Citation Nr: 1310315 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 11-09 665 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to a rating in excess of 20 percent earlier than March 4, 2011, for lumbosacral spine degenerative disc disease and facet degenerative joint disease with bilateral sacroiliac dysfunction. 2. Entitlement to an effective date earlier than March 4, 2011 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from October 1955 to July 1958. This appeal comes to the Board of Veterans' Appeals (Board) from July 2010 and May 2011 rating decisions. Here, the Veteran was granted service connection for a back disability by a July 2010 rating decision which assigned a 10 percent rating as of the date his claim was received (January 7, 2010). The Veteran filed a notice of disagreement, seeking a higher rating for his back disability and in a March 2011 rating decision, his back rating was increased to 20 percent from the date of claim and to 40 percent as of March 4, 2011. Later in March 2011, the Veteran submitted a statement indicating that he was withdrawing his back appeal as he was satisfied with the decision. However, approximately two weeks later he submitted a statement asking that an earlier effective date be assigned for the 40 percent rating. Thus, while he is not seeking a higher rating for his service connected back disability, he wants the 40 percent rating earlier. The Veteran has also been granted TDIU, and he believes that an earlier effective date for his back rating would allow his TDIU to be granted earlier. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 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 an earlier effective date for TDIU 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. Prior to March 4, 2011, even considering functional limitation caused by pain, weakness, stiffness, fatigability, and lack of endurance, etc., the Veteran had forward flexion in his back that greatly exceeded 30 degrees. 2. During the course of his appeal, the Veteran has not been prescribed bed rest to treat his service-connected back disability at any time, and he has not been diagnosed with either ankylosis of the spine or a spinal fracture. 3. Prior to March 4, 2011, the Veteran denied any symptoms of radiating pain to the left lower extremity, and there was no objective evidence of impaired reflexes or sensation. Radiculopathy of the left lower extremity was not diagnosed until March 2011. CONCLUSION OF LAW Criteria for a disability rating in excess of 20 percent earlier than March 4, 2011, for lumbosacral spine degenerative disc disease and facet degenerative joint disease with bilateral sacroiliac dysfunction, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5237, 5243, 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. As noted in the introduction, the Veteran's service connected back disability is rated at 20 percent from the date his claim was received (January 7, 2010) until the date a VA examination established that the back disability had worsened (March 4, 2011) when a 40 percent rating was assigned. It is noted that the Veteran has also been found to have radiculopathy of the left lower extremity as a result of his back disability which was rated as noncompensable prior to April 29, 2011 and at 10 percent since that time. The evidence of record here primarily consists of statements from the Veteran and his representative, reports from two VA back examinations, several unrelated VA examination reports, and VA and private treatment records. However, the private treatment records, while discussing the Veteran's back, date from years before the Veteran filed his claim and are therefore not relevant to this appeal. The VA treatment records do not discuss any back treatment or symptoms, beyond the occasional acknowledgement that the Veteran experiences symptoms such as back pain. As such, these records will not be further discussed. Following the receipt of his claim for service connection, the Veteran was provided with a VA examination in July 2010. The examiner recounted the Veteran's in-service motor vehicle accident, as well as his 2005 back surgery. The Veteran stated that the surgery did help to alleviate both his severe back pain as well as his left lower extremity radiculopathy. At the time of the examination, the Veteran denied any symptoms of radiculopathy impacting his left leg. He described back flare-ups as moderate to moderately severe, but did not use a cane or brace of any kind. He perceived his back condition to be gradually worsening, but denied any bowel or bladder incontinence, and no ankylosis was found. The Veteran walked with an antalgic gait and experienced tenderness and pain on motion, but there was no spasm, atrophy weakness or guarding. The examiner stated that the muscle spasm/localized tenderness/guarding was severe enough to be responsible for an abnormal gait or abnormal spinal contour. Reflexes were hypoactive on knee and ankle jerk bilaterally, but both sensory testing and motor testing were normal. On range of motion testing, the Veteran demonstrated forward flexion from 0-65 degrees with some tenderness beginning at 55 degrees. The examiner noted that the Veteran did experience an increase in pain with repetitive motion, but found that repetitive motion did not cause additional weakness, excess fatigability, incoordination, lack of endurance or additional loss of motion. X-rays showed moderate degenerative changes in the lower lumbar spine. The Veteran's back was noted to cause difficulty with bending, lifting, twisting, and prolonged standing. The Veteran was provided with a second VA examination in March 2011 at which he again reported worsening back pains. The Veteran reported occasional radiation of pain down his left leg as well as daily pain in his lower back. Medication reportedly helped. The Veteran's posture was normal and symmetrical. No abnormal spinal curvatures were seen. There was no spasm, atrophy weakness or guarding, but the Veteran did experience pain on motion. Unlike at the previous VA examination, the examiner concluded that muscle spasm/ guarding/localized tenderness was not severe enough to be responsible for an abnormal gait or abnormal spinal contour. Reflexes were normal on knee and ankle jerk bilaterally. Motor testing was also normal. The Veteran specifically denied any incapacitating episodes of back pain in which bed rest was prescribed by a physician. Deep tendon reflexes were intact, as were ankle jerks. Pulses and sensation were intact in both lower extremities. No muscle wasting or muscle loss was noted. On range of motion testing, the Veteran demonstrated forward flexion from 0-40 degrees. With repetitive motion his forward flexion decreased to 35 degrees and then to 30 degrees with moderate pain, moderate to severe weakness and fatigue, but no incoordination was seen. Pain had the main functional impact. Radiculopathy was noted in the left lower extremity. Regulations provide that back disabilities are to be rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 1 week, but less than 2 weeks, during the past 12 months; a 20 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes with a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months; a 40 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months; and a 60 percent rating is assigned when intervertebral disc syndrome causes incapacitating episodes having a total duration of at least 6 weeks, during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). In this case, the Veteran has been diagnosed with disc disease, but it has not been shown that bed rest has been prescribed at any time during the course of his appeal. In fact, at his March 2011 VA examination, the Veteran specifically denied having been prescribed bed rest. VA treatment records similarly do not show prescribed bed rest. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lower back disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless either ankylosis or a fractured spine is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. As noted the Veteran is seeking a rating in excess of 20 percent earlier than March 2011. The Veteran's back rating was increased from 20 percent to 40 percent based on range of motion testing at the March 2011 examination which showed forward flexion of the Veteran's back to be limited to 30 degrees of flexion following repetitive motion. Conversely, at the July 2010 VA examination, the Veteran demonstrated forward flexion which greatly exceeded 30 degrees, even after repetitive motion and contemplating factors such as pain, weakness, stiffness, fatigability, and lack of endurance. A 40 percent rating requires forward flexion to be limited to 30 degrees or less. Here, prior to the March 4, 2011 VA examination, the only other range of motion testing of the Veteran's back was conducted at the July 2010 examination when he demonstrated forward flexion to 65 degrees. As such, the Veteran's demonstrated range of motion clearly exceeded what is required for a rating in excess of 20 percent prior to March 2011. In reaching this conclusion, the Board did consider whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In this case, however, at the July 2010 examination, range of motion testing showed no objective evidence of pain until well after 30 degrees of forward flexion, as the examiner only noted "some tenderness" beginning at 55 degrees. Moreover, while repetitive motion may have caused some increase in pain, it did not cause any additional loss of motion; and even if flexion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). As such, the Board does not find that the Veteran's range of motion was so functionally limited so as to warrant a rating in excess of the 20 percent that was already assigned.\ Aside from ratings based on limitation of motion or on incapacitating episodes, the schedular rating criteria only provide for a back rating in excess of 20 percent when either ankylosis of the spine or a spinal fracture is shown, but neither has been shown on examinations in this case, including with x-rays, or when neurologic impairment is shown and combined with orthopedic impairment. Here, the Veteran has been service connected for radiculopathy in his left lower extremity secondary to his back disability. A 10 percent rating was assigned from April 2011, which was the date of a VA examination showed compensable symptoms. Under Diagnostic Code 8520, incomplete mild paralysis of the sciatic nerve warrants a 10 percent rating, while incomplete moderate paralysis warrants a 20 percent rating, incomplete moderately severe paralysis a 40 percent rating, and severe incomplete paralysis with marked muscular atrophy a 60 percent rating. Complete paralysis of the sciatic nerve warrants an 80 percent rating. Again, the only time period for consideration here is that prior to March 4, 2011. The Veteran agreed with the 40 percent rating assigned as of that date for the orthopedic manifestations of his back disability, and he has never indicated disagreement with the ratings assigned to the neurological manifestations. Prior to March 2011, radiculopathy of the left lower extremity was not diagnosed. The Veteran specifically denied experiencing any symptoms of radiculopathy impacting his left leg at his January 2010 VA examination and reported that his back surgery had improved his radiculopathy symptomatology. Additionally, both sensory testing and motor testing were normal at that time. Moreover, even with complaints of radiating left lower extremity pain at the March 2011 examination, the Veteran's reflexes were normal on knee and ankle jerk bilaterally, motor testing was normal, deep tendon reflexes were intact, pulses and sensation were intact in both lower extremities, and no muscle wasting or muscle loss was noted. Accordingly, there is no basis upon which to assign a compensable rating for radiculopathy prior to March 2011. The Veteran has contended that the 40 percent rating was warranted earlier than March 2011, because his back condition had not changed since his 2005 back surgery. However, at both the VA examination in 2010 and the VA examination in 2011, the Veteran specifically reported that his back had in fact worsened. Additionally, the range of motion findings at the 2011 examination did show increased limitation of motion from what was demonstrated in 2010, and it was for that reason that the higher 40 percent rating was assigned. Moreover, the criteria used to evaluate a back disability are objective in nature, and based on physical examinations that were conducted throughout the course of the appeal. As such, the Veteran's generalized allegation alone that his back had remained functionally the same since 2005 is insufficient to overcome the objective evidence listed above which proves otherwise. As described, there is no basis upon which to assign a schedular rating in excess of 20 percent for the Veteran's service connected back disability earlier than March 2011. With regard to claims for increased ratings, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o). However, disability compensation may also be awarded on the earliest date it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Here, the Veteran was assigned a 40 percent rating for his back on the earliest date that he met the criteria for such a rating. As such, an earlier effective date is not warranted for the 40 percent rating. The Board has also considered whether referral for consideration of an extraschedular rating was warranted for the period prior to March 2011, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's back disability prior to March 2011 that would render the schedular criteria inadequate. The Veteran's main symptoms were pain and limitation of motion, both of which were specifically contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for his back was granted. He then appealed the downstream issue of the effective date that was assigned for an increased rating. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. Regardless, another letter was sent to him in March 2011 which informed him relevant evidence would be that showing his lumbar spine condition had increased in severity. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained VA outpatient treatment records, and the Veteran submitted statements on his behalf. Private treatment records were obtained from 2005, and there was no indication that the Veteran received any private back treatment during the course of his appeal. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A disability rating in excess of 20 percent earlier than March 4, 2011, for lumbosacral spine degenerative disc disease and facet degenerative joint disease with bilateral sacroiliac dysfunction, is denied. REMAND In this case, the Veteran has been granted TDIU as of March 4, 2011, the date he first met the schedular rating criteria for a TDIU. While the Veteran did not specifically file a claim for TDIU, the RO concluded that he had stopped working years earlier and had cited headaches (a condition for which he is service connected) as one of the reasons for his retirement, the RO thus inferred that a claim for TDIU had been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It is noted that the Veteran's application for VA benefits from which the TDIU claim was inferred was received January 7, 2010. Here, the Veteran believes that his TDIU should date from January 7, 2010. A TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to March 4, 2011, the Veteran was service connected for a lower back disability (rated 20 percent), for post-concussive headaches (rated 30 percent), for degenerative joint disease of the left knee (rated 10 percent), for degenerative joint disease of the right knee (rated 10 percent), for tinnitus (rated 10 percent) and for bilateral hearing loss (rated as noncompensable). The Veteran's combined VA disability rating prior to March 4, 2011 was 60 percent. As such, he did not meet the schedular criteria for a TDIU prior to that date. However, for those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should first be referred to the Director of Compensation and Pension for extraschedular consideration. 38 C.F.R. § 4.16(b). In this case, the Veteran retired in 1997 after working for a number of years. At a VA examination in July 2010, the Veteran stated that he had to retire early because of his headaches, as well as the fact that he started to lose his hearing. However, while it is not disputed that the Veteran is retired, it was noted at the examination that the Veteran and his wife had traveled quite a bit, that he had served as a treasurer at his church for eight years, and that he did a lot of day trading of stocks. As such, it is unclear whether the Veteran would be considered unable to obtain or maintain substantially gainful employment. At another examination in July 2010, the examiner noted that the Veteran had retired in 1997 and reported that the cause was eligibility by age or duration of work, medical/physical problem (headaches). In an April 2011 statement, the Veteran stated that he had retired when it got to the point that his migraines, back pain, and ringing in the ears were interfering with his work as an accountant. He asserted that the combination of advancing age, along with his health problems was causing fatigue, loss of energy, stress, depression, mood swings, irritability, and an inability to concentrate. The Veteran asserted in his March 2012 substantive appeal that he had retired at 58, because he felt that he could not continue his work efficiently as a result of his service connected medical problems. However, no medical opinion is of record specifically addressing whether the Veteran's service connected disabilities were of such severity as to preclude him from obtaining or maintaining any gainful employment. A retrospective medical opinion may be required to determine whether, and if so when, it can be concluded that a veteran's service-connected disabilities alone prevented him from obtaining and maintaining substantially gainful employment. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). This should be done. Accordingly, the case is REMANDED for the following action: 1. Have an appropriate VA clinician review the Veteran's claims folder, including this remand, to determine the impact the Veteran's service-connected disabilities as a whole had on his ability to obtain and maintain substantially gainful employment between January 7, 2010 and March 4, 2011. If the Board's question cannot be answered without an examination, one should be scheduled. The examiner should provide an opinion as to whether, without taking his age into account, it is at least as likely as not (50 percent or greater) that the Veteran's service connected disabilities (back, headaches, knees, tinnitus, and bilateral hearing loss) alone were of such severity as to preclude him from obtaining or maintaining any gainful employment (consistent with his education and occupational experience) between January 7, 2010 and March 4, 2011. 2. If, and only if, the examiner concludes that it is at least as likely as not that the Veteran's service connected disabilities alone precluded him from obtaining or maintaining any gainful employment between January 7, 2010 and March 4, 2011; the Agency of Original Jurisdiction (AOJ) should, consistent with the provisions of 38 C.F.R. § 4.16(b), submit the Veteran's claim to the Director of Compensation and Pension Service for consideration of entitlement to TDIU benefits on an extra-schedular basis between January 7, 2010 and March 4, 2011. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs