Citation Nr: 1323095 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-13 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for chondromalacia of the left knee. 2. Whether new and material evidence has been received to reopen a claim for service connection for chondromalacia of the right knee. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 4. Entitlement to a temporary total rating based on convalescence beyond December 11, 2009, under 38 C.F.R. § 4.30. 5. Entitlement to an initial rating in excess of 20 percent for cervical spondylosis, status post C7 through T1 foraminotomy and disectomy (cervical spine disability). 6. Entitlement to an initial rating in excess of 10 percent for right upper extremity radiculopathy, due to cervical spine disability. 7. Entitlement to an initial rating in excess of 10 percent for left upper extremity radiculopathy, due to cervical spine disability. 8. Entitlement to an initial rating in excess of bilateral neural foramina stenosis of the lumbar spine, degenerative spine disease (lumbar disability). 9. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy, due to lumbar spine disability. 10. Entitlement to an effective date for service connection prior to February 1, 2010, for cervical spine disability. 11. Entitlement to an effective date for service connection prior to September 10, 2008, for right upper extremity radiculopathy. 12. Entitlement to an effective date for service connection prior to September 10, 2008, for left upper extremity radiculopathy. 13. Entitlement to an effective date for service connection prior to September 10, 2008, for lumbar spine disability. 14. Entitlement to an effective date for service connection prior to September 10, 2008, for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Kenneth Lavan, Attorney at Law ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION This matter initially comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2009 from a Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as noted herein. The Veteran was scheduled to appear at a hearing before the Board in Washington D. C. but correspondence in June 2012 from the Veteran's attorney reflects that the Veteran wished to cancel that hearing and did not wish the hearing to be rescheduled. See 38 C.F.R. § 20.702(e) (2010) (a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing but a request for a hearing may not be withdrawn by an appellant's representative without the consent of the appellant). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Initially, the Board notes that a review of the claims file revealed that two documents relating to other veterans were erroneously misfiled in the claims file of the Veteran in the instant case. However, none of these documents were evidentiary in nature but, rather, addressed procedural matters. One was a March 2011 notice of disagreement (NOD) by an attorney representing another Veteran as to a denial of service connection for a low back disorder (and, in the case now before the Board, service connection for a low back disorder was granted by an October 2011 rating decision). The other document was a request by a veteran in another case asking for a hearing as to an issue of VA severance of pay recoupment (and, in the case now before the Board, the Veteran cancelled a Board hearing in Washington, DC, scheduled in June 2012). Thus, it is clear that neither of these documents had any effect or impact upon either the adjudications in this case or the required appellate procedural steps, or otherwise impacted upon any due process considerations that might have adversely impacted the Veteran in this case. Those documents have now been removed from the Veteran's claims file and forwarded to the RO for appropriate action. See Board of Veterans' Appeals Chairman's Memorandum 01-06-20 (July 2006). The Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. Procedural History Due to the complexity of the issues on appeal the procedural history of this case will be set forth. August 1999 Rating Action The Veteran filed a claim in October 1998 for service connection for knee pain and back disability. His address was in Milledgeville, Georgia. He failed to attend a VA examination scheduled in October 1998. A copy of the notice sent to the Veteran is not on file (apparently having been electronically generated.) The Board notes that, although there is no copy of the notice sent by VA to the Veteran of the scheduled examinations, "there is no requirement for that document to be contained in the record for the presumption of regularity to apply." Khyn v. Shinseki, 23 Vet. App. 335, 338 (2010). Rather, the presumption of regularity, under which it is presumed that government officials have properly discharged their official duties, applies where the RO followed the regular process for scheduling an examination and notifying the Veteran of that examination and there is no indication that the notice was sent to an incorrect address. Id. at 339. On the other hand, a mere assertion of nonreceipt of a VA decision, without more, does not establish the "clear evidence" needed to rebut the presumption of regularity of a VA mailing. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); cf. Chute v. Derwinski, 1 Vet. App. 352, 353 (1991) (per curiam order) (holding that claimant's assertion of nonreceipt of Board decision was not sufficient by itself to rebut presumption of regularity, but that such assertion together with evidence of claimant's having made inquiries to veterans service officer after decision had been mailed and lack of evidence from VA of having mailed decision rebutted such presumption). In Ashley, Id., the Court stated as follows: Where an appellant submits clear evidence to the effect that the [Board's] "regular" mailing practices are not regular or that they were not followed, the Secretary is no longer entitled to the benefit of the presumption and the burden shifts to the Secretary to establish that the [Board] decision was mailed to the veteran and the veteran's representative, if any, as required by 38 U.S.C. § 7104(e). Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Records of right hip treatment in April 1998 at the Oconee Regional Medical Center were obtained, as was a record of treatment after service at a military medical facility in January 1997 for an unrelated problem. By RO letter dated March 18, 1999, sent to the Veteran's address of record, requested that he execute and return VA Form 21-4142, for release of private records. By letter dated April 1, 1999, the Veteran responded (listing the same address of record) by returning the executed release form and noting that he had not received any treatment for his claimed conditions in the last year. Records were then received from the Oconee Regional Medical Center demonstrating treatment for right hip pain. A January 1997 postservice clinical record from a military medical facility related to treatment for an unrelated problem. The Veteran was notified by RO letter of August 19, 1999, sent to his address of record, that service connection was denied for chondromalacia patellae of each knee and for cervical and lumbar strains. A copy of that rating decision was attached, and it states that he failed to report for a VA examination (scheduled in October 1998). Also, his inservice knee symptoms were acute and transitory, resolving without residuals. Likewise, despite treatment in 1982 and 1983 cervical and lumbosacral strains, these were also acute and transitory, resolving without residuals. Later in August 1999 the Veteran stated, in a letter, that he had not received notice to report for an examination; and if he had he would have reported for the examination. Thus, he requested that he be rescheduled for an examination as soon as possible. An RO letter of October 15, 1999, informed the Veteran that his application for disability compensation benefits was incomplete and that assistance could not be provided in collecting evidence to support his claims until it was complete, i.e., he had submitted a well grounded claim which was one capable of substantiation. He was informed of the elements for a well grounded claim for service connection, i.e., medical evidence of current disability, evidence of incurrence or aggravation of the disability during service, and medical evidence linking the current disability to the inservice findings or diagnosis. He was informed that presumptive service connection could be used to establish service connection for some chronic diseases. He was requested to provide the dates and places of VA medical treatment and the conditions treated. March 2000 Rating Action In response to the October 1999 RO letter, the Veteran stated in a letter dated in February 2000, and received in March 2000, that he still had problems with his back, neck and knees for which he had been treated in emergency rooms but for which he otherwise self-medicated. He again stated that he had not received notice to report for a VA examination (scheduled in October 1998), as he had previously stated in August 1999. He felt that because his earlier request to be rescheduled for an examination had been ignored that he had been denied due process and he again requested that he be rescheduled for an examination before a decision was made on his claim "whether or not this claim is well-grounded." By RO letter dated March 27, 2000, the RO notified the Veteran that his claims for service connection for bilateral chondromalacia patellae and for cervical and lumbar strains were denied as not well grounded. He was again informed of the elements of proof required in claims for service connection and a copy of the rating decision was attached. That rating decision noted the Veteran's August 1999 letter that he was not notified of a scheduled VA examination but, nevertheless, he had not responded to the October 1999 RO letter requesting treatment records and medical evidence or opinions linking any current knee, cervical and lumbar problems to service. March 2002 Rating Action A March 29, 2001, RO letter was sent to the Veteran informing him of new VA duties under the Veterans Claims Assistance Act of 2000 (VCAA). He was notified that his prior claims for service connection for his knees and strains of the cervical and lumbar spinal segments was denied as not well grounded but that the requirement of the submission of a "well grounded" claim was no longer required prior to VA providing assistance in obtaining supporting evidence. In a May 2001 letter the Veteran responded stating that he was seeking private treatment for his claimed disabilities. Also, he requested that he be provided a medical examination, stating that he "steadfastly maintain that I was never afforded a C&P exam when this claim was initiated." He again stated that he had "NEVER" received notice to report for an examination. He stated that although he lived in "Milledgeville" he had received his last correspondence "via Newman, Georgia" which led him to believe that possibly other correspondence had been misdirected, including any notice to report (for the examination scheduled in October 1998). Additional records from the Oconee Regional Medical Center were received reflecting treatment in April 2001 for low back and right hip pain "onset one week." A March 11, 2002 RO letter, sent to the Veteran address of record, notified that Veteran that service connection was not granted for chondromalacia patellae of the knees or for strains of the cervical and lumbar spine. A copy of the rating decision was attached. Neither the notice letter nor the rating decision made any reference to a requirement of new and material evidence to reopen those claims; rather, they were adjudicated de novo. January 2009 Rating Action In VA Form 21-4138, Statement in Support of Claim, received on September 10, 2008, the Veteran requested that his claims as to his knees and both spinal segments be reopened. He attached copies of document already on file. He again stated that he had not been rescheduled for a VA examination, as he requested in May 2001. Also, he had requested that records of Dr. Brodie be obtained and considered but these were not obtained or addressed in the March 2002 rating decision. The Veteran further stated that in 2002 he had reported to the Georgia Department of Veterans Service in Milledgeville and he thought that at that time he had signed an "appeal." However, when he called VA he was informed that there was nothing pending. He requested that his file be reviewed to see if his "appeal" in 2002 was on file and, if it was not, he was requesting that his claims be reopened. He again requested that he be scheduled for a VA examination and to "honor my effective date." He again stated that he had not been notified of his examination (scheduled in October 1998) and that his address had been the same since 1995. The Veteran was provided a VCAA notice letter in November 2008. In pertinent part, the January 2009 rating decision from which this appeal stems denied reopening of the claims for service connection for disability of each knee, as well as reopening of the claims for service connection for cervical and lumbar strains. It was reported that the Veteran was notified by letter of August 19, 1999, of a rating decision of the 10th of that month denying service connection for disability of the knees because there was no evidence of a chronic disability or permanent residuals of a disability that occurred in or was caused by military service. He had not appealed that decision or subsequent denials of reopening of those claims, of which he was notified by RO letters of March 27, 2000, and March 11, 2002. The January 2009 rating decision stated that the service treatment records (STRs) revealed that the Veteran had had complaints of left knee pain in April 1974 and he was issued a knee brace for support. He continued to have bilateral knee pain in June 1974, which was diagnosed as bilateral chondromalacia and treated conservatively. There was another documented complaint of left knee pain in 1979; however, there were no complications of the either knee during the remaining time in service. No abnormality of either knee was noted at the time of his discharge from active duty. In the rating decision it was stated that the inservice condition was acute and transitory, and resolved without residuals prior to service discharge, and that neither additional evidence of a chronic disability nor its relationship to service had been received. Also not received was any information to support these claim, e.g., names, addresses, and approximate dates of treatment of all healthcare providers who treated him, as requested in the Duty to Assist letter dated November 19, 2008. In the Veteran's February 2009 NOD to all of the decisions in the January 2009 rating decision he stated that, as could be seen from the March 2002 RO denial, "I was scheduled for a C&P exam and was not able to show for the exam." When he had reopened the claim in September 2008 he had requested an examination but was not given one. The February 2010 SOC addressed reopening of all of the claims, i.e., service connection for each knee and the cervical and lumbar spinal segments. A timely substantive appeal, VA Form 9, was received in March 2010. Then, a February 2010 letter from the Veteran's attorney indicated that the Veteran had depression as well as back and neck problems and by a physician's order the Veteran was currently unable to work. Private clinical records were attached. A VCAA letter was sent in March 2010 addressing, in part, a claim for service connection for depression and for "unemployability." July 2010 Rating Action The Veteran and his attorney were notified by RO letter dated July 7, 2010, of a July 2010 rating decision which denied service connection for depression and also denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). An NOD from the Veteran's attorney was received later in July 2010, which initiated an appeal of that decision, and a statement of the case (SOC) was issued in August 2010. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Veteran's claim has been captioned as shown on the first page of this decision to reflect the inclusion of all currently diagnosed acquired psychiatric disorders, including any depression. A copy of the claims file was forwarded to the Veteran's attorney in April 2010. On file is a July 2010 notice that the Veteran was awarded Social Security Administration (SSA) disability benefits. In October 2010 additional private clinical record were received. A March 2011 letter from the Veteran's attorney indicated that the Veteran had missed a "C&P exam" and another examination was requested. An April 11, 2011, Report of General Information reflects that the Veteran called and stated that he had not received notice of his appointment for a VA examination of May 24, 2011, and he wanted to know why an examination was being requested. His current address, shown on the Report of General Information, continued to be his address of record. A substantive appeal, such as VA Form 9, Appeal to the Board, addressing the denials of service connection for depression or to TDIU was never received October 2011 Rating Action Following a VA examination on May 25, 2011, an October 2011 rating decision granted service connection for (1) cervical spine disability, assigned an initial 20 percent rating; (2) right upper extremity radiculopathy, assigned an initial 10 percent rating; (3) left upper extremity radiculopathy, assigned an initial 10 percent rating; (4) lumbar spine disability, assigned an initial 20 percent rating; and (5) right lower extremity radiculopathy, assigned an initial 10 percent rating. All of these grants of service connection and the disability ratings assigned were made effective September 10, 2008; however a temporary total rating based on convalescence for the cervical spine disability was assigned, under 38 C.F.R. § 4.30, effective December 11, 2009, through January 31, 2010, and a schedular 20 percent rating was resumed February 1, 2010. This resulted in a combined disability evaluation of 60 percent (exception during the time of the assignment of the temporary total convalescent rating). Entitlement to a TDIU rating was denied. February 2012 Rating Action A February 2012 rating decision, contained in Virtual VA, reflects that the Veteran was granted service connection for radiculopathy of the left lower extremity, due to service-connected lumbar spine disability, which was assigned an initial 40 percent disability rating, effective November 14, 2011 (which the rating decision indicates was the date of receipt of VA Form 21-8940, Application for Increased Compensation Based on Unemployability [which is not contained in the claims file]). The disability ratings for the other service-connected disabilities remained that same. This resulted in an increased in the combined disability rating of 80 percent from November 14, 2011. Also, a TDIU rating was granted as was basic eligibility to Dependents' Educational Assistance, effective August 14, 2010 (date that the Veteran last worked). In a July 2012 NOD it was specifically averred that the Veteran was entitled to a temporary total convalescent rating, following cervical spine surgery, from beyond January 31, 2010, to extend through March 24, 2010. There was also disagreement with the ratings and effective dates assigned in the October 2011 rating decision. In March 2013 a copy of the Veteran's claim file was forwarded to his attorney. In March 2013 the Veteran's attorney was granted an extension of 60 days time to submit additional evidence and/or argument. Additional argument was received in May 2013. Other Matters As a substantive appeal was never received, the appeal of the July 2010 denial of service connection for depression and TDIU was not perfected. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.201. A Substantive Appeal must be filed within 60 days from mailing of an SOC, or within the remainder of a 1 year period from date of mailing of notice of the denial, whichever ends later. 38 C.F.R. § 20.302(b). The RO may close the appeal without notice to an appellant or his or her representative for failure to respond to an SOC within the period allowed. 38 U.S.C.A. § 7105(d)(3) West 2002); 38 C.F.R. § 19.32 (2012). "[T]o the extent that the Secretary has allowed, through [38 C.F.R.] § 3.109(b), for the extension of the one-year period for filing a Substantive Appeal, such an extension may be granted only for 'good cause shown'. 38 C.F.R. § 3.109(b)." Morgan v. Principi, 16 Vet. App. 20, 25 (2002). "The Court has held that there is no 'legal entitlement' to a 'good cause' extension under [38 C.F.R.]§ 3.109(b) and that a 'good cause' determination is a 'decision committed to the sole discretion of the Secretary'. Corry v. Derwinski, 3 Vet. App. 231, 235 (1992)." Morgan v. Principi, 16 Vet. App. 20, 25 (2002). Thus, if good cause is not shown to filing a timely substantive appeal, the RO should close the appeal of the July 2010 rating decision as to the claim for service connection for an acquired psychiatric disorder, to include depression, for failure to file a timely Substantive Appeal. See Percy v. Shinseki, 23 Vet. App. 37, 44-45 (2009). In this regard, a later rating decision in October 2011 noted that an appeal had not been perfected (from the July 2010 rating decision) for a TDIU but that new the ratings suggested possible entitlement to TDIU such a claim should be developed. A TDIU was subsequently granted in a February 2012 rating decision. No NOD as to the effective date of August 14, 2010, has been received and, as such, neither that matter nor the effective date for basic eligibility to Dependents' Educational Assistance are before the Board. Arguments It is alleged that additional VA outpatient treatment (VAOPT) records which are not on file will verify that the Veteran now had chondromalacia of each knee and, thus, establish the element required in a service connection claim of current disability which was the basis for the past denial of service connection. Thus, it is argued that the case must be remanded to obtain those records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the requested VAOPT records must be obtained. It is also argued that when such VAOPTs establish that the Veteran now has current disability of the knees, i.e., chondromalacia patellae or otherwise, that the claim must be reopened and the Veteran must be scheduled for a VA examination for a nexus opinion to determine whether any current disability of either knee is related to military service. Under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). Falzone v. Brown, 8 Vet. App. 398, 404 (1995) (obtaining an examination is not necessary unless the claim was to be adjudicated on the merits). Alternatively, it is argued that new and material evidence is not required to reopen the claims for service connection for knee disabilities because the prior rating decisions never became final. It is averred that finality does not attach because the Veteran was not properly notified of the October 1998 VA examination and that there is no proof in the claims file that he was so notified. Rather, the Veteran's immediate response to the initial August 1999 denial and his statements relative to the RO denials in March 2000 and March 2002 show that he never received notice (rebutting the presumption of administrative regularity). Moreover, it is argued that the RO erred in the 1999, 2000, and 2002 rating decisions in not first adjudicating whether the Veteran had good cause for not attending the October 1998 VA examination and that without such an initial determination as to good cause for failure to attend, those rating decisions are not final. Thus, it is contended that earlier effective dates for service connection for disabilities of the cervical and lumbar spinal segments and for radiculopathy of each upper extremity and the right lower extremity should be retroactively assigned. Manlincon The Veteran's attorney has initiated an appeal of the October 2011 disability ratings and service connection effective dates for (1) cervical spine disability, (2) right upper extremity radiculopathy, (3) left upper extremity radiculopathy, (4) lumbar spine disability, and (5) right lower extremity radiculopathy. In this regard, service connection was not addressed or granted in the October 2011 rating decision as to radiculopathy of the left lower extremity (for which service connection was granted in the later February 2012 rating decision) and, so, this is not before the Board. As an NOD was received within the appeal period, the issuance of an SOC is required. See 38 C.F.R. § 19.29 (2012); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, these issues must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200, 20.201, 20.202 (2012). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran and his attorney an additional opportunity to submit any information that is not currently on file. Provide them with forms authorizing the release of any identified outstanding private treatment records. These records include, but are not limited to, records of VAOPT that are not already on file. Make at least two (2) attempts to obtain records from any private identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he or his attorney submit any copies in their possession. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, if additional VAOPT, or private, records show or suggest that the Veteran had current disability of either knee, arrange for a VA examination for the purpose of determining whether it is as likely as not that any current disability of either knee related to his military service. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including the lay evidence of record as well as the VA treatment records and examination reports. The examiner should set forth all examination findings and test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 3. If it is determined that new and material evidence has not been submitted to reopen the claims for service connection for disabilities of the knees, the RO must adjudicate the contention that earlier prior denials of service connection for disabilities of the knees are not final. Specifically, the RO must adjudicate whether the presumption of administrative regularity has been rebutted that notice of the scheduled October 1998 VA examination was sent to the Veteran at his address of record. If it is determined that the presumption of administration regularity is rebutted, the claims for service connection for disabilities of the knees must be adjudicated de novo. 4. Contact the Veteran's attorney and request whether it is his intent to perfect an appeal for service connection for an acquired psychiatric disorder, to include depression, from the July 2010 rating decision. If so, he should be requested to provide, in writing, an explanation for good cause for not having filed a timely substantive appeal. If it is determined that the explanation fails to constitute good cause, the RO should close the appeal of the July 2010 rating decision as to the claim for service connection for an acquired psychiatric disorder, to include depression, for failure to file a timely Substantive Appeal. See Percy v. Shinseki, 23 Vet. App. 37, 44-45 (2009). 5. The RO must furnish to the Veteran and his representative an SOC on the issues of his entitlement to higher ratings and earlier service connection effective dates as to (a) cervical spine disability, (b) right upper extremity radiculopathy, (c) left upper extremity radiculopathy, (d) lumbar spine disability, and (e) right lower extremity radiculopathy; along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal to perfect an appeal on those issues. The Veteran and his representative are hereby reminded that to obtain appellate review of these claims, a timely appeal must be perfected within 60 days of the issuance of the SOC or within one (1) year of the October 31, 2011, notification of the October 2011 rating decision, whichever is later (the latter date having already expired). 6. Review the claims file and ensure that the above-directed development has been completed in full. If any additional development is necessary, take appropriate steps. 7. Readjudicate the applications to reopen the claims for service connection for chondromalacia of each knee (or if the claims are reopened, adjudicate those claims on a de novo basis). If the claims are not granted in full, the Veteran and his attorney must be provided with an appropriate supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claims is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).