Citation Nr: 1318420 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-08 777A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for depressive disorder. 2. Entitlement to an effective date earlier than July 11, 2007, for the grant of service connection for sleep apnea, to include on the basis of clear and unmistakable error. 3. Entitlement to service connection for tinea versicolor. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from May 1999 to February 2003. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2009 rating decision, the RO denied service connection for tinea versicolor and an earlier effective date for the award of service connection for sleep apnea, including on the basis of clear and unmistakable error. In January 2010, the Veteran filed a notice of disagreement with the September 2009 rating decision. In March 2011, a statement of the case was issued and a substantive appeal was received in April 2011. In an August 2011 decision, the RO granted the Veteran service connection for depressive disorder, assigning an initial 10 percent disability rating. In September 2011, the Veteran filed a notice of disagreement with the initial rating assigned. The RO issued a statement of the case in January 2012, and a substantive appeal was received in January 2012. The issue of entitlement to an initial rating in excess of 10 percent for depressive disorder is addressed in the remand that follows this decision. Please note that 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). FINDINGS OF FACT 1. A claim of entitlement to service connection for sleep apnea was denied by a RO decision in August 2005; the Veteran did not appeal that decision. 2. The Veteran filed a petition to reopen the previously denied claim for service connection for sleep apnea that was received by the RO on July 11, 2007. 3. The RO's August 2005 decision represents a reasonable application of extant law to the facts that were then known; there was a tenable basis in the record for the RO to deny service connection for sleep apnea, and the RO's determination constituted a reasonable exercise of rating judgment. 4. In September 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the claim of service connection for tinea versicolor is requested. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 11, 2007, for the grant of service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400 (2012). 2. The RO did not commit clear and unmistakable error in the August 2005 rating decision in which it denied the Veteran's claim for service connection for sleep apnea. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105(a) (2012). 3. The criteria for withdrawal of a Substantive Appeal by the appellant on the issue of service connection for tinea versicolor have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In May 2009, the RO issued the Veteran a VCAA letter with regard to his claim for an earlier effective date. Such letter predated the September 2009 rating decision that denied the claim for an earlier effective date for the grant of service connection for sleep apnea. See id. The letter notified the Veteran of what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence will be obtained by VA. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). This earlier effective date claim arises from his disagreement with the effective date assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, in May 2009 the Veteran was issued notice pertaining to his claim for an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of the VCAA. The evidence of record contains the Veteran's submissions pertaining to his claim of service connection relevant to the claim for an earlier effective date, as well as VA and private post-service medical records. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process, and has noted that there are no additional relevant documents in the Virtual VA file not already contained in the paper claims file. There is no indication of relevant, outstanding records that would support the Veteran's claim for an earlier effective date. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue of entitlement to an earlier effective date. Further, the Board finds that the VCAA is not applicable to the Veteran's claim of clear and unmistakable error (CUE) in the prior rating decision, as a matter of law. The Court has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001)(en banc) (holding that VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding that VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). Service Connection for Tinea Versicolor Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2003). The appellant withdrew this appeal in September 2011, prior to the promulgation of a decision, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and the claim of service connection for tinea versicolor is dismissed. Clear and Unmistakable Error Regarding the Veteran's clam of CUE in the August 2005 rating decision that denied the Veteran's claim for service connection for sleep apnea, the Board acknowledges that the Veteran contends that clear and unmistakable error was committed in the decision due to what he claims was an inadequate VA examination conducted in May 2005. The Veteran contends that, had the examination been adequate, he would have been diagnosed with sleep apnea at that time and service connection would have been granted. VA rating decisions that are not timely appealed are considered final and binding in the absence of a showing of CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2012). CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See, e.g., Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 405 (1999); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Court has addressed the question of determining when there is CUE present in a prior decision. In Russell v. Principi, 3 Vet. App. 310 (1992), the Court propounded a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort that, had it not been made, the outcome would have been manifestly changed at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. at 313- 14; see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999). The Court has also stated that CUE is a type of error in which reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell, 3 Vet. App. at 313-14. Mere disagreement as to how the facts were weighed or evaluated is not CUE. Eddy v. Brown, 9 Vet. App. 52, 57 (1996). In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error. Id. at 43. The Court noted that CUE is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Id. The Court further indicated that in order to raise a valid claim of CUE, the Veteran must specifically indicate what the error is and that unless it is the type of error that, if true, would be CUE on its face, the Veteran must provide persuasive reasons why the decision would have been manifestly different but for the error. Id. at 44. The Court stated that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Id. Examples of situations that are not CUE are a changed diagnosis (a new medical diagnosis that "corrects" an earlier diagnosis considered in a decision), the VA's failure to fulfill the duty to assist, and/or evaluation of evidence (a disagreement as to how the facts were weighed or evaluated). See, e.g., 38 C.F.R. § 20.1403(d) (2012). The Court has held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. Similarly, broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE. Fugo, 6 Vet. App. at 44. In addition, the Court has held that VA's breach of its duty to assist cannot form a basis for a claim of CUE. Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (holding that VA's breach of duty to assist caused incomplete record but not incorrect record). With respect to claims based on CUE, the Board notes that the provisions of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) are not applicable. See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (2001)). In Livesay, the Court noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process. Because the Veteran is not pursuing a claim for benefits, but rather is collaterally attacking a prior final decision, the duties to notify and assist as set forth in the VCAA are not applicable. 15 Vet. App. at 178-79. In regards to the rating decision issued in August 2005, the Veteran contends that the RO should have granted service connection at that time for his sleep apnea. He argues that the VA examination provided to him in May 2005 did not include a clinical sleep study and thus was inadequate when it failed to diagnose him with sleep apnea. Had the proper clinical sleep study been conducted at the May 2005 VA examination, the Veteran contends, he would have been diagnosed with sleep apnea at that time, which would have led to a grant of service connection in the August 2005 rating decision. The Board has reviewed the evidence of record at the time of the August 2005 rating decision and the law extant at that time and concludes that the application of the law to the facts in this case is against a finding that clear and unmistakable error was committed by the RO in the decision when it denied entitlement to service connection for sleep apnea. Whether the Veteran had sleep apnea for which service connection could be granted at the time of the August 2005 rating decision was reasonably debatable. The Veteran stated that he was diagnosed with sleep apnea while in service but had no time for a sleep study to be conducted before he separated from active duty. The Veteran's service treatment records reflect that he was seen in December 2002 for complaints of snoring; at that time, a diagnosis of rule-out sleep apnea was considered, but no definite diagnosis was made, and no sleep apnea was found at his January 2003 separation examination. Report of the May 2005 VA examination reflects that the Veteran underwent an in-home sleep study, which revealed snoring but no diagnosed sleep apnea. The provisions of 38 C.F.R. § 3.303 in effect in 2005 provided that service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in active military service. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2005). However, although the Veteran had symptoms of sleep apnea such as snoring and daytime somnolence, he had not been assigned a definitive diagnosis of sleep apnea at the time of the August 2005 rating decision. Thus, whether the Veteran had a current disability at the time of the August 2005 rating decision is debatable. In other words, the Board cannot state that the claim should have been undebatably granted based upon the evidence of record at that time. Rather, the Board finds that a reasonable adjudicator could have determined that the Veteran did not have sleep apnea related to service at the time of the August 2005 denial of his claim. This degree of uncertainty, coupled with the negative findings of the May 2005 VA examiner, cannot constitute clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (a mere disagreement with how the evidence was weighed does not constitute clear and unmistakable error). Further, with regard to the Veteran's central contention concerning the adequacy of the May 2005 VA examination, the Board notes that the failure to provide an adequate examination would, at worst, constitute an incomplete record and/or a breach of the duty to assist, which the Court has clearly established does not constitute a valid claim of clear and unmistakable error. Cook v. Principi, 318 F.3d 1334, 1336-47 (Fed. Cir. 2002); Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). In short, the Board concludes that the August 2005 rating decision constituted a reasonable exercise of rating judgment under the law as it then existed. That the Veteran would have the Board weigh the evidence differently, or even if the Board would have decided differently, does not create a basis for finding CUE. The 2005 judgment will not be disturbed now by finding CUE. The Board notes that the determinative question in this case is not whether it would have been reasonable for an adjudicator to have granted the Veteran service connection for sleep apnea in August 2005. Rather, the question at this stage is whether, given the law extant at the time, and the evidence then of record, it is absolutely clear that a different result should have ensued. Here, for the reasons stated above, the Board must answer that question in the negative. Criteria & Analysis: Earlier Effective Date Generally, except as otherwise provided, the effective date of an evaluation and on an original claim, a claim reopened after final disallowance, or a claim for increase will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. It is well established that the effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See Nelson v. Principi, 18 Vet. App. 407, 409 (2004; Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215 (1993) (holding that an award granted on a reopened claim may not be made effective prior to the date of receipt of the claim). The Veteran was originally denied service connection for sleep apnea by a rating decision issued by the RO in August 2005. He did not appeal that decision, and it consequently became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2012). As such, new and material evidence was required to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Veteran is seeking an effective date prior to July 11, 2007, for the award of service connection for sleep apnea. He contends that the effective date of the service connection award should be earlier than the assigned date of July 11, 2007. Specifically, he contends that the effective date should be in 2005, from the date on which he initially filed a claim for service connection for sleep apnea. In that connection, the Veteran argues that the VA examination he was given in connection with the 2005 claim was inadequate and that if he had been given a more comprehensive examination, sleep apnea would have been diagnosed in 2005, leading to a grant of service connection at that time. The claim on which the current appeal is based was received on July 11, 2007. The petition to reopen was granted, and the Veteran was awarded service connection for sleep apnea in a November 2008 rating decision issued by the RO. The effective date of the award of service connection was established as July 11, 2007-the day the RO received the Veteran's petition to reopen. Here, the evidence shows that there is a final disallowance in August 2005. The evidence also shows that the date of receipt of the claim to reopen was July 11, 2007, and that it is a claim re-opened after final disallowance. As to the Veteran's claim that the May 2005 VA examination was an inadequate basis on which to base a denial, the Board notes that the Veteran did not raise this objection at the time of the August 2005 rating decision; indeed, he did not file a notice of disagreement or in any way indicate that he disagreed with the decision. There is simply no evidence in the record to suggest that the Veteran filed any claim of service connection for this disability after the 2005 denial and before the July 2007 claim. In light of the foregoing, the earliest effective date for award of service connection for the Veteran's sleep apnea is the presently assigned date of July 11, 2007. The Board notes further that the date on which the Veteran initially filed a claim for service connection is not relevant in the present context. That application for benefits resulted in a denial and is final. In this case, July 11, 2007-the date of receipt of the application to reopen-is the earliest date that service connection may be awarded. Because the RO denied the Veteran's initial claim in an August 2005 decision that was not appealed and had become final, the date of filing of that claim is not applicable to the assignment of an effective date. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against this claim. Although the Veteran contends that the effective date for the grant of service connection should be earlier than July 11, 2007, the record presents no evidentiary basis for the assignment of an earlier effective date. The governing legal authority is clear and specific in cases such as this, and VA is bound by it. As such, the claim for an earlier effective date is denied. ORDER Clear and unmistakable error was not committed in an August 2005 rating decision that failed to award service connection for sleep apnea; the appeal of this issue is denied. An effective date prior July 11, 2007, for the grant of service connection for sleep apnea is denied. The claim of service connection for tinea versicolor is dismissed. REMAND In March 2010 and March 2011, the Veteran underwent VA examinations pertaining to his service-connected depressive disorder. Reports of both examinations found his depressive disorder to have been worsened by his service-connected sleep apnea. In particular, the March 2011 VA examiner found that the Veteran's depressive symptoms of fatigue and low energy were worsened by his sleep apnea. However, neither VA examiner provided evidence concerning a baseline level of severity of the depressive disorder. VA regulations establish that, when granting service connection for a disability on the basis of aggravation by a service-connected disability, such as was done in this case, such a baseline is to be established by medical evidence establishing the baseline level of severity of the non-service-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. In addition, statements submitted from the Veteran and his representative indicate that this disability has worsened. Thus, in light of the fact that the most recent VA examination was conducted in 2011 and due to the Veteran's reported increased symptomatology and the lack of findings concerning the baseline level of psychiatric disability not due to aggravation by sleep apnea, the Board has determined that the Veteran should be afforded another VA examination to assess the current nature and severity of his depressive disorder, as well as a baseline level of severity of his depressive disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, while on remand, updated VA treatment records should be obtained from the VA Medical Center (VAMC) in Salt Lake City, Utah-or any other VAMC at which the Veteran reports having received treatment-for the period December 26, 2012, to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be requested to complete an appropriate release (VA Form 21-4142) pertaining to any private medical providers who have treated him for his psychiatric disability. 38 C.F.R. § 3.159(c)(1). In view of the foregoing, the case is REMANDED for the following action: Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. 1. Contact the Veteran and request that he identify all private medical providers that have provided treatment for his depressive disorder and that he complete an appropriate release (VA Form 21-4142) pertaining to all identified medical providers. Attention is specifically made to the Veteran's claim of treatment by Dr. Fiddler from March 2011 to present and a request should be made for Dr. Fiddler's complete treatment records. Request the entirety of the Veteran's treatment records from the identified medical providers. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's updated treatment records from the Salt Lake City VAMC, or any other VAMC at which the Veteran has received treatment, from December 26, 2012. 3. After all outstanding treatment records have been associated with the claims file, the Veteran must be scheduled for a VA psychiatric examination to determine the current severity of his depressive disorder. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. The examiner should be asked to comment on the severity of the Veteran's depressive disorder, and specify the degree of occupational or social impairment due to his service-connected depressive disorder. Examination findings should be reported to allow for evaluation of depressive disorder under 38 C.F.R. § 4.130, and the examiner must specifically comment on any difficulty establishing and maintaining effective work and social relationships due to his depressive disorder. A GAF score and an analysis of its meaning must be provided. The examiner should specify the baseline of psychiatric disability prior to aggravation by the service-connected obstructive sleep apnea, and the permanent, measurable increase in psychiatric disability resulting from the aggravation. Refer to the findings from the March 2010 and 2011 VA examinations and identify the psychiatric symptoms and their severity caused by the service-connected obstructive sleep apnea. A complete rationale for any conclusions reached should be included. 4. After completion of the above, review the expanded record and determine if an initial increased rating is warranted for depressive disorder. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs