veteran "[was] probably precluded from heavy physical work, but is not precluded from sedentary work at this time." A November 2004 VA addendum treatment note documents that the Veteran "[was] getting depressed" because he was unable to go to work due to his service-connected back problems. A VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) received in November 2004, shows that the Veteran's employer, Walco Electric Company, reported that the Veteran began working on September 21, 1999 and that he had last worked on August 27, 2004. The reported reason that the Veteran was not working was that he was on medical leave. The employer noted that the Veteran had not lost any time during the 12 months preceding his last day of employment due to his disability. A March 2005 SSA psychiatric examination recorded the Veteran's statement that "[he] injured [his] back, and it ha[d] taken its toll on [him]. It [was] depressing." An April 2006 private treatment record shows that the examiner, C. H. F., who diagnosed the Veteran with degenerative disk degeneratve lumbar spine, lumbar spondylosis, and depression, had stated: [he was] not sure that [the Veteran] ha[d] any option for retraining here, but certainly he [was] disabled from all optional employment for which he [was] trained or qualified at this time. It [was] possible that he might be able to perform some sort of part-time work in the future if he was retrained at some sort of sedentary activity that ha[d] the ability to change positions frequently and take breaks, work on a self-directed work schedule, but certainly, given his current condition, he [was] not able to function in a competitive work place at any function or employment. A June 2006 Social Security Administration determination shows that the Veteran was found to be entitled to a period of disability beginning August 3, 2004, for the primary diagnosis of affective or mood disorders and for a secondary diagnosis of disorders of the back (discogenic and degenerative). A March 2008 VA treatment record shows that the Veteran reported that his back condition hurt when he walked and that he spent a lot of time in bed. The Veteran also reported that he had not worked since 2004 when he reinjured his back and was completely disabled from any work. A March 2009 VA mental health consult documented the Veteran's report that he was "miserable and depressed" from back pain with resulting unemployment. In an April 2010 Employability Evaluation, E.R.H., a vocational rehabilitation consultant, after an extensive review and recitation of the record, opined that based on the restrictions and limitations related to the Veteran's service-connected low back, leg, right knee, tinnitus, and hearing loss disabilities, it was at least as likely as not that the Veteran had been precluded from performing any type of substantial gainful employment since he stopped working in August 2004. In reaching this conclusion, the consultant stated the following: [The Veteran's] vocational profile [was] that of a 51 year old Army veteran with some college education who ha[d] worked as a communications lineman/repairman, machinist and painter, mechanical assembler and train motor mechanic. He report[ed] that he ha[d] been unable to work in any capacity since August 2004 due to chronic low back pain and functional problems stemming from a 1979 service-connected back injury in a motor vehicle accident. The medical records reflect that [the Veteran] ha[d] a long history of back pain. The records mention[ed] low back pain in records dated 2/6/03 and 2/11/03 when he was still working. Going further back to 5/11/87, a report of compensation and pension examination state[d] that the Veteran reported that he worked as a laborer and that the back problems interfered with his work. An orthopedic exam on 1/16/85 noted reports of pain in the left posterior back that interfered with sleep. [The Veteran] exacerbated his service-connected back condition in August 2004 and could no longer perform the heavy exertion required in his occupation a traction motor mechanic. His inability to return to his former occupation [was] supported in statements of treating physicians and medical examiners. [One physician], his treating physician ha[d] asserted that he ha[d] been unable to work in any capacity since August 2004. Other examiners [had] at best stated that he [was] not precluded from sedentary work. Other problems [had] contributed to the overall severity of disability. He ha[d] hearing loss and tinnitus and residual problems of right knee injury. In addition, loss of his job led to financial problems and eventual loss of his home due to foreclosure. Depression caused by situational factors ha[d] been reported since 2004. The unfortunate chain of events following loss of his employment and the chronicity of the back pain and functional limitations, appear[ed] to have led to the worsened psychiatric symptoms reported in 2009. Yet, despite the multiple medical conditions, [the Veteran] report[ed] that the back and radiating left leg pain [were] the overriding problems that render him unemployable. The ongoing back and leg pain, and associated functional limitations show[ed] progression over time, [were] well-documented in the medical record and show[ed] progression over time. Restrictions in relation to physical activities include[d] limited ability to sit, stand, walk, drive, lift, and bend, with the need to change position frequently and the need to rest and recline throughout the course of the day. Based on the reports of limited functional abilities found in the medical records since the August 2004 exacerbation of the service-connected back injury, [the Veteran] ha[d] been precluded from working in any substantial gainful employment since that point in time. He ha[d] no transferable skills for sedentary work and unskilled work, even at the sedentary level, generally require[d] sustained physical activity. He [was] unable to sit for productive sedentary work and require[d] constant change of position and frequent rest breaks. It [was] for these reasons that the Social Security Administration found his was disabled as of August 2004 for gainful employment as it exist[ed] in the national economy. In November 2012, VA Director of Compensation and Pension Service, after reviewing the Veteran's claims file for extraschedular TDIU evaluation, found that, "our review of the evidence [did] not establish that the Veteran [was] unemployed and unemployable due to service-connected disabilities prior to November 18, 2009." In a January 2013 statement, E.R.H., the vocational rehabilitation consultant in response to the Veteran's attorney's request to review the changes in his service-connected disabilities since her last employability evaluation in April 2010 stated: At the time of the employability evaluation, it was my opinion that [the Veteran] had been precluded from performing any type of substantial gainful employment since he stopped working in August 2004 due to an injury that exacerbated his back condition. He was seen for evaluation and treatment of back pain at the V.A. Medical Center on 8/31/04. Medical records show[ed] that his back pain did not improve a V.A. examiner concluded on 11/18/04 that he could perform no more than sedentary work based on a spinal exam. Furthermore, his work capacity ha[d] not improved since that time. [The Veteran] ha[d] only worked in physically demanding occupations such as lineman/repairmen, machinist, painter, mechanical assembler and train motor mechanic. His acquired skills from these occupations [did] not transfer to sedentary employment. His unable to sit for prolonged periods of time, require[d] constant changes of position and frequent rest breaks. With these limitations he would not be able to meet production standards for unskilled sedentary employment. The document reviewed [did] not change my earlier opinion. Instead, the findings of entitlement to increased ratings for lumbosacral strain and left lower extremity provide further support for unemployability beginning in 2004. IV. Legal Analysis A. Earlier Effective Date for TDIU In this case, the Veteran asserts that he [was] entitled to an effective date earlier than November 18, 2009 the grant of a TDIU rating. For the period prior to November 18, 2009, the Veteran's service-connected disabilities were rated as follows: lumbosacral strain, rated as 40 percent disabling; tinnitus, rated as 10 percent disabling; a right knee disability, rated as 10 percent disabling; left lower extremity radiculopathy, rated as 10 percent disabling, and bilateral hearing loss, rated at a noncompensable level. 1. Schedular Here, the Board finds that the Veteran initially filed his claim for a TDIU on October 24, 2004, when he filed the VA Form 21-4138 indicating that his service-connected back disability rendered him too disabled to work on August 27, 2004. However, although the evidence of record suggests that the Veteran was, in fact, unemployable, he did not meet the requisite percentage requirements until November 18, 2009, the date he was assigned a 50 percent rating for major depressive disorder, effective on November 18, 2009. See 38 C.F.R. § § 4.16(a), 4.25. Thus, pursuant to 38 C.F.R. § 3.400(o)(1), the effective date is the later of the date of receipt of claim or the date entitlement arose. As entitlement arose on November 18, 2009, the criteria for an earlier effective date have not been met. 2. Extraschedular Although the Veteran did not meet the schedular criteria for an award of TDIU prior to November 18, 2009, entitlement to a TDIU rating is still possible on an extraschedular basis if the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability 38 C.F.R. § 4.16(b). In this case, in July 2012, the Board referred the matter to the Director of Compensation Service for consideration as to the Veteran's entitlement to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). See Fanning v. Brown, 4 Vet. App. 225 (1993). In November 2012, the Director considered the question of whether the Veteran should be awarded a TDIU rating on an extraschedular basis prior to November 18, 2009, due to his service-connected disabilities. After reviewing the evidence, the Director determined that the Veteran was not unemployed and unemployable by reason of his service-connected disabilities to warrant a TDIU rating under 38 C.F.R. § 4.16(b), prior to November 18, 2009. The Board may now review the decision of the Director with regard to entitlement to a TDIU rating under 38 C.F.R. § 4.16(b) and make an independent determination on this matter. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the record demonstrates that the Veteran (who has been service connected for a low back disability since November 1979) has a 12th grade education and was employed as a train engine repairman and assembler between 1991 and 2004. An August 31, 2004 VA outpatient treatment record shows that the Veteran initially reported injuring his back on August 30, 2004. Subsequent treatment records show that the Veteran continued to seek treatment for such condition and reported that he was been to work as a result of his back condition. With regard to whether the service-connected disabilities rendered him unemployable prior to November 18, 2009, the Board observes that the November 2004 VA examiner indicated that the Veteran was probably precluded from heavy physical work, but was not precluded from sedentary work at that time. Likewise, the Director of Compensation and Pension Service determined in November 2012 that the Veteran was not unemployed and unemployable by reason of his service-connected disabilities to warrant a TDIU rating under 38 C.F.R. § 4.16(b), prior to November 18, 2009. However, in April 2006, a private examiner found that the Veteran's low back disability rendered him "disabled from all optional employment for which he [was] trained or qualified at this time." The examiner further indicated that it was possible that the Veteran could be able to do some part time work in the future if he was retrained at some sort of sedentary activity that would allow him to change positions frequently or work on a self-directed work schedule, but that "given his current position, he was not able to function in a competitive work place at any function or employment." Likewise, in April 2010, E.R.H., a vocational rehabilitation consultant, after reviewing the Veteran's record found that it was at least as likely as not that the Veteran had been precluded for performing any type of substantially gainful employment since he stopped working in August 2004. She specifically indicated that, since his August 2004 injury, the Veteran (who had a work history of being a communications lineman/repairman, machinist, and painter, mechanical assembler and train motor mechanic) could not perform the heavy exertion that was required in his occupation as a traction motor mechanic. The consultant further noted that the Veteran had no transferable skills for sedentary work and that unskilled work, even at the sedentary level, generally required sustained physical activity. She also indicated that the Veteran was unable to sit for productive sedentary work and required constant change of position and frequent rest breaks. Similarly, in January 2013, E.R.H. again reiterated her opinion that the Veteran's unemployability began in 2004. In reaching this conclusion, she noted that the Veteran had only worked in physically demanding occupations such as lineman/repairmen, machinist, painter, mechanical assembler and train motor mechanic and that his acquired skills from these occupations did not transfer to sedentary employment. The consultant further noted that the Veteran was unable to sit for prolonged periods of time, required constant changes of position and frequent rest breaks and that with such limitations he would not be able to meet production standards for unskilled sedentary employment. The Board also notes that the Social Security Administrations finding that the Veteran had not been engaged in substantially gainful activity since August 3, 2004, as a result of his affective disorder and low back condition to be somewhat probative with regard to the Veteran's employability. The Board points out that, while SSA records are not binding on VA, they are probative evidence in support of the Veteran's claim with VA for a TDIU rating. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). In situations such as this, where there are conflicting opinions, it is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In weighing the evidence of record the Board observes that the November 2004 VA examiner failed to provide a rationale for her stated opinion. Likewise, although the VA Director of Compensation and Pension opined that the Veteran was unemployable due to his service-connected disabilities prior to November 18, 2009, he failed to provide a rationale for the stated conclusion. On the other hand, the Board finds that Dr. C.H.F. provided a well-supported rationale for his April 2006 opinion regarding the Veteran's employability. Likewise, E.R.H. provided detailed, well-supported rationales for her April 2010 and January 2013 opinions that the Veteran's service-connected disabilities rendered him unemployable beginning in 2004. Both examiners findings also appeared to be consistent with other records documenting the severity of the Veteran's back condition and other examiner's findings that the Veteran was unemployable prior to November 18, 2009 as a result of his service-connected disabilities. Thus, in determining whether the Veteran was unemployable prior to November 19, 2004, the Board finds that Dr. C.H.F's and E.R.H.'s opinions are more probative and outweigh the November 2004 VA opinion and the November 2012 findings of the VA Director of Compensation and Pension. Accordingly, in light of the entire record, and further resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU rating on an extraschedular basis is warranted for the period of the appeal prior to November 18, 2009. With regard to the specific date that the Veteran became unemployable, the record shows that he filed a claim for a TDIU rating on October 28, 2004. However, although the Veteran and his employer reported that he last worked full time on August 27, 2004, an August 31, 2004 VA treatment record shows that the Veteran reported that his back injury occurred on August 30, 2004. The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., the date on which he injured his back). See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board further finds that such statement, which was made in conjunction with treatment for his back injury, to be credible and highly probative with regard to the date that the back injury actually occurred. Therefore, the Board finds that it is factually ascertainable that the Veteran became unemployable due to his service-connected conditions on August 30, 2004. To this extent, the claim for an earlier effective date is granted. B. Earlier Effective Date for DEA Benefits The Veteran was granted basic eligibility for DEA benefits effective on November 18, 2009, based upon the grant of a TDIU rating that was effective as of the same date. For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113. In this decision, the Veteran has been granted an effective date of August 30, 2004 for his total disability rating. Therefore, an effective date of August 30, 2004, is now assignable for the grant of eligibility for DEA benefits pursuant to Chapter 35. ORDER An effective date of August 30, 2004, for the assignment of a TDIU rating is granted, subject to the regulations controlling disbursement of VA monetary benefits. An effective date of August 30, 2004, for the eligibility to received Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND In a July 30, 2012 rating decision, the Board granted service connection for bilateral lower extremity radiculopathy and assigned separate 10 percent evaluations, effective on October 28, 2004. The RO also increased the evaluation for the Veteran's lumbosacral strain to 40 percent disabling, effective October 28, 2004. In a November 17, 2012 letter, the RO informed the Veteran that it had received his written disagreement with the July 2012 rating decision. However, in reviewing the record, the Board cannot find a copy of such letter and, as such, cannot ascertain exactly what the Veteran is appealing (i.e., the assigned rating or the assigned effective date). Therefore, the Board finds that the RO should locate and associate with the claims file the Veteran's November 9, 2012 Notice of Disagreement (NOD). Once it is determined exactly what the Veteran is appealing, the RO should issue the pertinent SOC, as the Veteran has placed such issues in appellate status by the filing of a NOD as to these issues. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that in these circumstances where a Notice of Disagreement is filed, but a Statement of the Case has not been issued, the Board must remand the claim to the RO to direct that a Statement of the Case be issued Accordingly, this remaining matter is REMANDED to the RO 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.) The RO should take appropriate action in order to clarify the issues that the Veteran has placed in appellate status and then furnish the Veteran and his attorney a fully responsive Statement of the Case reflecting the adjudication of any identified issue. Only if the Veteran perfects a timely appeal as to an identified issue should the case be returned to the Board for the purpose of appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs