Citation Nr: 1335596 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-15 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide exposure. 2. Entitlement to service connection for skin cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the VARO in Togus, Maine, that denied entitlement to service connection for the disabilities at issue. The case was previously before the Board in February 2012 at which time it was remanded for further development. The requested actions were accomplished to the extent possible and the case was then returned to the Board, which remanded it a second time in February 2013 to direct the RO to schedule a requested Video Conference hearing before the Board. The Veteran attended a Video Conference hearing in June 2013 and testified before the undersigned Veterans Law Judge. Such has been accomplished and this matter is now returned to the Board for additional consideration. The Board notes that while the Veteran's wife was listed as a witness, she did not provide testimony in this matter. Thus the Veteran is listed as the only witness in this hearing. The hearing transcript is associated with the electronic record. The issue of entitlement to service connection for skin cancer 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. The Veteran did not have service in Vietnam, and his unit of assignment in Korea is not recognized by VA as having been exposed to herbicides; search efforts to verify herbicide exposure have been unsuccessful. 2. Diabetes mellitus was not manifested during service, was not diagnosed within the first post service year, and is not otherwise related to active service. CONCLUSION OF LAW The criteria for the establishment of service connection for diabetes mellitus, to include as due to exposure to herbicides, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By a letter submitted in November 2007 prior to the April 2008 rating on appeal, the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service and private treatment records have been obtained. He has not advised the VA as to any relevant VA treatment records regarding his diabetes. While the VA has been put on notice as to the existence of possible VA treatment for skin cancer in 2005, the Board notes that such records would not be pertinent to this claim for service connection for diabetes as the outcome of this claim turns on whether he was exposed to herbicides in service. The 2005 VA records would not be probative for the purpose of proving such exposure and are not determinative in this instance. Thus there is no prejudice in failing to obtain them in this instance. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Regarding the attempts to verify his claimed exposure to herbicides, the VA has attempted to confirm such exposure. This included review of M21-1MR IV.ii.2.C.10.p, and finding that the Veteran's unit, 1st Battalion, 17th Artillery (1st Bn, 17th Arty) was not a unit or military entity identified by the DOD as operating in or near the Korean DMZ between April 1, 1968 and August 31, 1971. Further attempts for such verification were made via the Joint Services Records Research Center (JSRRC) which determined in March 2009 that his unit was located at Camp Hartnell, approximately 4 miles away from the DMZ, with no other documented evidence of use, storage, spraying or transporting tactical herbicides. Subsequently after it was determined that the Veteran's unit had been stationed at Camp McIntire, a response was obtained from JSRRC in April 2012 which determined that this military facility was located approximately 7 miles from the DMZ and again there was no other documented evidence of use, storage, spraying or transporting tactical herbicides. An October 2012 VA Formal Finding Regarding Lack of Information to Corroborate a Claim Associated with Exposure to Herbicides determined that the evidence failed to show the Veteran was exposed to tactical herbicides while serving in Korea. The VA determined that all efforts to obtain the needed information have been exhausted and further attempts would be futile. While the Veteran has submitted lay statements alleging that he also spent time at Camp Santa Barbara during his active service, this is not supported by his official personnel records. Furthermore there is no need to attempt to verify whether this location was subjected to Agent Orange exposure as he has conceded that this camp was located outside of the DMZ and has not provided competent, credible evidence to suggest that this facility was otherwise involved in the use, storage or transport of tactical herbicides. The Veteran has not been afforded a VA examination in regard to his claim for service connection for diabetes. In determining whether the duty to assist requires that a VA examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, no examination is necessary in order to adjudicate the Veteran's claims of entitlement to service connection. Specifically, there is no true indication of an incident, injury or disease that occurred in service. While the Veteran has been diagnosed with pertinent disability, there is no evidence of such in service or for many years thereafter, there is no evidence of manifestation of pertinent disability during any applicable presumptive period, and there is no medical evidence of a nexus relating the asserted conditions to service. As such, the necessity for a VA examination has not been triggered. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam); See also 77 Fed. Reg. 23128 -01 (April 18, 2012). At the June 2013 hearing, the undersigned identified the issues on appeal. The Veteran provided testimony as to all treatment received for his claimed disabilities and, thereby, demonstrated actual knowledge of the ability to submit additional relevant evidence. The duties imposed by Bryant were thereby met. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled, and no further action is necessary under the mandates of the VCAA. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection for certain chronic diseases, such as diabetes mellitus, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In this instance the Veteran does not allege any service in Vietnam. Special regulations apply to claims based upon herbicide exposure. The United States Department of Defense ("DOD") has confirmed that Agent Orange was used along the demilitarized zone ("DMZ") in Korea. Agent Orange was used to defoliate the fields of fire between the front line defensive positions and the south barrier fence. If it is determined that a Veteran who served in Korea during the applicable time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See MR21- 1MR, Part VI, Chapter 2, Section B, Subsection 6. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as a fall leading to a broken leg, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters, 601 F.3d 1274. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran neither contends and the evidence does not show that he had diabetes mellitus while in service or within the first postservice year. His service treatment records revealed normal endocrine system findings on his August 1967 entrance examination and his October 1969 separation examination, with the respective reports of medical history negative for evidence of sugar or albumin in his urine. Urine tests from June 1969 and October 1969 were negative for sugar or albumin. The post service evidence reflects no diagnosis of diabetes prior to 2006 when records from June 2006 and October 2006 diagnosed diabetes. Diabetes was also shown to be diagnosed in January 2007 and May 2007. None of the records showing a diagnosis of diabetes gave any opinion regarding causation. Instead, the Veteran attributes his diabetes mellitus to exposure to herbicides during his service in Korea. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv) (2013). The United States Department of Defense has confirmed that Agent Orange was used from April 1968 through July 1969 along the DMZ and has identified units or other military entities that are identified as operating in or near the Korean DMZ. Both the 2nd and 7th Infantry Divisions, United States Army, had elements in the affected area at the time Agent Orange was being used. M21-1MR, Part IV, Subpart ii, Chapter 2, § 10.p. The Veteran's DD Form 214 reflects that he had 6 months and 1 day of foreign service. He is in receipt of the Armed Forces Expeditionary Medal (Korea). His service personnel records reflect that he was enroute to Korea on May 8, 1969 and that he served as a cook with the 1st Battalion, 17th Artillery through November 30, 1969. The Board notes that the Veteran's unit, 1st Bn, 17th Arty, is not listed among those units identified by the Department of Defense as operating in an area or near an area near the DMZ, thus the presumptive provisions of 38 C.F.R. § 3.307(a)(6)(iv) are inapplicable to his claim. See id. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 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). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. Brock v. Brown, 10 Vet. App. 155 (1997). In a statement dated March 2009, the U.S. Army and Joint Services Records Research Center (JSRRC) verified that the Veteran's unit (1st Bn., 17th Arty) was located at Munsan-Ni (Camp Hartell) approximately 4 miles from the DMZ. JSRRC stated that the history does not document the use, storage, spraying, or transportation of herbicides. In addition, they do not mention or document any specific duties performed by unit members along the DMZ. The Veteran asserts, however, that his unit was stationed at Fort McIntyre during which time he was sent out on field duty along the DMZ. Such is corroborated by the record. Specifically, a service personnel record pertaining to 'Record of Proceedings Under Article 15, UCMJ' reflects that on July 25, 1969 while stationed at Camp McIntyre the Veteran failed to go at the time prescribed to his appointed place of duty. Such document confirms that the Veteran was at Camp McIntyre during his service in Korea. In September 2009, JSRRC stated that the historical record did not indicate that the Veteran's unit (1st Bn., 17th Arty) was stationed at Camp McIntyre. JSRRC did not indicate whether herbicides were used at Camp McIntyre nor was the proximity to the DMZ indicated. The following website http://qsl.net/wd4ngb/cpmcintyre.htm contains a picture of a sign reading 'Camp McIntyre' and 1st Battalion, 17th Artillery. The picture was purportedly taken in the late 1960's. As there was credible evidence of the Veteran having been at Camp McIntire, as shown in the Article 15 record of July 1969, the JSRRC was further contacted to determine its location in proximity to the DMZ. In April 2012 the JSRRC submitted a response which stated that a 1969 Unit History submitted by the Veteran's unit (1st Bn., 17th Arty) was stationed at Camp McIntyre and that Camp McIntire was located approximately 7 miles from the DMZ. However the history did not document the use, storage, spraying or transportation of herbicides. In addition the history did not mention specific duties performed by unit personnel along the DMZ. The Veteran testified in his June 2013 hearing that his punishment during his July 1969 Article 15 in Korea required him to help build a house for a village mayor and that he had to enter the DMZ to obtain sand for building purposes. He also indicated that he had a training buddy who was sent to Camp Santa Barbara in Korea and that he visited Camp Santa Maria on many occasions. He conceded that this camp was 4 miles from the DMZ. He also said that one time he helped put up a mess tent at Camp Santa Barbara and when taking it down, noticed it was sticky from an unknown substance. He also indicated that he went to field units to deliver food to them. He has asserted in his NOD and substantive appeal that he was sent out on field duty along the DMZ for over a week, and he delivered food to those on guard duty at the DMZ. Lay statements submitted by friends of the Veteran described the Veteran as having been in Camp Santa Barbara. Also submitted was an e-mail from an individual with the initials A.C. that cited a statement from an unknown source stating that anyone at Camp Santa Barbara from 1968-1969 was exposed to Agent Orange. Based on a review of the evidence, the Board finds that service connection for diabetes mellitus to include as secondary to Agent Orange exposure, is not warranted. As discussed above, attempts to confirm that the Veteran was exposed to Agent Orange via official sources have been unsuccessful as he is not shown to have been in a unit sent to the DMZ, or in a location that otherwise was subject to the handling, spraying or storage of Agent Orange. His lay contentions of having been in the DMZ while performing various duties including while either working as a cook serving field operatives or while performing his punitive duties which he alleged involved construction using sand acquired from the DMZ are unsupported by official records. Likewise while other lay witnesses have concurred with his claims of serving at Camp Santa Barbara, this is not supported by official sources and further he has conceded that this camp was outside the DMZ. The e-mail suggesting anyone who was in Camp Santa Barbara was exposed to Agent Orange is without probative value as the source of this statement is unknown. Finally his statements and testimony alleging that a substance noted on a tent was Agent Orange is shown to lack probative value, as no official corroboration of this contention is made and he is not shown to be competent to identify substances such as Agent Orange. Some further objective corroboration of Agent Orange exposure is required. See e.g., Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (in contrast to situations involving claimed medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident). In short, there is no competent and probative evidence that the Veteran was exposed to Agent Orange during his active duty. Accordingly, based on this record, the Board finds that Agent Orange exposure has not been shown, and service connection on a presumptive basis under 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6) is not available. Moreover, the evidence of record does not support the contentions that the Veteran's diabetes mellitus are otherwise directly related to his period of active service. As discussed above, there is no indication of the manifestation of diabetes mellitus within one year of service discharge, and it is not shown to be present until 2006 which is more than 35 years following separation from service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since active service, may be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board recognizes the Veteran's contentions that he has diabetes mellitus as a result of active service. 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not asserted that he has had a continuity of symptomatology since service. Moreover, he has not suggested that the diabetes mellitus is related to a disease or injury in service beyond his asserted exposure to herbicides. As exposure to herbicides has not been established as explained above, the Veteran's lay assertions as to the manifestation of his current disabilities are of limited probative value. While the Veteran is competent to describe that which he experienced in service and thereafter, any contentions that his diabetes mellitus are related to active service are outweighed by the remaining evidence of record. As the evidence in this case weighs against the claims of service connection for diabetes mellitus, to include as due to exposure to herbicides. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). ORDER Service connection for diabetes mellitus, to include as due to exposure to herbicides, is denied. REMAND The Veteran asserts that his skin cancer is due to sun exposure during his period of active service. He has alternately asserted that his skin cancer is due to exposure to herbicides in service. However in a statement submitted with his substantive appeal in February 2010, he appears to have clarified that he was not claiming service connection on the basis of herbicide exposure, but instead was alleging it was due to sun exposure. His MOS is noted to be as a cook. The Veteran's lay statements and hearing testimony described that his duties included cooking with a portable kitchen out in the field at times, as well as setting up the mess tents. He also testified that while on punishment for an article 15 he was involved with helping a construction project which he reported involving obtaining sand from the DMZ. He asserts that a diagnosis was rendered in 2003. Private treatment records on file reflect a diagnosis of basal cell skin cancer made in June 2006, and a diagnosis of actinic keratosis in May 2007. A November 2012 VA examination determined that the diagnosed condition was basal cell carcinoma (BCC) on the right side of the face, status post removal. The date of diagnosis was 2001. The Veteran stated that he had skin cancer removed on the right face below the right eye in 2001 through his private doctor and also had a recurrent skin lesion on the right face which was frozen in 2005 at the Brookville VA clinic. While the private records of treatment have been obtained, the VA records have not been obtained. Accordingly, the Board finds that a remand is necessary in order to assure that all VA records pertaining to this matter have been obtained and associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally the Board finds that the opinion from the VA examiner stating in part that the Veteran's skin cancer was not due to sun exposure in service appears to speculate that the Veteran's MOS of cook was primarily indoors and thus he was indoors most of the time. However the examiner does not provide a source for this assumption that the Veteran's MOS was primarily indoors and appears not to have considered the Veteran's lay statements and testimony that suggest his cook duties did involve exposure to the outdoors. Of note, he describes having to serve mobile camps and also described setting up mess tents, presumably outside. He has also suggested that he performed outside construction work while on punishment for his Article 15. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Brookville VA Medical Center, or any other VA facility that may have treated the Veteran, which are not of record, and associate those documents with the claims file. 2. Thereafter, following the completion of the above entire claims file, to include a complete copy of the REMAND, should be returned to the examiner(s) who conducted the November 2012 VA examination for skin disorders to obtain the following addendum opinion. If this examiner is no longer available the claims file should be associated with the appropriate medical professional. After review of the evidence in the claims file and electronic record, the examiner should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not that the Veteran has a skin cancer disorder that manifested during, or as a result of, active military service, to include sun exposure therein. In addressing this matter, the examiner must consider not only the evidence shown in the service treatment records, but also the lay history provided by the Veteran regarding a history of outdoor activities he participated in during service. A complete rationale for all opinions offered must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs