Citation Nr: 1314909 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-28 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for bilateral cavus foot with degenerative changes. 2. Entitlement to a disability rating in excess of 20 percent for the right cavus foot disability with degenerative changes. 3. Entitlement to a disability rating in excess of 20 percent for the left cavus foot disability with degenerative changes. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to May 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this case was most recently before the Board in May 2012, it was remanded for further development. It is now before the Board for further appellate action. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. During the adjudication of the Veteran's increased rating claim for claw feet, the issue of entitlement to TDIU has in fact been raised by the Veteran, specifically in his May 2009 statement. The Board acknowledges that the RO adjudicated the Veteran's TDIU claim in November 2009. Despite this, the Court's holding in Rice requires that the Board consider the TDIU claim as part of his pending increased rating claim, and the Board has incorporated it as an issue on appeal. The Board also notes in this regard that the Veteran asserted during the August 2011 VA examination that he stopped working due to his disabilities of the feet. The issues of entitlement to an evaluation in excess of 20 percent for a right foot disability, an evaluation in excess of 20 percent for a left foot disability and entitlement to unemployability due to service-connected disabilities 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. For the entire period of this appeal, the Veteran's service-connected right foot cavus disability with degenerative changes has been manifested by moderately severe impairment. 2. For the entire period of this appeal, the Veteran's left foot cavus disability with degenerative changes has been manifested by moderately severe impairment. CONCLUSIONS OF LAW 1. For the entire period of this appeal, the criteria for an increased rating of 20 percent for a right foot disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). 2. For the entire period of this appeal, the criteria for an increased rating of 20 percent for a left foot disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Pursuant to VCAA, upon receipt of complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). The Veteran is currently assigned a 30 percent evaluation for his bilateral cavus foot disability with degenerative changes pursuant to Diagnostic Code 5278. However, the provisions of this code do not contemplate the impairment resulting from the degenerative changes. Accordingly, the Board is granting a 20 percent evaluation for the right foot and a 20 percent evaluation for the left foot pursuant to Diagnostic Code 5284, as this is advantageous to the Veteran, and remanding the issue of a higher evaluation for the left foot and right foot below. Therefore, discussion of VCAA notice is not necessary at this time. II. Entitlement to a disability rating in excess of 30 percent for bilateral cavus foot with degenerative changes. Applying the criteria to the facts of this case, the Board finds that a 20 percent evaluation in warranted for each foot under Diagnostic Code 5284. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Ratings shall be based, as far as practicable, upon the average impairments of earning capacity; however, the Secretary shall, from time to time, readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected disorders of the foot. The service-connected bilateral foot disability may be entitled to an evaluation in excess of 30 percent under Diagnostic Code 5276 (acquired flatfoot) and/or Diagnostic Code 5278 (acquired claw foot). See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Also, the Veteran's feet may be entitled to higher ratings under Diagnostic code 5284, which evaluates each foot separately. Under Diagnostic Code 5276, a 50 percent disability rating is warranted for bilateral pronounced acquired flat foot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276 (2012). Under Diagnostic Code 5278, a 50 percent disability rating is warranted for bilateral acquired claw foot (pes cavus) with marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, and marked varus deformity. 38 C.F.R. § 4.71a, DC 5278 (2012). Diagnostic Code 5284 applies to foot injuries. For severe injury, a 30 percent rating is for assignment. For moderately severe injury, a 20 percent rating is for assignment. For moderate injury, a 10 percent rating is for assignment. With actual loss of use of the foot, a 40 percent rating is for assignment. Words such as moderate and severe are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2011). It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). A September 2006 VA telephone record notes that the Veteran reported that his lower extremities were extremely weak and painful and the Veteran could hardly stand on them. A May 2007 telephone record showing communication between the Veteran and the VA noted that the Veteran had stiffness and soreness in both feet and that he can hardly walk. A May 2007 VA x-ray study noted a normal study with no bony abnormality seen. An August 2007 x-ray study noted a normal study with no bony abnormality seen. In August 2007, the Veteran was afforded a VA examination for his feet. The Veteran reported pain in his arches, sensation of heat in his feet, swelling, redness, stiffness, fatigability, weakness, and lack of endurance in his feet. He also reported weekly flare-ups of the foot during which he had 75 percent less function for one to two days. He noted that he was able to stand for 15 to 30 minutes and walk a quarter of a mile. He was treated with orthotic inserts and used a cane to walk. Upon examination of the left foot, there was painful motion on arch of left foot with pain on motion and objective evidence of tenderness on the hindfoot and midfoot. There was no evidence of swelling, instability, weakness, abnormal weight bearing, hammertoes, hallux valgus or rigidus, and vascular foot abnormality. There was no dorsiflexion of ankle with elevated arch/normal alignment of forefoot and hind foot. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones, or flatfoot. Upon examination of the right foot, there was no objective evidence of swelling, tenderness, instability, weakness, abnormal weight bearing, hammertoes, hallux valgus or rigidus, skin or vascular foot abnormality, malunion or nonunion of the tarsal or metatarsal bones, flatfoot, muscles atrophy of the foot. The examiner noted a high arch with normal alignment of archillees/forefoot and hindfoot toes in normal position bilaterally. There was objective evidence of painful motion of the hind foot and arch/midfoot. The Veteran's gait was normal. A May 2007 x-ray study noted bilateral pes cavus deformity, minimum scattered degenerative changes especially involving the first meta tarsal phalangeal joint. There was mild bilateral hallux valgus deformity. The examiner diagnosed the Veteran with bilateral cavus foot with degenerative changes A December 2010 VA treatment record notes complaints of foot pain. During the May 2007 Social Security Administration examination, the Veteran reported pain in his feet. A June 2007 VA treatment record notes a diagnosis of pes cavus deformity. A July 2007 VA treatment record shows that the Veteran was fitted for orthotics. A September 2007 VA treatment record notes that the Veteran was instructed about his custom inserts. March 2008 and August 2008 VA treatment records show that the Veteran was treated for foot pain with custom inserts. The chief of podiatry and a podiatry resident diagnosed the Veteran with rigid pes cavus deformity with bilateral fixed calcaneal varus. Varus of the forefoot and rearfoot were also noted. There was no contracture of digits, but skin lesions were noted. The Veteran was afforded another examination of his feet in March 2011. The Veteran reported that his feet hurt all of the time, and he treats them with pain medication. Specifically, he mentioned that his feet hurt in the center of the foot. He could walk a quarter mile before he becomes uncomfortable. He reported stiffness and weakness in his feet as well as lack of endurance on standing and while walking. Upon examination, the Veteran had bilateral cavus foot presentation, which is an anterior global cavus presentation. Upon palpation, there was no tenderness upon direct palpation of the ankle joint, subtalar joint, midtarsal joint or lesser metatarsophalangeal joints. There was limited eversion present as well as the dorsiflexion at the ankle was 0 degrees with the leg extended and +2 to 3 degrees with the knee flexed. There was no reduction of the forefoot anterior and global equines deformity. There was adequate range of motion of the metatarsophalangeal joint of the first or lesser digits bilaterally without discomfort. There was no appearance of claw toes or hammertoes upon loading of the forefoot as well as standing. There was no excessive inversion, anterior drawer sign or talar tilt present. The pulses were intact bilaterally. There were no lesions present. Upon standing, the Achilles tendon was 90 degrees for the weightbearing surface. The calcaneus was rectus to the weightbearing surface and without varus or valgus deformity present. The Veteran had high arches bilaterally, and he had a wide base of gait. There were palpable prominences to the lateral aspect of the calcaneus consistent with prominent peroneal tubercle, but there was no pain on palpation of the tubercle, and there was no discomfort or pain with range of motion on palpation of the peroneal tendons. There was no hammering of the digits present. There was possibly some mild subchondral sclerosis of the first metatarsophalangeal joint. The examiner did not specify if he was referring to both feet or not throughout the examination. The examiner diagnosed the Veteran with congenital bilateral cavus foot deformity. The examiner also noted that he did not see any significant degenerative arthritis in the radiographs or in the foot that would explain his symptoms. A March 2011 x-ray study of the right foot noted mild osteoarthritis changes of the first MP joint with decrease in hallux valgus since previous study and slight widening between the first and second phalanx. There was also mild dorsiflexion of the phalanges. There was a short fifth phalanx or little toe which is present on both the left and the right on a congenital basis. The little toes were deviated medially and overlapped the fourth toe on the AP standing view. There was also mild soft tissue prominence at the fifth metatarsal head without degenerative change of the right foot. X-ray of the left foot showed early osteoarthritis changes of the first metacarpal phalangeal joint. There was a short fifth phalanx or little toe with medial deviation and overlap of the fourth toe on AP standing view similar to findings on right foot. There was mild soft tissue prominence of the 5th metatarsal head. In December 2011, the Veteran reported tingling in toes, but the treatment record notes that this symptom was attributable to spinal stenosis. In January 2012, the Veteran was afforded a VA examination for his ankle disability. The examiner noted 20 degrees of varus of the forefoot bilaterally. Following the Board's May 2012 remand, the Veteran was afforded another VA examination in August 2012. The examiner found that there was no varus of either foot, dropped forefoot, or plantar fascial contracture. There were hammertoes on toes 2, 3, and 4 bilaterally. There was adductovarus deformity of both 5th toes. The hallux was not hammered on either foot. There were no callosities, only two small lesions which were not painful on exam. The examiner explained that the Veteran has cavus foot which refers to a foot with a higher arch most visible from the side. Varus in the foot refers specifically to the plantar aspect of the foot directed more medially as evidence by an inverted foot and an inverted heel. The Veteran does not have this deformity. The examiner explained that the terms cavus varus and cava varus are sometimes interchanged. The examiner found a dropped forefoot bilaterally as did the March 2011 examiner. The plantar fascia did not appear contracted. The examiner found mild hammertoe deformities of toes 2, 3, and 4 bilaterally, with slight contracture of the proximal interphalangeal and MP joints. The hammertoes are all reducible and flexible with the exception of the second left proximal interphalangeal joint, which cannot be fully reduced. The Board has reviewed all of the diagnostic codes pertaining to the feet to determine which diagnostic code is most appropriate. In this regard, the Board finds that Diagnostic Code 5278 is not the most appropriate in the Veteran's case because it does not consider symptoms of the Veteran's osteoarthritis of his feet which results in flare-ups that cause additional functional impairment. See the August 2007 VA examination report. The Board finds that Diagnostic Code 5284 is most appropriate. The Veteran's overall disability picture, including cavus foot and osteoarthritis, more nearly approximates moderately severe disability with respect to each foot. Moreover, although the Veteran does not have hammer toes in all toes, the August 2012 examination reported noted that the Veteran has hammer toes in several toes. A 20 percent evaluation for the right foot and 20 percent evaluation for the left foot under Diagnostic Code would take into consideration that the Veteran has hammer toes in several of his toes. Diagnostic Code 5284 for a moderately severe foot injury also accounts for limitation of function due to the Veteran's osteoarthritis. A 20 percent evaluation for each foot would also account for the Veteran's reports during the April 2007 examination that he has 75 percent less function of his feet in the form of additional limitation of motion or functional impairment during flare-ups. A 20 percent evaluation would also consider the Veteran's reports during the March 2011 VA examination that his feet were weak and required the use of a case in order to avoid falls. The Board notes the Veteran's lay statements in support of his claim, including descriptions of painful feet all the time and finds that he is competent to report the observable symptoms of his bilateral foot disability. Layno v. Brown, 6 Vet. App. 465 (1994). Accordingly, instead of evaluating the disability of the feet pursuant to Diagnostic Code 5278, the feet will be rated separately, and each assigned a 20 percent evaluation, for the entire period of time covered by this claim, under Diagnostic Code 5284. The issue as to whether a higher evaluation in excess of 20 percent for each foot and whether a total disability due to service connected disability is warranted are both addressed in the remand below. ORDER An evaluation rating of 20 percent for the service-connected right cavus foot with degenerative changes is granted. An evaluation rating of 20 percent for service-connected left cavus foot with degenerative changes is granted. REMAND The Board notes that although the Veteran was examined in August 2012, the examiner only answered the questions that the Board requested be answered, and the examiner did not provide a full examination report. The Veteran appears to now have hammer toes on several toes. See August 2012 VA examination report. For this reason, the Board finds that a new VA examination is warranted for his foot disabilities. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. During the adjudication of the Veteran's increased rating claim, the issue of entitlement to TDIU has in fact been raised by the Veteran, specifically in a May 2009 statement. While the TDIU claim was thereafter adjudicated, the Veteran reiterated during the August 2011 VA examination that he stopped working due to the feet disabilities. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim, and has incorporated it with the issue on appeal. TDIU may be awarded on either a schedular basis or an extraschedular basis. With respect to a schedular TDIU award, a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.26. In this case, service connection is in effect for a right foot disability, evaluated as 20 percent disabling, a left foot disability, evaluated as 20 percent disabling, chondroepiphysitis of the lateral ligament attachment of the right and left ankle, evaluated as 20 percent disabling for the left and 20 percent disabling for the right. He has a combined rating of 60 percent. After considering 38 C.F.R. § 4.26, the Veteran's disabilities meet the criteria for consideration of TDIU on a schedular basis. Therefore, the material issue is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 4.16; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board finds that the Veteran should be afforded a VA examination to determine the impact of his service-connected disabilities on his ability to work. In the August 2007 VA examination, the Veteran reported that he was unemployed for 10 to 20 years due to his foot and ankle disabilities. The Veteran should be notified as to how to substantiate a claim for TDIU. As such, details of the Veteran's unemployability, including previous work experience and special training, should be obtained. As the issue of TDIU may require further development based on what information the Veteran submits, the Board finds that this issue must be remanded prior to its consideration of the issue. Finally, VA has an obligation under the VCAA to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2012). The Veteran receives regular treatment at VA. Therefore, all relevant VA treatment records that have not yet been associated with the claims file should be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a claim for entitlement to TDIU. Additionally provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requested information. 2. Obtain and associate with the claims file outstanding records of VA treatment pertaining to the Veteran's service-connected disabilities 3. Ask the Veteran to submit any relevant private treatment records pertaining to any of his service-connected disabilities or an authorization form that would allow VA to request the records on his behalf. If, after making reasonable efforts to obtain named records the AMC/RO is unable to secure same, the AMC/RO must notify the Veteran and (a) identify the specific records the AMC/RO is unable to obtain; (b) briefly explain the efforts that the AMC/RO made to obtain those records; (c) describe any further action to be taken by the AMC/RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. After the above has been accomplished to the extent possible, schedule the Veteran for a examination. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to identify all subjective and objective manifestations of the Veteran's right and left cavus foot with degenerative changes disabilities. The examiner should fully describe any additional functional loss due to pain, weakness, fatigue or incoordination to include on flare-ups and repetitive use. The examiner should also provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's service-connected disabilities (e.g., right and left cavus foot with degenerative changes and chondroepiphysitis of the lateral ligament attachment of the right and left ankle) render the Veteran unable to obtain and/or maintain gainful employment, given his level of education and work history. The Veteran's age may not be considered, and whether the Veteran was retirement eligible at the time he stopped working is also not relevant in determining whether his current service-connected disabilities are of such severity that it renders him unable to obtain or maintain gainful employment. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. Please provide a complete explanation for the opinion. 5. Ensure that the information provided in the examination report(s) satisfies the criteria above and, if not, return the report(s) as insufficient. Then readjudicate the Veteran's claim for a higher evaluation for his right foot disability, claim for a higher evaluation for left foot disability and his TDIU claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant 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). ______________________________________________ S. S. Toth Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs