Citation Nr: 1323693 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 10-00 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 20 percent for right knee instability. 2. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease, prior to December 23, 2008. 3. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease, from February 1, 2009. 4. Entitlement to total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts which granted service connection for right knee degenerative joint disease and provided an initial 10 percent rating. The rating decision also continued a 20 percent rating for right knee instability. In a February 2009 rating decision, the RO granted a temporary total convalescence rating (100 percent), effective December 23, 2008, and continued a 10 percent rating for right knee degenerative joint disease from February 1, 2009. The Veteran requested a hearing before the Board on his December 2009 substantive appeal. The Veteran was scheduled for a Board hearing in March 2013, but he failed to report to the hearing. As the Veteran failed to report for a scheduled hearing and did not show good cause as to why he was unable to appear for the scheduled hearing, the Board will proceed to a decision on the appeal, as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704(d). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability evaluation based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran has asserted that his employability is significantly affected by the disabilities currently on appeal, the issue of a TDIU is deemed to be before the Board. The issues of entitlement to an increased rating for right knee instability from December 23, 2008, an increased rating for right knee degenerative joint disease from February 1, 2009, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the rating period prior to December 23, 2008, the Veteran's right knee degenerative joint disease has been manifested by X-ray evidence of osteoarthritis; flexion limited to 100 degrees by pain; and extension limited to 0 degrees. The evidence does not show additional functional loss not already compensated. 2. Resolving reasonable doubt in the Veteran's favor, for the rating period prior to December 23, 2008, the Veteran's right knee instability was manifested by severe lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease, for the rating period prior to December 23, 2008, are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71, Table II, 4.71a, Diagnostic Codes 5003, 5010 (2012). 2. The criteria for a rating of 30 percent for right knee instability, for the period prior to December 23, 2008, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159 , 3.326; Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claims, a letter dated in August 2008 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. Specifically, the August 2008 VCAA letter informed the Veteran of information and evidence necessary to substantiate the claim, information and evidence that VA would seek to provide, and the information and evidence that the Veteran was expected to provide. The letter also provided information regarding the process by which disability ratings and effective dates are established. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical treatment records have been obtained, to the extent available. The Veteran was afforded a VA (right knee) joints examination in September 2008. The examiner reviewed the Veteran's claim file, past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the September 2008 examination report is adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Veteran was provided with the opportunity to testify at a scheduled Board hearing, but did not attend the scheduled hearing. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Laws and Regulations Service connection has been established for right knee degenerative joint disease. The Veteran's right knee degenerative joint disease is rated 10 percent prior to December 23, 2008. From December 23, 2008 to January 31, 2009 the Veteran received a temporary total (100 percent) rating. Beginning February 1, 2009, his rating returned to 10 percent. He is also in receipt of a separate 20 percent rating for right knee instability throughout the claims period. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in this decision is therefore undertaken with consideration of the possibility that different additional ratings may be warranted for different time periods. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). A veteran who has degenerative arthritis and instability of the knee may receive separate ratings, provided that any separate rating must be based upon additional disability. See VAOPGCPREC 23-97, citing Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Diagnostic Code 5258 provided a 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5256 deals with ankylosis of the knee. Recurrent subluxation or lateral instability is rated as slight (10 percent), moderate (20 percent) or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that words such as "slight," "moderate," and "severe" are not defined in the VA 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." See 38 C.F.R. § 4.6 . Flexion of the leg limited to 60 degrees warrants a noncompensable evaluation, flexion limited to 45 degrees warrants a 10 percent evaluation, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension of the leg limited to 5 degrees warrants a noncompensable evaluation, extension limited to 10 degrees warrants a 10 percent evaluation, extension limited to15 degrees warrants a 20 percent evaluation, extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and extension limited to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. Limitation of motion and instability of the knee are two, separate disabilities, and a veteran may be rated separately for these symptoms. See VAOPGCPREC 23-97 (July 1, 1997) (when a claimant has arthritis and is rated under instability of the knee, those two disabilities may be rated separately under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010 and Diagnostic Code 5257). Factual Background and Analysis The Veteran filed a claim for an increase rating for right knee instability, and for service connection for right knee degenerative joint disease in August 2008. The Veteran injured his right knee in service, and underwent a medial meniscectomy in November 1985. He was also diagnosed with an anterior cruciate ligament deficient right knee and treated conservatively with exercises and a brace. An August 2008 MRI revealed a medial meniscus truncation of the anterior horn, medial subluxation of the body of the meniscus, and lateral meniscus mycoid degeneration. There was also a right knee anterior cruciate ligament tear, effusion consistent with an old injury, and posttraumatic degenerative changes. He had cartilage loss in the lateral tibial plateau, swelling and a cystic change in the femoral and tibial attachment sites of the ACL. A September 2008 x-ray of the right knee reveled linear calcifications in the menisci, minimal narrowing of the joint space. In September 2008, the Veteran was afforded a VA joints examination. The Veteran stated that his knee pain has progressively worsened, and that he takes Ibuprofen to alleviate the pain. He was able to walk without assistive devices, but stated he could not stand for more than 30 minutes, and could not walk more than one mile. He endorsed symptoms of instability, pain, and stiffness. He did not report weakness, episodes of dislocation or subluxation, locking episodes, or inflammation. His gait was objectively normal. His active and passive range of motion was from zero to 100 degrees. He did not have objective pain on motion, and he did not have additional loss of motion with repetitive testing. He also had objective tenderness, weakness, crepitation, and grinding. The examiner noted he had a surgically absent meniscus and a positive McMurray's test. The examiner noted the Veteran's knee had significant occupational effects due to decreased mobility and pain limiting his ambulation and ability to climb stairs at his construction job. His right knee was noted to have a moderate effect on his ability to exercise and play sports, and a mild effect on chores, shopping, and recreation. Prior to September 2008, the Veteran's last prior joints examination was in April 1990. At that time, his range of motion was zero to 140 bilaterally, with no local tenderness, effusion, or crepitus. While the claims file contains numerous treatment records in 2008 and 2009, there are limited treatment records regarding the Veteran's right knee. In October 2008, the Veteran complained of difficulty walking up and down stairs, and an inability to play sports. He reported chronic popping, clicking and crunching in his right knee. He stated that both knees would lock and give out, but that his right knee was more unstable than his left. Objectively, he had sub patellar pain and clicking during maltracking of the patella. He had extension to zero degrees and flexion to 120 degrees. During a November 2008 VA examination addressing the Veteran's left knee, he indicated that he had bilateral giving way, instability, pain, stiffness, and weakness. He also reported repeated effusion of both knees. He stated that both knees are constantly painful, and thus he does not experience flare-ups. He had an antalgic gait, although the examiner did not note which leg the Veteran was favoring. In December 2008, prior to his knee surgery, the Veteran complained of increasing pain with daily activities and instability of the knee with physical activities. He reported that he used to work in the light construction business, but that he is now not working. His major complaint was the instability of his knee. On evaluation he had a full range of motion of his right knee. His medial and lateral femoral condyles were tender, and he had positive medial McMurrays, positive anterior drawer, positive Lachman, and positive pivot tests. The VA physician felt that much of the Veteran's pain had to do with his development of osteoarthritis and that his incompetent medial meniscus could be contraindicative of ACL reconstruction; however, the Veteran felt that his instability was the larger problem with his knee and he wanted ACL reconstruction. The physician agreed to arthroscopic-assisted ACL reconstruction, but noted that he would "abort the reconstruction procedure if there is an absolute contraindication for it during the arthroscopic assessment of the knee." On December 23, 2008, the Veteran underwent a right knee arthroscopy, meniscectomy, loose body removal, and chonroplasty. In April 2009, the Veteran had range of motion from zero to 110 degrees. He has slight opening with valgus stress, no instability to varus stress, and his patellar tracking was normal. He received a corticosteroid shot to his right knee. The claims file does not contain treatment records dated after May 2009, and there are no additional treatment records available via electronic sources. Instability Under Diagnostic Code 5257, for right knee subluxation and instability, the Board finds that the evidence suggests instability which falls between a moderate and severe rating. While the Veteran's complaints regarding instability and giving way increased during the short period between his September and October 2008 VA examinations, the Board finds his complaints to be credible. There is objective evidence of unstable ligaments, to include positive drawer (test for rupture of the cruciate ligaments), positive McMurray (test for tears in the meniscus), positive Lachman (test for instability of the anterior cruciate ligament), and positive pivot (test for anterolateral knee instability). Additionally, MRIs and x-rays revealed ligament damage. While the Veteran was able to walk without assistive devices, to include braces, he has insisted that the majority of his right knee problems were due to the instability of his knee. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that his right knee instability warrants a 30 percent rating prior to December 23, 2008. The Board notes that the surgery on December 23, 2008 was performed in part to correct the Veteran's ACL, and to improve his right knee stability. There is very limited evidence after his recovery from this surgery; therefore, the Board finds that there is insufficient evidence at this time to address his right knee stability after December 23, 2008. Thus, the rating subsequent to the expiration of the temporary total rating (i.e., after February 1, 2009), is addressed in the remand portion of this decision. Degenerative Joint Disease Under Diagnostic Codes 5010/5003/5260/5261, the Board finds that the Veteran's right knee degenerative joint disease does not warrant a rating in excess of 10 percent prior to December 23, 2008. During the Veteran's September 2008 VA examination he had a range of right knee motion from zero to 100 degrees. He did not have additional loss of motion on repetitive testing. He also indicated that he constantly had a high level of pain in his knees, and thus he did not suffer from flare-ups. During the September 2008 VA examination, the examiner did not indicate that there was objectively painful motion at any specific degree. Either the Veteran did not experience objective painful motion during the evaluation, or he was in pain during the evaluation, but that it did not increase during any specific range of motion. He was able to do active and passive range of motion to 100 degrees. The examiner found that there was no additional loss of motion, and that there was no range of motion at which pain began and ended. Subsequent VA treatment records revealed ranges of motion from zero to 120 degrees, and "full range of motion." As the Veteran underwent surgery in December 2008, remanding for an examination to address his right knee range of motion would not provide additional information regarding his symptoms during this period on appeal. The available range of motion findings for the Veteran's right knee are significantly better than the noncompensable rating criteria of Diagnostic Code 5260 and 5261 (flexion of 60 degrees and extension of 5 degrees, respectively). Even assessing the Veteran on his lowest range of motion finding, he greatly exceeded the requisite limitation of flexion and extension contemplated for even the noncompensable rating. Noncompensable limitation of motion findings are provided a 10 percent rating with objective evidence of swelling or painful motion. See Diagnostic Code 5003. As such, the Veteran's current 10 percent rating is appropriate, and a higher rating is not warranted. The Board has considered the other potentially applicable rating criteria; however, because there is no evidence of ankylosis or nonunion/malunion of the tibia and fibula, a rating in excess of 10 percent under those criteria is not warranted. As noted above, the claims file does not contain sufficient evidence of the severity of the Veteran's right knee disability after the expiration of the temporary total rating (after February 1, 2009), and thus the Board will remand the degenerative joint disease rating as well. Extraschedular Rating Under Thun v. Peake, 22 Vet. App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. As shown by the discussion of the reasons and bases above, the Board finds that the rating criteria considered in this case reasonably describe the Veteran's disabilities levels and symptomatologies. For the period decided herein (prior to December 2008), the Board finds that the Veteran's right knee disabilities are contemplated by the rating schedular, as the very symptoms manifested by this right knee are discussed and included in the schedular rating. Additionally, his right knee is currently rated separately for arthritis/painful motion and instability. In short, his disability picture is not exceptional. In the absence of an exceptional disability picture, there is no factual basis for a referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease, prior to December 23, 2008, is denied. Entitlement to a rating of 30 percent for right knee instability, prior to December 23, 2008, is granted, subject to regulations applicable to the payment of monetary benefits. REMAND As noted above, the claims file and Virtual VA contain few treatment records after the Veteran's December 23, 2008 surgery, and do not contain any treatment records after May 2009. On remand, ongoing VA medical records should also be obtained. 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) Additionally, the Veteran was provided a temporary total (100 percent) rating following his December 23, 2008 surgery due to convalescence ratings under 38 C.F.R. § 4.30. Total ratings will be followed by appropriate schedular evaluations. And when the evidence of record is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating under 38 C.F.R. § 4.30. As the claims file and Virtual VA do not contain range of motion or stability testing results after December 23, 2008, the evidence is not adequate to rate his knee disabilities for the remaining periods on appeal. The Veteran should be scheduled for a new VA examination to assess the current severity of his right knee disabilities. On September 14, 2010, the VA Department of Veterans Benefits Administration (VBA) issue Training Letter (TL) 10-07, SUBJ: Adjudication of Claims for Total Disability Based on Individual Unemployability (TDIU). The TL addressed, in part, the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found that a claim for a total disability rating based upon unemployability (TDIU) was part of the determination of an underlying increased rating claim and cited to Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for the notion that a TDIU claim is raised once a Veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability. See 38 C.F.R. § 3.155(a). Here, the Veteran has reported that his right knee disabilities affect his ability to work, and the September 2008 VA examiner indicated that his right knee disabilities had a significant effect on his usual occupation. As such, entitlement to TDIU has been raised; however, additional evidence is necessary to adjudicate the claim. The TL indicated that, "notwithstanding any favorable medical evidence or opinion indicating that the Veteran is unemployable due to service-connected disabilities, a TDIU evaluation may not be granted if the evidence otherwise shows that the Veteran is engaged in, or capable of being engaged in, gainful employment. Accordingly, a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, should still be forwarded to the Veteran if a request for a TDIU evaluation is expressly raised by the Veteran or reasonably raised by the evidence of record." Further, "once the VA Form 21-8940 is received and former employers are identified, then VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, will be forwarded to the former employers listed on the form. The VA Form 21-4192 requests that the employer provide information about the Veteran's job duties, on-the-job concessions, date of and reason for job termination, etc. A TDIU evaluation should not be denied solely because an employer failed to return a completed VA Form 21-4192." Thus, the Veteran should be forwarded the appropriate forms, and his VA joints examiner should address whether or not his service-connected disabilities render him unable to secure and maintain substantially gainful employment, to include describing the disabilities' functional impairment and their impact on physical and sedentary employment. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran corrective VCAA notice which includes an explanation of the evidence necessary to establish TDIU, and supply the Veteran with a VA Form 21-8940. 2. After receiving a completed VA Form 21-8940, conduct any necessary development required for a TDIU claim, to include contacting former employers identified by the Veteran. 3. Obtain ongoing VA treatment records and associate them with the claims file or via a virtual record system such as Virtual VA. 4. Schedule the Veteran for a VA joints examination to determine the current severity of his service-connected right knee disabilities - both arthritis and instability. The examiner is asked to review the claims file, to include any pertinent records housed in VA's electronic claims file systems. After reviewing the file, and upon examination of the Veteran's right knee, the examiner should document the Veteran's respective ranges of motion, and describe any functional impairment that exists, to include excess fatigue, weakness, and incoordination or instability. In addition, the examiner should comment on the impact, if any, that the Veteran's bilateral knee disabilities have on his ability to obtain and maintain gainful employment. A report should be prepared and associated with the Veteran's VA claims folder. 5. The Veteran is hereby notified that it is his responsibility to report for any and all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for a scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Following the completion of the foregoing, and undertaking any other development it deems necessary, review the record and adjudicate the Veteran's claims for increased ratings for his right knee disabilities and his TDIU claim. If any of these benefits sought on appeal remain denied, including the TDIU, the Veteran and his representative should be issued an appropriate SSOC, and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs