Citation Nr: 1333746 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-31 678A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for a right shoulder disability, to include right rotator cuff tendinitis and impingement syndrome. 3. Entitlement to service connection for medial epicondylitis (a right elbow disability). 4. Entitlement to an initial evaluation in excess of 10 percent for status post repair of MCL of the right knee (right knee disability). 5. Entitlement to an initial compensable evaluation (or rating) for residual fracture of the right thumb (right thumb disability). 6. Entitlement to an initial compensable evaluation for residual fracture of the left thumb (left thumb disability). 7. Entitlement to an initial compensable evaluation for crushing injury of the right ring finger (right ring finger disability). 8. Entitlement to an initial compensable evaluation for residuals of dislocation of MCP joint of the right little finger (right little finger disability). 9. Entitlement to an initial compensable evaluation for residuals of dislocation of MCP joint of the left little finger (left little finger disability). 10. Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) with hiatal hernia. 11. Entitlement to an initial compensable evaluation for chronic sinusitis. REPRESENTATION Appellant represented by: Barry P. Allen, Attorney WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1980 to October 1984, from March 1985 to December 1992, and from August 1998 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 2013, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge in Nashville, Tennessee. A copy of the hearing transcript is located in the Veteran's file in "Virtual VA." In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. The Veteran, through the representative, submitted additional evidence after the most recent supplemental statement of the case; however, the submission included a waiver of the right to an initial review of such evidence by the RO. As such, the Board will proceed to consider the case. See 38 C.F.R. § 20.1304(c) (2012). The issues of an increased rating for service-connected plantar fasciitis, and service connection for left knee and left heel disabilities (as secondary to service-connected disabilities), body pains (claimed as fibromyalgia), and headaches/migraines (as secondary to service-connected disabilities) have been raised by the record (see January 2011 submission), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Although the issues listed purported to include claims for increased rating for right knee disability and increased rating for GERD, as the Veteran has already entered a notice of disagreement with the initial ratings for those disabilities, the initial rating issues are pending, which precludes the possibility of filing an increased rating during the same initial rating appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999) (holding that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating). The issues of service connection for a right elbow disability and higher initial evaluations for service-connected right thumb disability, left thumb disability, right ring finger disability, right little finger disability, left little finger disability, and chronic sinusitis are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran had symptoms of obstructive sleep apnea during active service. 2. The Veteran had symptoms of obstructive sleep apnea since service separation. 3. The Veteran's current obstructive sleep apnea was incurred in service. 4. The Veteran had symptoms of a right shoulder disability during active service. 5. The Veteran had symptoms of a right shoulder disability since service separation. 6. The Veteran's current right shoulder disability of rotator cuff tendinitis and impingement syndrome was incurred in service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right shoulder disability of rotator cuff tendinitis and impingement syndrome have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claims of service connection for obstructive sleep apnea and a right shoulder disability have been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted in this decision, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, obstructive sleep apnea, rotator cuff tendinitis, and impingement syndrome are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Obstructive Sleep Apnea The Veteran contends that the obstructive sleep apnea originated in service. Specifically, he contends that he has had symptoms of a sleep disability in service and since discharge from active service. Alternatively, he asserts that obstructive sleep apnea is secondary to the service-connected sinusitis. As the Board is granting service connection based on direct service connection (adjudicated below), the contended alternate theory of secondary service connection is rendered moot because there remain no questions of law or fact as to the fully granted issues; therefore, the secondary service connection theory will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides questions of law or fact). After a review of all the evidence of record, lay and medical, the Board finds the evidence in equipoise as to whether the Veteran had symptoms of obstructive sleep apnea in service and since service separation. The evidence that weighs against these findings includes the voluminous service treatment records, which are absent for complaints of, treatment for, or diagnosis of a sleep disability. Other evidence that weighs against these findings includes that, following service separation in March 2008, the evidence of record shows no complaints, diagnosis, or treatment for obstructive sleep apnea until January 2009 when the Veteran sought treatment for sleeping problems. The absence of post-service findings, diagnosis, or treatment for approximately 10 months after service is one factor that tends to weigh against a finding of obstructive sleep apnea symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). However, favorable evidence supporting the findings that the Veteran had symptoms of obstructive sleep apnea in service and since service separation includes the Veteran's testimony during the May 2013 Board hearing. There, the Veteran testified that he had sleep problems during most of his career. Hearing Transcript at 20. Particularly, he reported that he would awaken frequently. Id. Additional evidence supporting the finding of in-service sleep problems is a January 2009 private treatment report that indicated the Veteran had "a several year history of difficulty sleeping with frequent awakenings." The Veteran also reported night sweats and headaches in the morning. The Veteran is competent to provide evidence regarding his obstructive sleep apnea symptoms and sleep difficulties that he experienced at any time, including during service and since service separation, as such symptoms are readily apparent. Also in this regard, the Veteran's statements were made during the course of treatment. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991). Other favorable evidence includes the Veteran's spouse's statements during the January 2009 private treatment report. At that time, she reported that during sleep the Veteran had a light snore, occasional talking, choking pain, teeth grinding, and frequent arousals. The Veteran's spouse also submitted a statement in July 2013. She indicated that she began dating the Veteran in 1990 and they were married in 1992. She stated that, from the beginning of the relationship, she noticed the Veteran had difficulty sleeping. Specifically, she reported noticing that the Veteran would be quiet or still for a few seconds and then snort as if to take in a breath. She wrote that she would continue to monitor him during sleep to ensure that he did not stop breathing. Such lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno at 469; see also 38 C.F.R. § 3.159(a)(2). Furthermore, the Board finds the Veteran's and his spouse's allegations credible as they have been consistent throughout the claim and appeal process. In short, with regard to the Veteran's assertions that he has had obstructive sleep apnea symptoms in service and following service, the Board finds that the Veteran and his spouse are competent and credible to report the onset of symptoms of that disability, specifically difficulty staying asleep and frequent awakenings, snoring, cessation of breathing, occasional talking, choking pain, and teeth grinding. See Hearing Transcript at 20; see January 2009 Private Treatment Report; see also Charles, 16 Vet. App. 370; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza, 7 Vet. App. 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board will resolve reasonable doubt to find that the Veteran had sleep apnea symptoms in service and since service separation, including difficulty staying asleep and frequent awakenings, snoring, cessation of breathing, occasional talking, choking pain, and teeth grinding. In this regard, in the case of Walker v. Shinseki, 708 F.3d 1331, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). While the Veteran's obstructive sleep apnea is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found that he has had obstructive sleep apnea symptoms during service and since service separation that tends to show direct service incurrence. As discussed below, however, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the obstructive sleep apnea began in service and was so incurred in service. The finding that the Veteran has had obstructive sleep apnea symptoms since service is supportive of the claim overall because it tends to show that the same symptoms that began in service were the basis for the later diagnosed sleep apnea. The Board next finds that the Veteran has a current disability of obstructive sleep apnea. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current obstructive sleep apnea is related to service. In this case, the Veteran was not afforded a VA examination of the obstructive sleep apnea. As there is no adequate medical nexus opinion as to the etiology of the Veteran's obstructive sleep apnea, the Board must look to the remaining evidence of record to determine whether service connection is warranted. Here, the Veteran was diagnosed with obstructive sleep apnea after discharge from service. This diagnosis coupled with the evidence pertinent to service, specifically, the Veteran's and his spouse's competent and credible lay statements of obstructive sleep apnea symptoms in service and since service that later served in part as the basis for a diagnosis of sleep apnea, establishes that the obstructive sleep apnea was as likely as not incurred in service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Right Shoulder Disability The Veteran contends that the right shoulder disability originated in service. Specifically, he contends that he has had symptoms of a right shoulder disability in service and since discharge from active service. After a review of all the evidence of record, lay and medical, the Board first finds the Veteran had symptoms of a right shoulder disability in service. A service treatment record from August 1983 indicated the Veteran's complaint of right shoulder pain. There was no diagnosis or treatment of a right shoulder disability at that time. Another service treatment record from September 2007 indicated the Veteran's complaint of right shoulder pain for seven days after playing with his kids. There, he was assessed with tendinitis of the right shoulder. Consistent with the September 2007 service treatment record, a post-service, private treatment report from August 2010 indicated the Veteran's report of having pain in the right shoulder for the past three years (to include during active service) and that he injured it while playing Wii, a video game console. In this regard, the Board finds the Veteran's post-service statements of in-service right shoulder disability symptoms competent and credible as they were made during the course of treatment and he would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright at 25; Pond, 12 Vet. App. at 341. The Board also finds that the Veteran has had symptoms of a right shoulder disability since service separation. One week after discharge from active service, the Veteran submitted a claim for service connection for a right shoulder disability and indicated that he received treatment during service from 1980 to 2008. See April 2008 Application for Compensation and/or Pension. Other favorable evidence supporting the finding that the Veteran had symptoms of a right shoulder disability since service separation includes the Veteran's statements during a May 2008 VA examination. At that time, he reported onset of an injury or disease of the right shoulder in service. Additional evidence of right shoulder symptoms in service and since service includes the Veteran's testimony during the May 2013 Board hearing. There, the Veteran testified that he had pain and weakness of the right shoulder since active service for which he sought treatment after service in August 2010. Hearing Transcript at 16. The Veteran is competent to provide evidence regarding his right shoulder disability symptoms that he experienced at any time, including since service separation, as such symptoms are readily apparent. Indeed, as noted above, the private treatment report from August 2010 indicated the Veteran's report of having pain in the right shoulder for the past three years (to include during active service and years after service separation). Such lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno at 469; see also 38 C.F.R. § 3.159(a)(2). Furthermore, the Board finds the Veteran's allegations credible as they have been consistent throughout the claim and appeal process. In short, with regard to the Veteran's assertions that he has had right shoulder disability symptoms following service, the Board finds that the Veteran is competent and credible to report the onset of symptoms of that disability, specifically pain and weakness. See Hearing Transcript at 4-5; see also Charles at 370; see also Barr at 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno at 469-470 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza, 7 Vet. App. 498 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). As such, the Board finds that the Veteran had right shoulder disability symptoms since service, including pain and weakness. As discussed above, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. While the Veteran's right shoulder disability, diagnosed as right rotator cuff tendinitis and impingement syndrome are not chronic diseases listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found that he has had right shoulder disability symptoms since service separation that were later diagnosed as right shoulder disability. Such evidence tends to show service direct incurrence, that is, that the right shoulder disability began during service even though it was not diagnosed during service. As discussed below, however, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that the right shoulder disability began in service and was so incurred in service. The finding that the Veteran has had right shoulder disability symptoms since service is supportive of the claim overall because it tends to show that the same symptoms that began in service were the basis for the later diagnosed right shoulder rotator cuff tendinitis and impingement syndrome. The Board next finds that the Veteran has a current right shoulder disability of right rotator cuff tendinitis and impingement syndrome. The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's current right shoulder disability is related to service. In May 2008, the Veteran underwent a general VA examination. Upon physical examination, the examiner diagnosed the Veteran with limited range of motion of the right shoulder. The VA examiner did not opine as to the etiology of the right shoulder disability. The Board finds the examination inadequate. Barr, 21 Vet. App. at 311 (where VA provides the Veteran an examination in a service connection claim the examination must be adequate). As there is no adequate medical nexus opinion as to the etiology of the Veteran's right shoulder disability, the Board must look to the remaining evidence of record to determine whether service connection is warranted. Here, the Veteran was diagnosed with right rotator cuff tendinitis and impingement syndrome after discharge from service. While these diagnoses were first rendered after service, the competent and credible lay evidence shows in-service symptoms of a right shoulder disability and post-service symptoms of right shoulder disability that in part supported the later diagnoses of rotator cuff tendinitis and impingement syndrome. Such evidence tends to show the right shoulder disability was as likely as not incurred in service. See 38 C.F.R. § 3.303(d). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for a right shoulder disability of rotator cuff tendinitis and impingement syndrome have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for obstructive sleep apnea is granted. Service connection for a right shoulder disability of rotator cuff tendinitis and impingement syndrome is granted. REMAND On an August 2010 VA Form 9, the Veteran requested a hearing before a Member of the Board (now called a Veterans Law Judge (VLJ)) at the local regional office (Travel Board hearing). At that time, the Veteran indicated that he intended to appeal all the issues listed on the statements of the case and supplemental statements of the case sent by the RO, which included all issues listed on the title page of this decision. In another VA Form 9, dated in December 2011, the Veteran requested a Travel Board hearing before a VLJ and indicated that he intended to appeal only the issues listed - service connection for right shoulder disorder and service connection for sleep apnea; however, during the May 2013 Board hearing, the Veteran's representative clarified that the Veteran wanted a Board hearing on all issues as requested on the August 2010 VA Form 9. In agreement with the undersigned, the Veteran's representative indicated that the Veteran should be scheduled for a Board hearing on the issues of service connection for a right elbow disability and higher initial evaluations for service-connected right knee disability, right thumb disability, left thumb disability, right ring finger disability, right little finger disability, left little finger disability, GERD, and chronic sinusitis after completion of a Freedom of Information Act (FOIA) request. Accordingly, the issues of service connection for a right elbow disability and higher initial evaluations for service-connected right knee disability, right thumb disability, left thumb disability, right ring finger disability, right little finger disability, left little finger disability, GERD, and chronic sinusitis are REMANDED for the following action: After ensuring that all FOIA requests have been completed with respect to the issues remanded herein, the Veteran should be scheduled for a Travel Board hearing in accordance with the docket number of this case, unless the Veteran elects a videoconference hearing instead. Notice of the scheduled hearing should be provided to the Veteran at the most recent address of record and to his representative. A copy of such notice shall be associated with the claims file. Thereafter, the case should be returned to the Board, if in order. The purpose of this remand is to afford due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran 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). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs