Citation Nr: 1335354 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-14 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for major depressive disorder, to include as secondary to service-connected dermatitis. 2. Entitlement to a disability rating in excess of 30 percent for service-connected dermatitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to August 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's "Virtual VA" file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The issue of entitlement to service connection for a psychiatric disability, to include as secondary to service-connected dermatitis, 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 The Veteran's dermatitis affects, at its worst, 21 percent of the exposed body surface and 30 percent of the total body surface, and requires sporadic use of corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for the Veteran's service-connected dermatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7806 (2008 and 2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is also required to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed letters in February 2008, November 2008, and March 2009 advising her of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The February 2008 and November 2008 letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of her claim. The Board also finds the Veteran has been afforded adequate assistance in response to her claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examinations. As will be discussed in more detail below, the Board notes that the September 2006 and May 2012 VA examinations were conducted after a full reading of the claims file, including the Veteran's VA treatment records, physical examination of the Veteran, and an explanation of rationale for the opinions stated; and therefore, the Board finds the examinations adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The March 2008 VA examination and accompanying July 2008 addendum were not conducted prior to a review of the Veteran's claims files; however, a review of the Veteran's electronic medical records was conducted. Additionally, the Board notes that the failure to perform a review of the claims files during a VA examination does not immediately render a VA examination inadequate. Snuffer v. Gober, 10 Vet. App. 400 (1997). As the Veteran's electronic medical records were reviewed and a physical examination of the Veteran was conducted at the time of the March 2008 VA examination, the Board finds that the examination report is adequate in order to evaluate the severity of the Veteran's dermatitis at that time. Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the June 2013 Board hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the functional impairment of the disability in question, specifically as to the past and current severity of the symptoms caused by the Veteran's service-connected dermatitis. The Veteran was assisted at the hearing by an accredited representative from The American Legion. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim; at that time the Veteran offered for submission a letter from her private psychologist at the VA Medical Center. The Board notes that neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor her representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. II. Legal Criteria and Analysis The Board has reviewed all of the evidence in the claims folders. 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 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 these claims. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's dermatitis has been evaluated under Diagnostic Code 7806, which addresses dermatitis or eczema. Diagnostic Code 7806 provides a 30 percent evaluation is assigned when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is assigned when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes that, during the pendency of the Veteran's claim and appeal, amendments were made to the criteria for rating the skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, DCs 7800 to 7805). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 7-2003; VAOPGCPREC 3-2000. However, the amended skin regulations effective October 2008 are only applicable to claims received on or after October 23, 2008. See 73 Fed. Reg. 54,708 (September 23, 2008). The Veteran filed her claim for an increased rating in July 2007; therefore, the amended skin regulations effective October 2008 will not be addressed in the present decision. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran contends that her dermatitis has worsened and that she is entitled to a disability rating in excess of 30 percent. Specifically, the Veteran has asserted that her dermatitis worsens with the change in seasons. She has stated that her feet and hands are particularly affected, and that the skin is dry and itchy constantly. She also described irritation and itchy patches in various other spots around her body, including her face and neck. The Veteran was afforded a VA examination of the skin in September 2006. At that time she reported that her skin condition was worse during the summer months with flare-ups that would cause the skin to get puffy. She reported that sometimes the rashes would burst open, and other times they would be dry and flakey. She reported they were very itchy and uncomfortable, especially when she would sweat. She reported a history of treatment that included: oatmeal colloidal powder; bath oil; nystatin; hydrocortisone ointment; and Cyclocort; and that she continued to use those treatments. She denied receiving light or laser therapy and she had not been given any immunosuppressive drugs. She reported that the eczema/dermatitis typically presented under her breasts, in the elbow folds, antecubitals of her hands bilaterally, the fingers and knuckles, both feet, and in between her thighs. She denied any fever or weight gain/loss associated with the rash. She did not have any malignant neoplasms, benign neoplasm, percutaneous vasculitis, erythema multiform, or urticaria. On physical examination, the Veteran was noted to have eczema on both her feet and hands, as well as her knuckles. There was some scarring of hypopigmented skin on her fingers. She also had some dermatitis around her neck and between her thighs. The examiner noted the skin condition covered 6 percent of her hands, 6 percent of her feet, 9 percent of the thigh area, and 9 percent of the neck; for a total of 21 percent of the exposed body surface and 30 percent of the total body surface. The examiner noted that the Veteran's eczema/dermatitis affected her daily living in that she had reported during the winter months she was unable to write. The Veteran had also reported that the rash was very embarrassing to her and she was sometimes unable to go out into public, especially when the rash was irritated, hot, and raw; the rash was also noted to be painful particularly under her arms and in her groin when she would sweat. The examiner diagnosed chronic eczema of the bilateral lower and upper extremities, the groin, neck, and under the breast. The Veteran was afforded another VA examination of the skin in March 2008. The examination report notes that the Veteran's claims files were unavailable for review. At the examination, the Veteran reported a history of a scaling rash on her hands, feet, groin, and below her breasts. The condition was noted to be good at the time of the actual examination, involving only the hands and the dorsum of the feet at the time. The Veteran reported that she had last been treated for her dermatitis in December 2007 and the examination report reflects that her dermatitis was noted to be controlled and she obtained refills of her medication, including betamethasone, triamcinolone, hydrocotisone, nystatin, Eucerin, Keri bath oil, Aveeno oatmeal bath, LactiCare, and Claritin. On physical examination, the examiner noted that the Veteran's dermatitis was consistent with what was noted in the December 2007 treatment note, and only the lateral aspect of the hand and the dorsum of the feet demonstrated a rough hyperpigmented scaling rash at the time of the VA examination. The examiner diagnosed dermatitis and noted it was clinically improved and stable with current management at that time. In July 2008, an addendum to the March 2008 VA examination and opinion was obtained by the same VA examiner; however, the Veteran was not re-examined at this time. In July 2008, the VA examiner noted that at the time of the March 2008 VA examination, the Veteran's dermatitis was sparse, barely evident, and only evidenced on the lateral aspects of the hands and dorsum of the feet. The VA examiner noted that there had been no pain at the time of the VA examination and noted that the dermatitis or eczema covered less than 1 percent of the Veteran's exposed areas of skin, and less than 1 percent of the entire body. The examiner also noted that the Veteran had not been treated with any systemic therapy for her dermatitis. The Veteran was afforded another VA examination of the skin in May 2012. At that time, the examiner noted that the Veteran had a long history of dermatitis and had been prescribed various treatment regimens, including: Nizoral shampoo, Benadryl, Loratadine, Dermacin, Triamcinolone, Aveeno oatmeal bath powder, and bath oil. The examiner noted that these medications did not include the use of any systemic corticosteroids or other immunosuppressive medications within the previous 12 months, but included the use of constant topical corticosteroids and frequent use of other topical medications. The Veteran had reported that her dermatitis was worse during the summer months, that her face and hands were problematically involved, and that her dermatitis had been aggravated by a previous work environment. On physical examination, the Veteran was noted to have dermatitis at the intertriginous areas of the sternum, on the fingers and dorsum of the right wrist mildly, and the left groin. The Veteran had reported recurrences of dermatitis at the neck, feet, right groin, and back, but on examination, those areas were clear. The examiner noted, that at the time of the examination, the Veteran's dermatitis covered less than 5 percent of her exposed body area, and less than 5 percent of her total body area. VA treatment notes of record show that the Veteran receives regular treatment for her dermatitis. She is regularly seen for complaints of flare-ups related to her dermatitis and for refills of her various prescription medication. Of particular note is an August 2009 VA treatment record which shows that the Veteran was seen by dermatology for a flare-up of her dermatitis. At that time she was noted to have well defined, hyperpigmented patches of dermatitis on her cheeks, anterior neck, lower chest, lateral chest bilaterally, lower legs, and dorsum feet. There was also a larger, indurated patch on the left, mid back. The Veteran was noted to be on Azathioprine, an immunosuppressive drug, which the examining dermatologist increased from 50 milligrams three times a day, to 50 milligrams four times a day. A November 2009 treatment record also notes Prednisone, a systemic corticosteroid, in the Veteran's list of active prescription medications. The Veteran's list of active prescription medication indicates that her prednisone prescription was for a total of 15 days, but it does not clearly indicate that it was prescribed for her dermatitis; the record does not indicate for how long the Veteran had been prescribed Azathioprine. Social Security Administration (SSA) records associated with the claims files show that the Veteran had been granted SSA disability benefits effective September 4, 2004, the date she had become unemployed, due to various non-service connected disabilities. There is no indication from the SSA records that the Veteran alleged her service-connected dermatitis contributed to her unemployment or factored into her grant of SSA disability. Private treatment records associated with the claims files note that the Veteran occasionally complains of symptoms of her dermatitis to her private treatment providers at Yorktowne Family Medicine. However, there is no indication from these records that her dermatitis is worse than what is reflected in the VA examination reports or the Veteran's VA treatment records. Also of record is an August 2009 lay statement from, Ms. T.C., a member of the Veteran's church. In this letter, Ms. T.C., states that she had been working with the Veteran at their church since 2002, and since that time she had observed dry patches and scaling on the Veteran's arms, back, stomach, and other parts of her body. She stated that she had observed the Veteran scratching "furiously" during these outbreaks, and that at times, the skin would crack and seep fluid. She further stated that the Veteran's skin appeared very dry and ashy. Upon review of the evidence, the Board finds that a disability rating in excess of 30 percent for the Veteran's service-connected dermatitis is not warranted. In this regard, the Board notes that the VA examination reports of record indicate the Veteran's dermatitis waxes and wanes, and at its worst, as illustrated by the September 2006 VA examination, covers 21 percent of her exposed body surface and 30 percent of her total body surface. The Board acknowledges that the later VA examinations indicate the Veteran's dermatitis may have improved; however, the Board is hesitant to make any such finding as the Veteran has stated on numerous occasions, including at her VA examinations, that her dermatitis is worse during summer months. VA treatment notes of record support the Veteran's statements that her dermatitis is worse during summer months, particularly the August 2009 treatment record showing she was treated for a flare-up of her dermatitis on numerous parts of her body and that she was being treated with immunosuppressive drugs and, possibly, systemic corticosteroids at that time. However, there is no evidence of record that the Veteran's service-connected dermatitis covers more than 40 percent of her entire body, or that she requires constant or near-constant systemic therapy with immunosuppressive drugs or corticosteroids. She does constantly use a corticosteroid topical cream, but that is not the same as "systemic therapy with . . . corticosteroids." Therefore, the Board finds that a disability rating higher than 30 percent is not warranted for the Veteran's service-connected dermatitis, at this time. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board has considered whether any alternate diagnostic codes would allow for a higher rating for the Veteran's service-connected dermatitis. The Board acknowledges that the September 2006 VA examiner noted there was some hyperpigmented scarring on the Veteran's hands; however, there is no indication that these scars are unstable or painful, or cause any other disabling effects. As such, a separate compensable rating under Diagnostic Code 7804 or 7805 for such scarring is not warranted at this time. Further, there is no evidence that the Veteran has any scarring of the nature to warrant separate compensable ratings under Diagnostic Codes 7800, 7801, or 7802. Further, there is no evidence of a diagnosis or findings of any of the disorders listed in Diagnostic Codes 7807 through 7833. In sum, there are no other applicable diagnostic codes that would allow for a higher evaluation at this time. 38 C.F.R. § 4.118. Consideration has also been given to assigning the Veteran a staged rating for her dermatitis. However, at no time during the period on appeal has the Veteran's dermatitis warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In conclusion, the evidence does not support a disability rating in excess of 30 percent for the Veteran's service connected dermatitis at any point during the period on appeal. As the preponderance of the evidence is against the claim for increase, the benefit-of-the-doubt doctrine is inapplicable, and the appeal is denied. Extra-Schedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's service connected dermatitis that are not encompassed by the schedular criteria. In this regard, there is no evidence that the Veteran requires emergency treatment or any inpatient treatment for her dermatitis. As there is also no objective evidence, or any specific allegation, suggesting that the schedular criteria are inadequate, the Board finds that the schedular criteria clearly encompass the symptoms and impairment shown throughout, and that referral for extraschedular consideration is not warranted. Further, the Board acknowledges, that Veteran has indicated that her dermatitis was aggravated by employment environments in the past, and the record suggests that the Veteran may be currently unemployed; however, there is no indication that any such unemployment is related to her service-connected dermatitis. In fact, as noted above, the Veteran's SSA disability benefits were not awarded due to her service-connected dermatitis, nor did the Veteran assert that her dermatitis contributed to her unemployment when she applied for SSA benefits. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22Vet. App. 447 (2009). ORDER Entitlement to a disability rating in excess of 30 percent for dermatitis is denied. REMAND The Board finds that additional development is needed before the Veteran's remaining claim on appeal is decided. The Veteran has claimed entitlement to service connection for major depressive disorder as secondary to her service-connected dermatitis. Specifically, she has asserted that the general appearance of her skin as a result of her dermatitis, particularly during the summer months when her dermatitis is at its worst, causes her embarrassment, discomfort, and depression, such that she avoids social interaction. Of record are extensive VA treatment records that document that the Veteran was first treated for depression in January 2004, and began receiving regular mental health treatment in March 2005 when she was assigned a diagnosis of major depressive disorder. The Board acknowledges that the Veteran did not begin to seek mental health treatment in relation to her depression symptoms on the basis that such were caused by her dermatitis. The Board notes that of record is a September 2008 VA examination report which contains a negative nexus opinion. However, the Board finds that the September 2008 VA examination was inadequate. Specifically, the examiner did not provide an opinion as to whether the Veteran's service-connected dermatitis has aggravated the Veteran's diagnosed major depressive disorder. As the Veteran has claimed entitlement to secondary service connection for her depression, such an opinion as to aggravation is necessary. Further, in the July 2008 addendum to the Veteran's March 2008 VA skin examination, the VA examiner opined that the Veteran's diagnosed depression was not caused by or the result of her service-connected dermatitis. However, the VA examiner provided no explanation of rationale for this opinion, she did not conduct an examination of the Veteran for the purpose of formulating, or in relation to, this opinion, and she did not provide an opinion as to whether the Veteran's depression was aggravated by her dermatitis. Therefore, the Board finds this opinion inadequate. Additionally, the Board notes that of record is a June 2013 letter from Dr. H.C., the Veteran's treating psychologist at the VA Medical Center. In this letter, Dr. H.C., states that since she has been treating the Veteran, the Veteran has had diagnoses of major depressive disorder and dermatitis, but that she was unsure which disorder predated the other, or if there was a causal relationship between the two. However, Dr. H.C. did note that the Veteran's dermatitis appeared to flare-up when she was more depressed, and she tended to become more depressed when her dermatitis was symptomatic. The Board notes that this opinion was provided in speculative terms, and Dr. H.C. did not provide a supporting explanation of rationale. However, as this letter was from the Veteran's treating psychologist, the Board finds it is significant and as such, on remand, it should be addressed by the VA examiner. Finally, a review of the claims file and "Virtual VA" shows that that most recent treatment notes of record from the Lebanon VA Medical Center are dated November 2009. The Board finds that current VAMC records may contain information pertinent to the claim and must be associated with the claims files before a decision is rendered in this case. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should obtain treatment records from the Lebanon, Pennsylvania VA Medical Center, dated from November 2009 to the present, to specifically include the Veteran's mental health treatment records. 2. Then, the Veteran should be afforded a new VA examination by a medical professional with sufficient expertise to determine the nature and etiology of the Veteran's current major depressive disorder. The claims files must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. After examination and review of the claims files the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's psychiatric disability was caused or chronically worsened by her service-connected dermatitis. The complete rationale for all opinions expressed must be provided. The VA examiner is asked to specifically address the June 2013 letter from Dr. H.C., the Veteran's treating psychologist. 3. When the development requested has been completed, and the RO or the AMC has ensured compliance with the requested actions, this case should again be reviewed and readjudicated by the RO or the AMC on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs