Citation Nr: 1334177 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 05-00 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for a chronic cutaneous lymphoma, to include B-cell lymphoma, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability. 2. Entitlement to service connection for chronic Mycobacterium avium complex (MAC) infection residuals, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability. 3. Entitlement to service connection for a chronic pulmonary disorder to include chronic obstructive pulmonary disease (COPD) and restrictive lung disease, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from July 1969 to July 1973. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Cheyenne, Wyoming, Regional Office (RO) which determined that new and material evidence had not been received to reopen a claim of entitlement to service connection fo B-cell lymphoma and denied service connection for COPD and MAC infection residuals. In February 2005, the Board remanded the issue of whether new and material evidence had been received to reopen the claim for service connection for B-cell lymphoma, as well as the issues of service connection for COPD and service connection for MAC infection residuals. The Board remanded the claim in January 2012 for additional development. In doing so, the Board recharacterized the lymphoma and COPD issues as set forth on the title page of this decision. The issue of service connection for a chronic pulmonary disorder to include COPD and restrictive lung disease 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. FINDINGS OF FACT 1. There has been no demonstration by competent and credible evidence that the Veteran's chronic cutaneous lymphoma, to include B-cell lymphoma, is related to active duty, to include toxic chemical and radiation exposure, or that it was proximately caused or aggravated by a service-connected disability. 2. There has been no demonstration by competent medical and credible evidence that the Veteran's chronic MAC infection residuals are related to active duty, to include toxic chemical and radiation exposure, or that they were proximately caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Chronic cutaneous lymphoma, to include B-cell lymphoma, was not incurred in or aggravated by active service, to include toxic chemical and radiation exposure, and is not proximately due to, the result of, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2013). 2. Chronic MAC infection residuals were not incurred in or aggravated by active service, to include toxic chemical and radiation exposure, and are not proximately due to, the result of, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.311 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice with respect to the claim for service connection for chronic MAC infection residuals was provided in a March 2009 letter. Thereafter, the claim on appeal was readjudicated in a June 2011 supplemental statement of the case (SSOC). Accordingly, the duty to notify has been fulfilled. As the Board noted in the January 2012 remand, the Veteran was not provided notice for the issue of service connection for chronic cutaneous lymphoma. Nevertheless, the Board finds that any defect with respect to such notice was harmless error. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran had actual knowledge of the elements required to establish entitlement to service connection for chronic cutaneous lymphoma, as provided by a February 2013 SSOC. This was followed by readjudication in a May 2013 SSOC. Further, the Veteran's own contentions, made through his representative in a September 2013 informal hearing presentation (IHP), make it clear that he had actual knowledge of the elements required to establish service connection for chronic cutaneous lymphoma. See Sanders, supra. In a March 2013 VA Form 21-4138, an April 2013 VA Form 646, a June 2013 VA Form 21-4138 Addendum to the VA Form 646, and the IHP, the Veteran's representative made no arguments or contentions that the Veteran had not been provided adequate notice. Neither the Veteran nor his representative have asserted that he has any additional evidence regarding his appeal. In light of these facts, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose when it would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). These factors demonstrate that the Veteran has submitted all evidence and/or information in his possession and thus the purpose of 38 U.S.C.A. § 5103A notice was not frustrated. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, and records from the Social Security Administration. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA has substantially complied with the Board's January 2012 remand. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). A February 2013 VA memorandum provides that the RO had determined that records verifying exposure to ionizing radiation were unavailable. The memorandum stated that all procedures had been correctly followed, all efforts to obtain the needed information had been exhausted, further attempts were futile, and the information was not available. The appellant was afforded a VA medical examination in July 2010 and VA Disability Benefits Questionnaire (DBQ) examinations in January 2013. 38 C.F.R. § 3.159(c)(4). 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). The Board finds that the VA examinations and opinions obtained in this case are more than adequate, as they are predicated on a reading of the Veteran's claims file and medical records, and the results of current physical examinations. They consider all of the pertinent evidence of record and the statements of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to each of the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. As discussed in more detail below, the Veteran seeks service connection for the claimed disabilities. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Chronic Cutaneous Lymphoma, to include B-cell Lymphoma The Veteran contends that he now has a chronic cutaneous lymphoma, to include B-cell lymphoma, that is related to active duty, to include exposure to ionizing radiation or chemicals, or was caused or aggravated by service-connected sinusitis. He contends that he was exposed to ionizing radiation and chemicals while working in the Air Force in nuclear weapons maintenance. In March 2000, an Air Force comrade stated that he had worked with the Veteran at F.E. Warren Air Force Base during the early 1970's. He and the Veteran were 463X0 technicians. The Veteran's comrade identified numerous hazardous adhesives, solvents, coatings and miscellaneous chemicals that he and the Veteran were exposed to on a routine, often daily, basis. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service-connected if manifest in a "radiation-exposed veteran." The presumptively service-connected diseases specific to radiation-exposed veterans include lymphomas (except Hodgkin's disease). 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). The term "radiation-exposed veteran" means a veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" is defined in detail. It does not include the Veteran's claimed manner of exposure. 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii). Thus, the Veteran is not entitled to service connection under this method. The second method of service connection is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed Veteran, or posterior subcapsular cataracts manifested 6 months or more after exposure, may be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. The list of radiogenic diseases include lymphomas other than Hodgkin's disease. Id. When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Undersecretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Undersecretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). In this case, as noted above, VA has been unable to document the Veteran's claimed inservice exposure. The Veteran has been unable to provide verification of the claimed exposure. While lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran was exposed to ionizing radiation during active duty) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence that he was exposed to ionizing radiographic report during active duty. Thus, the Veteran is not entitled to service connection under this method. Regarding the third method of service connection, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service treatment records, and post-service medical records for many years after service, are negative for pertinent complaints, symptoms, findings or diagnoses. A January 2013 VA skin DBQ provides a diagnosis of primary cutaneous follicular center lymphoma. The DBQ sets forth a detailed analysis of the Veteran's relevant VA and private medical history. The examiner expressed the opinion that the Veteran's lymphoma did not have its onset during service. The examiner noted that an original treatment note in 1991 indicated the presence of a lesion on the left side of the nose for a couple of months prior to the diagnosis of cutaneous lymphoma. The examiner stated that with cutaneous lymphoma manifesting nearly 20 years after the time of the Veteran's military service, it was less likely than not the lymphoma had its onset during service. In addition, the examiner noted that the etiology of cutaneous lymphoma was only partially understood. A review of medical literature on the internet listed the most important factor in initiation of cutaneous B cell lymphoma as immunodeficiency disorders and infections with oncogenic viruses and bacteria. The VA examiner reported finding no mention of chemical exposures or radiation being associated with cutaneous lymphoma. The examiner further noted that he had reviewed the Integrated Risk Information System maintained by the US Environmental Protection Agency (USEPA). The examiner noted that of the chemicals the Veteran may have been exposed to during active military service, there was no mention of a carcinogenic agent associated with cutaneous lymphoma. The examiner stated that most chemicals in the USEPA data base were listed as "Data are inadequate for an assessment of human carcinogenic potential." The examiner noted that chemicals such as trichloroethylene and benzene were classified as known human carcinogens. However, they were associated with systemic non-Hodgkin's lymphoma and not cutaneous lymphoma. The examiner also pointed out that cutaneous B cell lymphoma was not shown in the medical literature to be etiologically related to the [Veteran's service-connected] chronic maxillary sinusitis, hemorrhoids, tinnitus or impaired hearing. The examiner stated that there was no medical evidence of which he was aware indicating chronic maxillary sinusitis, hemorrhoids, tinnitus, or impaired hearing aggravated cutaneous B cell lymphoma. The examiner concluded that in light of the lack of medical literature associating cutaneous B cell lymphoma with radiation or chemical exposures, only speculation would allow connecting cutaneous lymphoma with past radiation or chemical exposure. The Board finds that the examiner's use of the word "speculation" is not problematic. He did not meant that it would be speculative to offer any nexus opinion, either positive or negative. Rather, he meant that there was no basis to offer a positive opinion linking the Veteran's disability to exposure to ionizing radiation other than speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010) The Board finds that this medical opinion constitutes probative evidence against the Veteran's claim. It is based on current examination results and a review of the medical record. The examiner thoroughly explained the opinion with references to the Veteran's active duty and post-service medical history, as well as medical literature. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that any such assertions are credible. However, as noted above, the Veteran's assertions cannot constitute competent medical evidence that he was exposed to ionizing radiation during active duty. Similarly, the Veteran's contentions that he incurred his lymphoma as a result of active duty, to include exposure to ionizing radiation or chemicals, or secondary to service-connected sinusitis, do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's lymphoma is related to active duty, to include exposure to ionizing radiation or chemicals, or was caused or aggravated by service-connected sinusitis) falls outside the realm of common knowledge of a lay person. See Kahana, supra; Jandreau, supra. (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. 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." Layno, supra. Additionally, 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. Further, 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. Jandreau, supra. The Veteran is competent to state that he observed symptoms during or after service, or after developing sinusitis. However, he is not competent to attribute the symptoms occurring during or after service, or after the development of sinusitis, as establishing the diagnosis and etiology of his lymphoma. As such, the Board finds that the Veteran's assertions are outweighed by the January 2013 VA medical opinion. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for chronic cutaneous lymphoma, to include B-cell lymphoma, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Chronic MAC Infection Residuals The Veteran contends that he developed an infection due to Mycobacterium Avium in 2003. He asserts that this infection was related to active duty, to include exposure to ionizing radiation or chemicals, or was caused or aggravated by service-connected sinusitis. The Veteran claims that he now has residuals of this infection. The Veteran's contentions as to his active duty exposure to ionizing radiation and chemicals is summarized above. The record reflects that an April 2003 sputum culture grew MAC. Additional sputums in July and August 2003 were negative for MAC. An August 2003 VA assessment from an infectious disease clinic was that MAC was an unlikely pathogen. A VA pulmonary assessment given the same day agreed, and the VA provider did not believe MAC was causing the clinical disease, but rather that there likely was a contaminant. The report of the July 2010 VA examination provides that June 2004 bronchoscopy cultures were positive for Mycobacterium Gordonae, a contaminant. No subsequent cultures were positive for Mycobacterium Avium. The examiner stated that the Veteran's inability to produce a sputum sample at this time even with induction, and his current negative chest X-ray, would make it highly unlikely that he currently suffered from Mycobacterium Avium. A January 2013 VA respiratory conditions DBQ provides a diagnosis of restrictive lung disease. The DBQ sets forth a detailed analysis of the Veteran's relevant VA and private medical history. The examiner reiterated that the Veteran did not have any respiratory condition other than restrictive lung disease. In a summary section, the examiner specifically stated that chronic MAC residuals were not identified. The Veteran's current pulmonary disease seemed related to restrictive lung disease. The Board finds that these VA medical opinions constitute highly probative evidence against service connection for chronic MAC infection residuals. The examiners explained their opinions with specific references to the Veteran's post-service medical history. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom, supra (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean, supra (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins, supra (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board acknowledges the assertions by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno, supra. The Board finds that any such assertions are credible. However, the Veteran's contentions that he has MAC infection residuals do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran even has chronic MAC infection residuals) falls outside the realm of common knowledge of a lay person. See Kahana, supra; Jandreau, supra (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. As such, the Board finds that the Veteran's assertions are outweighed by the July 2010 and January 2013 VA medical opinions. 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. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Accordingly, service connection for chronic MAC infection residuals is denied. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for chronic MAC infection residuals. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. ORDER Service connection for a chronic cutaneous lymphoma, to include B-cell lymphoma, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability, is denied. Service connection for chronic MAC infection residuals, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability, is denied. REMAND The Veteran's claim for service connection for a chronic pulmonary disorder to include COPD and restrictive lung disease, claimed as the result of toxic chemical and radiation exposure or as secondary to service-connected disability, requires additional development. As noted above, "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer, supra. The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Indeed, even when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In the current case, the January 2013 respiratory conditions DBQ provides that the Veteran did not have COPD or any other respiratory condition other than restrictive lung disease. In a summary section, the examiner specifically stated that COPD was not identified. Nevertheless, multiple treatment records (such as a February 2011 VA outpatient ENT progress note) state unequivocally that the Veteran had COPD. In addition, a VA treatment record dated in May 2012 indicates that another VA physician disagreed with the findings on the VA compensation examination. This treating physician stated that the Veteran now had chronic bronchitis and bronchiectasis which was probably related to his service connected sinusitis. In light of this discrepancy, the Board finds that an additional medical opinion addressing whether the Veteran did have COPD at any point during the appeal period is necessary for the proper adjudication of this claim. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the examiner who conducted the January 2013 respiratory DBQ (or a suitable substitute if this individual is unavailable) for an addendum. The examiner is requested to review the claims folder in order to fully address whether it is at least as likely as not (50 percent or more likelihood) that the Veteran did have COPD at any point during the appeal period. If it is at least as likely as not (50 percent or more likelihood) that the Veteran did have COPD at any point during the appeal period, the examiner should fully address whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's COPD was related to toxic chemical and radiation exposure or was proximately caused or aggravated by the Veteran's service-connected sinusitis. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and afforded an opportunity to respond. The case should be returned to the Board for appellate review. 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 MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs