Citation Nr: 1331072 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 09-40 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bipolar disorder, claimed as a mental health condition. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for post-operative residuals of leioblastoma, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Teresa M. Meagher, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. He died in April 2010. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied service connection for PTSD, bipolar disorder, bilateral hearing loss, tinnitus, and leioblastoma. The Veteran perfected an appeal of these determinations prior to his death. In April 2011, the appellant filed a VA Form 21-0847, Request for Substitution of Claimant Upon Death of Claimant. The record reflects the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death, pursuant to 38 U.S.C.A. § 5121A. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110- 389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, governing substitution in case of death of a claimant who dies on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2011)). In the April 2012 Board remand, the Board referred the issue of entitlement to service connection for the cause of the Veteran's death. Documentation in the claims file indicates the RO has taken cognizance of the claim. The appellant testified at a Board hearing via video conference in May 2013 before the undersigned Acting Veterans Law Judge, with the appellant sitting at the RO, and the undersigned sitting at the Board's Central Office in Washington, DC. A transcript of the hearing testimony is of record and has been reviewed. The appellant's hearing testimony focused solely on the claims for entitlement to service connection for an acquired mental disorder. The Veteran/appellant has a Virtual claims file, which is a highly secured paperless repository, associated with this appeal. The Board has considered the documents in both files while reviewing this appeal. The issues of entitlement to service connection for an acquired mental disorder, to include PTSD and bipolar disorder, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. Documentation in the claims file indicates the places, types, and circumstances of the Veteran's active service included noise exposure aboard ship while in the waters of Vietnam. 2. The Veteran asserted he developed tinnitus while in active service following noise exposure. 3. Performance of duty ashore in Vietnam by the Veteran is conceded. 4. The preponderance of the evidence of record shows leioblastoma did not have its clinical onset in active service or within one year of separation from active service. 5. There is no evidence of record that links the Veteran's leioblastoma with either his presumed exposure to herbicides or his active service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. Leioblastoma was not incurred in active service, nor may it be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307(a)(3) and (6), 3.309(a) and (e). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In as much as the appellant stands in place of the Veteran, as opposed to a claim for death benefits, the Board applies the VCAA as it applied to the Veteran. As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the issuance of the rating decision on appeal, the Veteran was sent notice letters in August and October 2007. These communications explained the division of responsibilities between VA and a claimant in developing an appeal. The letters also expressly informed the Veteran how to substantiate a service connection claim and what type of information and evidence was needed to establish a disability rating and effective date in the event service connection was granted. The Board finds the August and October 2007 letters were fully time- and content-compliant. See 38 C.F.R. § 3.159(b); see also Dingess/Hartman, 19 Vet. App. 473. The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). As noted in the Introduction, at the hearing, the appellant and her attorney did not address the issues decided below, as they focused solely on the claimed acquired mental disorders. Nonetheless, the undersigned informed them the hearing was open to receive testimony on any area they desired to address. Hence, the Board finds Bryant was complied with. In light of all of the above, the Board finds the VCAA notice requirements were complied with. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Upon receipt of the Veteran's claim, the RO obtained the service treatment records, service personnel records, identified private treatment records, and the Veteran's VA outpatient records. Further, the Board remanded the case so the requested hearing could be scheduled. Neither the appellant nor her attorney asserts that there is additional evidence to be obtained, or that VA has failed to seek any records identified as relevant, as concerns the issue decided in the decision below. The Board notes the Veteran was not afforded a VA examination in connection with the adjudication of his claims. Under the VCAA, VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 82-83 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Applying the above standard, the Board finds evidence of Elements 1 through 3 are present. Specifically, there are private treatment records that note a diagnosis of leioblastoma; there is evidence of the Veteran's presumed exposure to herbicides in Vietnam; and, the Veteran's lay assertion that the leioblastoma was due to his herbicide exposure. See 38 C.F.R. § 3.159(a)(1); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010). Nonetheless, the Board finds Element 4 is not present, as there is in fact sufficient competent medical evidence to decide the appellant's appeal. Hence, the Board finds the RO did not fail to assist the Veteran with his claim prior to his death by not arranging an examination for the leioblastoma claim. In light of the above, the Board finds VA fully assisted the Veteran, and has fully assisted the appellant, with this claim, and that the record is sufficiently developed for a decision on the merits of the appeal without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed all the evidence in the Veteran's Virtual and paper claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his or her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). Certain chronic diseases such as certain organic diseases of the central nervous system and cancer are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease. Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded. 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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 profession." See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (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"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.307, 3.309. The Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis Tinnitus The Veteran's written assertions and his service personnel records show he served aboard the USS Whetstone. Documentation obtained by the RO shows the vessel conducted operations in the waters of Vietnam to include in close proximity to the shore in support of U.S. combat operations. Although the service personnel records note the Veteran was a clerk, which he concedes, the Veteran asserts his duties included loading 40 mm guns with which the vessel was armed, duty he performed without hearing protection. Service treatment records contained only the reports of the Veteran's physical examinations at entrance and separation from active service. The September 1969 Report of Medical History for his examination at separation does not contain an entry by the Veteran that he had ringing in his ears. The Report of Medical Examination For Release From Active Duty reflects his hearing was assessed as normal, as shown by Spoken and Whispered Voice of 15/15. In addition to his own personal assertions, the claims file also contains Buddy Statements the Veteran submitted that describe the circumstances of the Veteran's service, both aboard ship and apparently ashore in Vietnam. The Board finds this evidence supports a fair inference that the Veteran had noise exposure during his service afloat in the waters of Vietnam. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(c). The Veteran was fully competent to identify whether he had tinnitus. 38 C.F.R. § 3.159(a)(1). The Board notes the fact the Veteran apparently had normal hearing at the time he separated from service; and, his VA outpatient records do not note tinnitus among his problem areas for which he was treated. Nonetheless, the Board finds the documents in the claims file reveal no motive of secondary gain on the part of the Veteran; and, there is no clinical test to confirm the presence or absence of tinnitus. The disorder is diagnosed solely on the basis of the subjective reports of the patient. Hence, the Board resolves all doubt in the Veteran's favor. 38 C.F.R. § 3.102. Leioblastoma As noted earlier, there are no records of the Veteran having received treatment for any gastrointestinal disorders in active service. On his September 1966 Report of Medical History, the Veteran denied any prior history of symptoms of a gastrointestinal disorder. The September 1999 Report of Medical Examination For Separation reflects the Veteran's abdomen and viscera were assessed as normal. He was deemed physically fit for separation from active service. Private treatment records show the Veteran's diagnosis of leioblastoma and excision of the tumor via exploratory laparotomy in April 1980. The records contain no notation of a possible etiology for the leioblastoma. In light of the above factors, the Board finds no factual basis for entitlement to service connection on a presumptive basis for a chronic disease, as the preponderance of the evidence shows the leioblastoma manifested more than one year after the Veteran's active service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board now addresses the Veteran's primary asserted basis. Agent Orange The Veteran asserted his leioblastoma was due to his claimed exposure to Agent Orange during his service aboard ship in the waters of Vietnam and ashore. In addition to the legal requirements for service connection set forth earlier, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The RO obtained the U.S. Navy history of the USS Whetstone for the period the Veteran was aboard. A June 2008 Deferred rating decision reflects Naval records showed the Whetstone was in Da Nang Harbor on at least one occasion, and in Qui Nhon on another, for a total of three months between March and May 1966. The RO determined it was highly likely the Veteran went ashore during that period of time; and, therefore, accepted the Veteran actually served or visited ashore in Vietnam. Hence, he is deemed to have been exposed to herbicides. Id. In the case of a Veteran who served in the Republic of Vietnam during the Vietnam era, which is the case with the Veteran, service connection will also be presumed for certain specified diseases, including certain cancers, based on presumed exposed to herbicides agents (e.g., Agent Orange) in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). An April 1980 Pathology report from the private hospital where the Veteran was treated reflects the Veteran's tumor was a large abdominal mass attached to the stomach. The report notes the preoperative diagnosis was gastric leiomyosarcoma, which is among the cancers presumed associated with herbicide exposure. See id. The Pathology report notes further, however, that the post-microscopic description showed the Veteran's tumor to be leioblastoma. An April 1980 letter to the Veteran from the hospital staff that treated him informed the Veteran the pathologist opined the Veteran's tumor was in fact a leioblastoma instead of gastric leiomyosarcoma. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 67 Fed. Reg. 42600-42608 (2002). Although leioblastoma is not on the list of diseases and cancers which the Secretary has specifically determined are not associated with herbicide exposure, see 75 Fed. Reg. 32,540 (June 2010), neither is it on the list of cancers which are deemed associated with herbicide exposure. Stomach cancer is in fact on the list of cancers the Secretary has determined is not deemed associated with herbicide exposure. Nonetheless, since the pathologist did not label the stomach-attached tumor as stomach cancer, neither will the Board. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board may not make medical determinations). In any event, as just noted, leioblastoma is not among the diseases or cancers deemed associated with herbicide exposure. 38 C.F.R. § 3.309(e). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board discussed earlier the absence of evidence of cancer symptoms during service or within one year after the Veteran's active service. Further, neither the Veteran nor the appellant has identified or submitted any medical or scientific evidence to the effect that leioblastoma should be included among the diseases deemed associated with herbicide exposure, or that it is otherwise causally linked to prior herbicide exposure. See id. As noted earlier, the Veteran asserted his personal belief of such a link. Under certain circumstances and for certain disorders, i.e., varicose veins, a lay person is deemed capable of identifying a disease or disorder. See Jandreau, 492 F. 3d 1372. The Board finds, however, that identifying or diagnosing cancer, including leioblastoma, and opining on an etiology for it, is beyond the training and experience of the average lay person. See 38 C.F.R. § 3.159(a). There is no evidence the Veteran had medical training. Further, neither is there any evidence in the record that any medical professional told him his leioblastoma was causally linked to herbicide exposure or otherwise causally linked to his active service. In light of all of the above, the Board is constrained to find the preponderance of the evidence is against the claim on both a presumptive and direct basis. 38 C.F.R. §§ 3.303, 3.307(a)(3) and (6), 3.309(a) and (e). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for post-operative residuals of leioblastoma, including as due to herbicide exposure, is denied. REMAND The appellant's hearing testimony showed additional development is warranted on the issues that remain before the Board. Accordingly, the case is REMANDED for the following action: 1. The Veteran asserted he received mental health treatment at the Naval Hospital in Yokosuka, Japan. He also implied he was treated for inner ear symptoms. The RO will ask the National Personnel Records Center (NPRC) to determine if there are any inpatient or clinical records related to the Veteran extant for the period December 1965 to September 1969 generated by the Naval Hospital, Yokosuka, Japan. If mental health treatment records are filed in a separate repository, the NPRC should check any mental health record repository for the period November 1968 to September 1969 for records related to the Veteran. All efforts to obtain these records should be documented in the claims file. The RO will also ask the NPRC to provide any additional service personnel records not already provided. 2. After the above is complete, the RO will ask the JSRRC to research the log books and other relevant historical documents of the USS Whetstone (LSD 27) for the period of November 1968 to determine if the crew of the Whetstone was involved in any way with rendering assistance to the USS Westchester County (LST 1167) after it was damaged by a mine detonation. Information of specific interest includes whether killed or wounded sailors were taken aboard the Whetstone from the Westchester County after the explosion. 3. After the above is complete, the RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO's actions will include a determination as to whether any additional records obtained triggers a medical nexus review of the claims file by an appropriate examiner. Regardless of whether additional records are obtained, the RO will also determine whether the lay statements of the Veteran and his fellow sailors related to the Veteran's Vietnam service trigger a nexus review under 38 C.F.R. § 3.304(f)(3). 4. After completion of all of the above, the RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the appellant, she and her representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. VA will notify her if further action is required on her part. She has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs