Citation Nr: 1325648 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-27 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder secondary to service-connected bilateral femoral neck stress fractures. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from January 7, to June 29, 1982. These matters come before the Board of Veteran's Appeals (Board) on appeal from April 2006 and September 2007 decisions by the RO. In April 2006, the RO, in part, denied service connection for a psychiatric disorder secondary to the service-connected residuals of right and left femoral neck stress fracture. By a September 2007, the RO, in part, denied entitlement to TDIU. The Veteran appealed these rating actions to the Board. These matters were most recently before the Board in April 2013. At that time, the Board remanded the issues on appeal to the RO for additional substantive development. The requested development has been completed and the matters have returned to the Board for further appellate consideration. While the Board finds that it may now proceed to address the issue of entitlement to service connection for an acquired psychiatric disorder secondary to service-connected bilateral femoral neck stress fractures, further development is still warranted with respect to the claim for TDIU. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An acquired psychiatric disorder was not present during active military service or for several decades thereafter and there is no competent evidence of record otherwise linking it to an incident of military service, to include the Veteran's service-connected bilateral femoral neck stress fractures. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred or aggravated during service, a psychosis may not be presumed to have been incurred in service, and an acquired psychiatric disorder is not proximately due to a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5107, 5107A (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Before addressing the merits of the service connection issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a January 2006 letter of the evidence that was necessary to substantiate his service connection claim, and his and VA's respective duties for obtaining evidence. This letter predated the initial adjudication by the RO in April 2006. Nothing more was required. In a June 2006 letter, the RO also informed the Veteran of the remaining Dingess elements, and this notice was followed by subsequent readjudications of the claim. The Board also notes that the duty to assist the Veteran in the development of his service connection claim has been satisfied. The Veteran's service treatment records and relevant post-service VA and private treatment and examination reports have been associated with the physical claims files and uploaded to his Virtual VA electronic claims file. The Veteran has actively participated in the processing of his claim, and the statements submitted in support of his claim have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). The Veteran was afforded VA examinations in connection with the claim in August 2006, May 2011, and May 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Recently, pursuant to the Board's April 2013 remand directives, VA examined the Veteran and provided an opinion as to the etiology of the Veteran's acquired psychiatric disorder in May 2013. A copy of the May 2013 VA examination report has been associated with the Veteran's physical claims files. The Board finds the VA examiner's May 2013 VA examiner's report to have been thorough and adequate upon which to base a decision of the service connection claim decided herein. The VA examiner reviewed the Veteran's entire claims files, to specifically include VA and private treatment and examination reports, and provided the information necessary to evaluate the Veteran's claim for service connection for an acquired psychiatric disorder on a secondary basis. As a result, the Board finds that additional development by way of another examination in conjunction with the service connection claim would be redundant and unnecessary. See 38 C.F.R. §§ 3.326, 3.327 (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). Thus, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits Analysis The Veteran seeks service connection for an acquired psychiatric disorder as secondary to pain associated with his service-connected right and left femoral neck stress fractures. Service connection-general criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, such as a psychosis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the Veteran has not been diagnosed with a psychosis, the tenets of 3.303(b) have not been invoked. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Secondary Service Connection-criteria Service connection is also provided for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted under 38 C.F.R. § 3.310 for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to incorporate the holding in Allen, except that under the new regulation, VA will not concede aggravation unless there is medical evidence created prior to the claimed aggravation that shows a base line level of disability. 71 Fed. Reg. 52,744-52,747; 38 C.F.R. § 3.310(a), (b) (2012). The Veteran is seeking service connection for an acquired psychiatric disorder as a result of pain associated with his service-connected right and left femoral neck stress fractures. (July 2007 typographed statement from the Veteran to VA). At the outset, the Board finds that because the evidence does not show that the Veteran manifested a psychosis to a compensable degree within a year of discharge from active military service in June 1982, service connection is not warranted for this disability on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Veteran has a current diagnosis of major depressive disorder. Thus, the crux of the Veteran's claim for service connection for an acquired psychiatric disorder, currently diagnosed as major depressive disorder, is whether it is etiologically linked to military service or to the service-connected right and left femoral neck stress fractures. As to the medical opinion evidence in this case, the Board notes that there are several opinions as to the etiological relationship between the Veteran's major depressive disorder and his service-connected right and left femoral neck stress fractures. Evidence in support of the claim includes a December 2006 opinion, prepared by H. T., Psy, a private psychiatrist. After a mental status evaluation of the Veteran, Dr. H. T., diagnosed him with DMS with adjustment disorder. Dr. H. T. concluded that the Veteran's "emotional condition and symptoms" were a direct result of the organic condition of his hip. In his December 2006 opinion, Dr. H. T. noted that the Veteran's emotional and hip conditions caused him not to sit or stand for prolonged periods of time. Dr. H. T. related that "incorrect postures" had caused exacerbation of the Veteran's emotional condition. (See December 2006 opinion, prepared by Dr. H. T.). The Board finds Dr. H. T.'s opinion to be of minimal probative value because it is not supported by any medical rationale or reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In addition, it is in direct conflict with the other medical evidence of record, which will be discussed in more detail below, reflecting that the Veteran's depressive disorder was the result of employment and personal-related factors. Finally, while Dr. H. T. indicated that incorrect postures had caused an exacerbation of the Veteran's emotional condition, Dr. H. T. did not opine that the cause of the incorrect postures was the Veteran's service-connected bilateral femoral neck stress fractures. Thus, the Board finds Dr. H. T.'s December 2006 opinion to be of minimal probative value. Evidence against the claim includes a June 2006 report that was also prepared by H. T., Psy. In contrast to his December 2006 report, Dr. H. T. noted that in his job as a teacher, the Veteran's nerves had been affected by a school-related incident, namely an assistant teacher who had been accused of lewd acts with a student on a day when the Veteran had been absent from school. As a result of the school-related incident, the Veteran's nerves were affected and he had increased pain in his extremities. (See June 2006 report, by H. T., Psy.). Other evidence against the claim includes VA treatment reports, dated in January, April and June 2007. These reports show that the Veteran's depression and anxiety-related symptomatology were etiologically related to employment and personal causes, such as being employed at school for troubled children (January 2007) and the two (2) year anniversary of the deaths of several friends and family members (January, April and June 2007 VA treatment reports). In addition, a July 2007 report, prepared by Geriatrics Family Medical Center, reflects that the Veteran had entered into a "terrible nervous state" after he was involved in a motor vehicle accident. (See July 2007 report, prepared by Geriatrics Family Medical Center). The Veteran was also examined by a VA psychiatrist in August 2006, May 2011 and May 2013 in order to determine the etiology of his acquired psychiatric disorder. After a review of the claims files, to include the Veteran's service treatment records, and post-service VA and private treatment records, the VA psychiatrist opined that the Veteran's acquired psychiatric disorder, diagnosed as a nervous condition and depressive disorder, respectively, was not related to military service nor had it been caused or aggravated by the service-connected bilateral femoral neck stress fractures. In support of her opinion, the VA psychiatrist reasoned that that there was no evidence of any psychiatric complaints during military service or within the first post-service year. She further indicated that the first post-service evidence of any psychiatric pathology was not until 2005, when the Veteran, who was employed as a teacher, sought psychiatric treatment for occupationally-related reasons (i.e., an argument and fight with a student). The VA psychiatrist further noted that the Veteran's state insurance case of major depressive disorder was occupationally-related. Thus, the VA psychiatrist determined that the two conditions (major depressive disorder and service-connected bilateral femoral neck stress fractures) occurred in different time frames, did not share the same pathophysiologic mechanism and were non-related medical entities that did not aggravate one another nor were they etiologically related. Overall, the VA psychiatrist opined that the Veteran's major depression was not related to service or to a service-connected condition. (See August 2006, May 2011 and May 2013 VA examination reports). The Board finds that the VA psychiatrist's opinions to be consistent with the evidence of record, namely the Veteran's service treatment records, which are devoid of any psychiatric pathology and reflect that the Veteran was discharged as a result of his service-connected bilateral femoral neck stress fractures, as well as private and VA post-service medical evidence of record, reflecting that the Veteran's psychiatric symptomatology was related to occupational and personal events (i.e., deaths of family and friends and motor vehicle accident). The above-cited VA opinions are clearly based upon a comprehensive and factually accurate review of the record evidence from all sources and examinations of the Veteran on three separate occasions and are therefore more probative than Dr. H. T.'s August 2006 opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Gardin v. Shinseki, 613 F.3d 1374 (Fed.Cir. July 2010) (affirming the holding in Nieves-Rodriguez, Id.) The United States Court of Appeals for the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). "It is not error for the BVA to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reason or bases. It is the responsibility of the [Board] ... to assess the credibility and weight to be given to evidence." Owens v. Brown, 7 Vet. App. 429, 433 (1995). For the above-cited reasons, the Board finds the VA psychiatrist's August 2006, May 2011 and May 2013 opinions to be more consistent with the evidence of record than Dr. H. T.'s August 2006 opinion that is in support of the claim for service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral neck stress fractures. The Veteran and his sister have expressed their belief that he has an acquired psychiatric disability that is the result of pain from his service-connected bilateral femoral neck stress fractures. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Federal Circuit also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. So to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Neither the Veteran or his sister have been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that either the Veteran or his sister have received any special training or acquired any medical expertise in evaluating and determining causal connections for psychiatric disorder, particularly depression. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, while this lay evidence is competent to relate that the Veteran was suffering from symptoms that were believed to be associated with depression caused by his service-connected disability, they are not competent to link those symptoms to a specific diagnosis and/or relate such diagnosis to a service-connected disorder. Although the Board recognizes the sincerity of the arguments advanced by the Veteran and his sister in this case, their contentions regarding the etiology of his depression are not statements merely about symptomatology, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which they simply does not have. That is to say, an acquired psychiatric disorder is not the type of condition that is readily amenable to mere lay diagnosis or probative comment on their etiology. While the Veteran and his sister are competent to report symptoms and are competent to report their perception of nervousness and depression as coinciding with pain from his service-connected bilateral femoral neck stress fractures, whether there is actually any cause and effect relationship, and by this the Board means either that the connected bilateral femoral neck stress fractures caused or aggravated his depression is not answered by his report of symptoms. Despite symptoms that often may be associated with an eventual diagnosis of depression, neither the Veteran nor his sister are competent to ascribe these symptoms to a disorder related to his military service. Therefore, the Veteran's and his sister's opinions, to the extent they are to be accorded some probative value, are far outweighed by the findings of the examining and treating medical professional. See Jandreau supra & Buchanan supra. Accordingly, for all the reasons noted above, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for an acquired psychiatric disorder, to include as secondary to the service-connected bilateral femoral neck stress fractures is denied. REMAND The Veteran also seeks entitlement to TDIU. Legal Criteria Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2012). Furthermore, a total disability rating may be assigned where the combined rating for the a veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. 38 C.F.R. §4.16(b). The Veteran asserts that he is unemployable as a result of pain associated with his service-connected bilateral femoral neck stress fractures and lumbar spine, and nonservice-connected depression. He is currently service connected for the following disabilities: right and left femoral neck stress fractures and lumbosacral spine disability; each evaluated as 20 percent disabling; and chronic gastritis associated with the service-connected right and left femoral neck stress fractures, evaluated as 10 percent disabling; he has a combined rating of 60 percent, effective from March 15, 2007. (See April 2012 and April 2013 rating actions). The Board also notes that disabilities of the bilateral legs, low back, and the Veteran's gastritis all share a common etiology, as they stem directly from the service-connected bilateral femoral neck stress fractures. Therefore, because all of these disabilities stem directly from the same etiology (i.e., the bilateral femoral neck stress fractures), they are considered one disability under 38 C.F.R. § 4.16(a) for the purposes of considering entitlement to TDIU. Using the bilateral factor, they result in a combined disability rating of 60 percent under section 4.25 as of March 15, 2007, the effective date of the 20 percent rating assigned to the Veteran's service-connected low back disability. Thus, the schedular criteria for the disabilities resulting from the service-connected bilateral femoral neck stress fractures have been met since March 15, 2007. The Veteran filed for TDIU in July 2007. (See VA Form 21-8940, Statement in Support of Claim, dated and signed by the Veteran in July 2007). As such, the schedular criteria have been met throughout the pendency of this appeal. See 38 C.F.R. § 4.16(a). In this case, the Veteran meets the preliminary schedular criteria for consideration for TDIU as outlined in 38 C.F.R. § 4.16(a). However, this remains the first step in establishing the basis for TDIU entitlement, as the evidence must further demonstrate not just that the Veteran is unemployable, but also that she is incapable of maintaining gainful employment as a consequence of one or more service-connected disabilities. In this regard, while the record does consist of relevant and competent medical opinions, upon further review of the opinions, the Board does not find that they adequately address the issue of whether the Veteran is incapable of maintaining gainful employment as a result of his service-connected disabilities alone. For example, an April 2011 VA orthopedic examination report contains a VA examiner's opinion that the Veteran's service-connected bilateral femoral neck stress fractures had caused a significant effect on is employability due to decreased mobility and increased absenteeism, but did not address whether it rendered the Veteran incapable of gainful employment. Similarly, lay statements that have been submitted by the Veteran also do not squarely address this question. There is also evidence that identify his nonservice-connected psychiatric disability as the Veteran's primary occupational impairment. Consequently, based on the above, the Board finds that the Veteran should be provided with an appropriate examination to determine whether his service-connected disorders of right and left femoral neck stress fractures, lumbosacral spine disability, and/or chronic gastritis render the Veteran incapable of maintaining and securing gainful employment. Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination to ascertain the impact of the Veteran's service-connected disabilities on his employability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities (currently, right and left femoral neck stress fractures, lumbosacral spine disability, and chronic gastritis), alone, without consideration of nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The examiner should set forth all examination findings, together with the complete rationale for all conclusions reached. 2. After completion of the above development, and any other notice and development required by law, readjudicate the remaining claim on appeal. If the claim is denied, the Veteran should be provided with a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. The appellant 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). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs