Citation Nr: 1310108 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-28 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for hypertension, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active naval service from October 1961 to August 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of service connection for hypertension, including as due to herbicide exposure, is decided herein, whereas the issue of service connection for bilateral hearing loss disability is addressed in the REMAND that follows the ORDER section of this DECISION. FINDINGS OF FACT 1. The Veteran is not shown to have been exposed to herbicides during his active service. 2. Hypertension was not present in service or manifested to a compensable degree within the first year after discharge from service and it is not etiologically related to service. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts entitlement to service connection for hypertension. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided complete notice in November 2007, prior to the rating decision on appeal. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. The Veteran's service treatment records (STRs) are of record, as are treatment records from those VA providers identified by the Veteran as having relevant records. The Board also notes that the Veteran has not been afforded a VA examination addressing his current service-connection claim for hypertension. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. However, a medical examination addressing the Veteran's claim is unnecessary in this case because, even though there is current disability, there is no credible evidence of an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, which would support incurrence or aggravation [McLendon element (2)]. Furthermore, there is no indication that the current disability may be related to an in-service event [McLendon element (3)]. Although the Veteran has so asserted, he is not competent to render such an opinion himself. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) [noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer]. The Veteran cannot opine as to the etiology of his hypertension, which involves complex matters of the cardiovascular system. Under such circumstances, an examination is not required. Inasmuch as the Veteran urges that a report, The Institute of Medicine, Veterans and Agent Orange Update 2010 (2012), indicates that hypertension is placed in the limited and suggestive" category of conditions resulting from Agent Orange exposure, this does not satisfy McLendon elements 2 or 3 to trigger an examination. This is because hypertension is still not a presumptive disease under Agent Orange regulations, and moreover the current record does not show that the Veteran was in contact with herbicide in his naval service. Inasmuch as the Veteran urges that an additional search should be undertaken to ascertain whether he was exposed to herbicide, the RO has already conducted sufficient research into this matter. The RO forwarded the Veteran's information to the Joint Services Records and Research Center (JSRRC). The October 2009 response from that agency was that there is no conclusive proof of the Veteran being in country, although it was acknowledged that his ship was in the official waters of Vietnam during his period of service. Finally, VA's most current official records of ships which were in the official waters of Vietnam does not reflect that his ship, the U.S.S. Ozbourn, engaged in activities that would allow for presumptive herbicide exposure. Thus, although the Veteran urges additional development is necessary, the Board finds that the duty to assist has been satisfied as to this issue. The Veteran has not identified any other evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. In sum, any procedural errors in the originating agency's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. II. General Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests hypertension to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Any such veteran is thereby entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e) (2012). Hypertension is not included in 38 C.F.R. § 3.309(e) as a disease that has been associated with herbicide exposure. VA limits the presumption of exposure to Veterans who served on the ground or on the inland waterways of Vietnam and excludes Veterans who served aboard ships operating on Vietnam's offshore waters. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975; and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). Since issuance of VAOPGCPREC 27-97, VA has reiterated its position that service in deep-water naval vessels (i.e. "Blue Water" service) offshore of Vietnam, as opposed to service aboard vessels in inland waterways of Vietnam (i.e. "Brown Water service") is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. Further, the VA Adjudication Procedure Manual, M21-1MR, contains a note that "[s]ervice aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Rahn Bay, along the RVN coast does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides." M21-MR, IV.ii.1.H.28.h. The note goes on to state that "[e]vidence of shore docking is required in order to concede the possibility that the Veteran's service involved duty or visitation in the RVN." Id. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, presumption is not the sole method for showing causation. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background There is no competent evidence that the Veteran had hypertension in service or within the first post-service year. Neither his August 1961 entrance examination nor his August 1965 separation examination reflect hypertension. VA treatment records dating from September 2007 reflect the initial documented findings of hypertension. The Veteran reported in his October 2007 claim for VA benefits that hypertension began in 1976, but that treatment began in 1978. However, in an earlier VA claim dated in February 2004, the Veteran reported that he had been disabled since 2004 due to a combination of medical issues to include hypertension. The Veteran contends that his hypertension is due to his exposure to Agent Orange in service. It is his contention, reflected in his October 2007 VA claim, that he began having high blood pressure in his mid-20's due to his herbicide exposure on the U.S.S. Ozbourn, a destroyer that went into the waters off Vietnam. Through his representative he urged that the ship patrolled the area near the South China Sea and was located very near shore. He stated that while on the ship, he used water from the gulf for cooking, bathing and drinking. He cited to the Instititue of Medicine, Veterans and Agent Orange Update 2010 (2012) for the proposition that there is currently a concern about dioxin exposure via drinking water for personnel who served offshore but within territorial limits on ships that converted sea water to drinking water. He also cited to this study for the proposition that hypertension, while not a presumptive disease for Agent Orange, is currently in the limited and suggestive category of conditions resulting from Agent Orange. The Veteran's wife has submitted a statement indicating that she believes her husband has multiple disabilities due to Agent Orange exposure. The record reflects that the Veteran served as a Seaman's apprentice (E-2) aboard the U.S.S. Ozbourn (DD 846). That ship is confirmed to have been in the official waters of the Republic of Vietnam from August 11 to September 9, 1964, September 16 to September 24, 1964, October 5 to October 8, 1964, and November 5 to November 7, 1964. The Veteran's service treatment records (STRs) indicate that he was first assigned to the ship in May 1965 (after the ship was in official waters off Vietnam) and that he was examined and found physically qualified for transfer from the vessel on August 19, 1965, one week before his honorable discharge from naval service. Information from the internet included in the file indicates that the Ozbourn sailed to the South China Sea in 1964 after North Vietnamese PT boats engaged American destroyers in the Gulf of Tonkin. After providing anti-submarine warfare (ASW) protection for TF 77 and after participating in a naval weapons demonstration, the Ozbourn returned to Long Beach, California for several months of maintenance, repairs and training operations. It was again deployed to provide gunfire support to the Western Pacific (Vietnam) on August 20, 1965. The Veteran's DD 215 reflects that the Veteran received the Vietnam Service Medal. In January 2010 and June 2010, VA issued a document, "Compensation and Pension Bulletin" that listed information regarding vessels identified as traveling in the "brown waters" of the Republic of Vietnam. The Veteran's ship is not among those listed. The list of ships was updated in 2012, but the Veteran's ship is still not listed. IV. Analysis Presumptive Service Connection As reviewed above, the evidence does not show that the Veteran had hypertension to any degree within the first year after discharge from service. Rather, his first documented diagnosis of record is in September 2007. Presuming the veracity of the Veteran's statements, that he was first diagnosed in 1976, this is still well after the one year presumptive period from his separation in 1965. Accordingly, presumptive service connection under 38 C.F.R. § 3.309(a) for chronic diseases is not warranted. As to presumption based upon Agent Orange exposure, hypertension is not included in 38 C.F.R. § 3.309(e) as a disease that has been associated with herbicide exposure. To the extent that the Veteran has observed that hypertension is a disease that is in the "limited and suggestive category" of conditions resulting from exposure to Agent Orange, the fact remains that there is no current presumption under the law that could afford service connection for his claim. Therefore, service connection is not warranted under that provision. Direct Service Connection Although presumptive service connection based on chronic diseases or herbicide exposure is not warranted, the Veteran is not precluded from establishing direct service connection with proof of direct causation. On review of the evidence above, the Board finds that direct causation is not established. Initially, the Board points out that the Veteran's hypertension was not present in service. As to the Veteran's claims regarding ingesting and absorbing Agent Orange through the water on board ship (and as to his wife's supportive statement), it is not clear to the Board whether the Veteran is competent to state whether the water he used in service was contaminated with herbicides. The Board is clear, however, that the Veteran served on a Blue Water ship that was off the shores of Vietnam both prior and subsequent to the Veteran boarding it. Furthermore, the Board is clear that the ship is not one of those recognized as being exposed to herbicides. Regardless, even presuming for the sake of argument that the Veteran was exposed to herbicides while serving in the Navy, the issue becomes whether there is credible evidence of a nexus between the exposure and the current disability. The Veteran has presented no medical opinion evidence in support of his assertions. That leaves the Board to consider the Veteran's and his wife's lay statements to that effect. The Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and that the Board must determine, on a case by case basis whether the subject of the Veteran's testimony is one as to which lay testimony is competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In this case, the Board finds that the subject of whether Agent Orange could cause hypertension is the type of internal, non-observable medical process as to which lay testimony is not competent. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In this Veteran's case, the disability at issue is hypertension, a complex disorder of the cardiovascular system, which is not readily observable by a lay person. Furthermore, the case involves the purported effects of specific chemicals on that system. Again, this is beyond the competency of a lay person. Thus, the Veteran's assertions and those of his wife are not competent in this regard, and there is no other evidence in support of the theory that Agent Orange consumed by the Veteran through the water on board the U.S.S. Ozbourn caused his hypertension. In sum, the Board has found the claimed hypertension was not present in service or manifested to a compensable degree within the first year after discharge from service, and is not etiologically related to active service. Accordingly, the criteria are not met for service connection on either a direct or presumptive basis, and the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. ORDER Entitlement to service connection for hypertension including as due to herbicide exposure is denied. REMAND The Board finds that further evidentiary development is necessary prior to decision on the Veteran's claim of entitlement to service connection for bilateral hearing loss disability. Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2012). The Veteran's STRs confirm that he underwent audiometric testing on entrance into service in August 1961 and two months after entry, in October 1961. The Board notes that prior to July 1966, VA reported audiometric test results under American Standard Associates (ASA) values. In July 1966, VA adopted the International Standards Organization (ISO) standard. Until November 1967, service departments continued to use the ASA values in audiometric results. In the audiometric findings below, the Veteran's results in service have been converted from ASA to ISO units. His testing revealed as follows: August 1961 HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 n/a 45 LEFT 15 10 15 n/a 55 October 1961 HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 15 35 LEFT 15 10 10 55 45 On these results, the Veteran exhibited hearing loss in both ears at the 4000 Hertz level on entry into service. In the October 1961 results, he exhibited hearing loss in the left ear at both the 3000 and 4000 Hertz levels. STRs further document a PULHES medical profile in October 1961 on the basis of this hearing test. The "PULHES" medical profile system is designed to reflect the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In this Veteran's case, his PUHLES was as follows: P U L H E S 1 1 1 2 3 1 This means that the Veteran's level of fitness for hearing and ears was one below the highest level of fitness, at 2. STRs reveal that the Veteran did not undergo objective audiological testing at separation in August 1965. Rather, a "whispered voice" test conducted. In June 2011, the Veteran underwent VA audio examination, at which time an audiologist reviewed the record in order to form an opinion as to etiology. Specifically, the examiner noted that the Veteran had a pre-existing hearing loss at 4000 Hertz bilaterally at enlistment, and that a subsequent examination showed hearing loss at 4000 and 3000 Hertz in the left ear. She further stated that since the enlistment examination did not test 3000 Hertz, it cannot be determined whether the hearing loss at 3000 Hertz was pre-existing or occurred during active duty. She concluded that without formal audiological testing at separation, she could not render an opinion as to etiology without resorting to speculation. The Veteran's representative urges that the opinion as to etiology of the Veteran's present bilateral hearing loss set forth in the June 2011 report of VA audiology evaluation is inadequate. The Board agrees. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." While the examiner did note the missing audiological examination at separation, the Board finds that this does not preclude an audiologist from opining on the evidence that is available, whether there is a nexus. In particular, although the 3000 Hertz frequency was not tested at entry but was tested in October 1961, the remaining frequencies were tested at both times and can be used for comparison, both with each other, and with the current level of audiological acuity. The Board also notes that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates both that the disease or injury existed before acceptance and enrollment, and that it was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002); see also, Wagner v. Principi, 370 F.3d 1089 (Fed. Cir., 2004). If the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection rather than for service-connected aggravation. Id. On this record, it is clear and unmistakable that the Veteran entered service with a degree of hearing loss bilaterally. With respect to whether there is clear and unmistakable evidence that it was not aggravated, the Board notes that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012); Green v. Derwinski, 1 Vet. App. 320 (1991). In this case, the Veteran's hearing acuity (i.e., his ability to hear) remained the same, or increased, as evidenced by the audiograms of record. Notably, the Veteran has not alleged an increase in severity in service. There is no other evidence referable to hearing acuity during service of record. The Board finds this to be clear and unmistakable evidence against aggravation in service, as there is no showing of an increase in severity. Therefore, the Veteran is presumed sound; his claim is for service connection (rather than for service-connected aggravation of a preexisting hearing loss), and the remaining issue is whether the Veteran's current hearing loss is medically related to his noted hearing loss in service. Therefore, the Veteran should be provided another VA examination to determine whether current bilateral hearing loss disability is etiologically related to service. If the examiner again determines that he/she cannot answer this question without resorting to speculation, the examiner must explain the basis of this inability to provide this requested opinion and identify precisely what facts could not be determined. In particular, the examiner must specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Accordingly, this claim is REMANDED for the following actions: 1. Schedule the Veteran for a VA audiology examination to determine the nature and etiology of his current bilateral hearing loss disability. The claims folder, including a copy of this remand, must be made available to and reviewed by the examiner. Any indicated studies must be performed. The Veteran's history of in-service and post-service noise exposure and hearing loss must also be obtained. Based on review of the file and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that the bilateral hearing loss disability is etiologically related to active service. The examiner is advised that the Board is aware that the Veteran had a preexisting hearing loss. However, since aggravation is not shown in service (as explained above), the claim is one for service connection, not service-connected aggravation. The examiner is asked to provide the underlying reasons for any opinion expressed. If the examiner is unable to provide any required opinion, he or she must explain why the opinion cannot be provided. For purposes of the opinion, the examiner should presume the Veteran is an accurate historian. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. The RO should undertake any additional development it determines to be warranted. 3. Then, the RO should adjudicate the issue on appeal in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs