Citation Nr: 1335724 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-26 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter. 2. Entitlement to an increased evaluation for the neurological manifestations of the gunshot wound (GSW) residuals of the left thigh, to include a rating in excess of 10 percent prior to October 11, 2012, and an evaluation in excess of 20 percent thereafter. 3. Entitlement to an effective date earlier than October 1, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service in the United States Army from September 1987 to September 1991, including approximately six months in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) Waco, Texas. After the appellant disagreed with the December 2008 denial of an evaluation in excess of 10 percent for the left lower extremity neuritis, the RO issued a rating decision, in November 2012, that addressed the neuritis disability. In particular, the RO increased the rating for the neuritis from 10 percent to 20 percent, effective from October 11, 2012. However, the appellant did not state then or thereafter that he was satisfied with the disability ratings assigned for the neuritis disability. The law provides that in these circumstances, it is to be presumed that the Veteran is seeking the maximum benefit allowed by law and regulation, and "it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore the issues on appeal are as listed on the title page. In March 2011, a Travel Board hearing was held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the claims. Virtual VA does currently contain evidence pertinent to the claims, namely VA treatment records dated between September 2006 and April 2012. Otherwise, Virtual VA does not contain any other evidence that is not already included in the paper claims files. The issue of entitlement to an increased rating for the gunshot wound (GSW) scarring has been raised by the record (see, e.g. report of August 2008 VA examination). The issue of entitlement to service connection for Muscle Group (MG) X and MG XIII has been raised by the record (see, e.g. report of October 2012 VA examination). The issue of clear and unmistakable error (CUE) in the rating of February 1993 that only granted service connection for two scars but not muscle or nerve damage from a long-track bullet wound and only assigned noncompensable ratings for the scars (despite a November 1991 VA examination finding of a hypertrophied and somewhat tender scar) was raised by the Veteran in July 2010. None of these issues has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over those matters and they are all referred to the AOJ for appropriate action. The issue of entitlement to an increased evaluation for the neurological manifestations of the GSW residuals of the left thigh, to include a rating in excess of 10 percent prior to October 11, 2012, and an evaluation in excess of 20 percent thereafter, is addressed in the REMAND portion of the decision below and that matter is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In testimony presented on April 23, 2013, and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter. 2. On September 29, 2006, the RO received the Veteran's VA Form 21-526 in which he sought service connection for headaches, a "sleep condition", "chronic fatigue", a left leg wound and nerve damage in the left leg. 3. A November 9, 2006 VA letter informed the Veteran that he had up to one year from the date of the letter to submit the information and evidence necessary to substantiate his claim and that, if his claim was decided before one year from the date of the letter, he would still have the remainder of the one-year period to submit additional information or evidence. 4. The Veteran underwent VA medical examinations on January 19, 2007; the examining physician stated that the Veteran had a moderate sleep disturbance and that he had a moderate amount of reactive depression since coming back from the Gulf War. 5. On September 17, 2007, the Veteran sought VA medical treatment with a history that included insomnia, depression and possible posttraumatic stress disorder (PTSD). 6. VA treatment records reflect that the Veteran was diagnosed with PTSD on September 28, 2007; this diagnosis was confirmed the next month and the Veteran was prescribed medication for sleep. 7. On Monday, October 1, 2007, the RO received a letter from the Veteran in which he stated that he had been diagnosed with PTSD and that the PTSD was related to the illness he filed for in 2006. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of his Substantive Appeal on the issue of entitlement to an increased evaluation for the GSW residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for the assignment of an effective date of September 29, 2006, but not earlier, for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.155, 3.156(b), 3.157, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c). The Veteran filed a substantive appeal (VA Form 9) in June 2009 with respect to his claim of entitlement an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter. On April 23, 2013, the Veteran was afforded a Travel Board hearing. A transcript of the hearing testimony has been associated with the claims file. The transcript of the hearing shows that the appellant withdrew his appeal for his claim of entitlement to an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter. That oral statement, when transcribed, became a "writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). Therefore, the appeal as to the claim for an increased rating for the GSW residuals of the left thigh muscles has been withdrawn. See 38 C.F.R. § 20.204. As the Veteran has withdrawn his appeal as to the issue of entitlement to an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter, there remain no allegations of error of fact or law for appellate consideration on those that claim. Accordingly, the Board does not have jurisdiction to review the appeal as to the appellant's claim for an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter. Therefore, the issue is dismissed, without prejudice. II. Earlier effective date claim The Veteran is seeking entitlement to an effective date earlier than October 1, 2007, for the award of service connection for his PTSD. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The appellant's earlier-effective-date claim arises from his disagreement following the initial grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the United States Supreme Court has held that, even if there has been an error in VCAA notice, it should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the appellant nor his representative has alleged any prejudicial or harmful error in VA notice, and the Board perceives none, particularly in view of Dingess, supra. All relevant facts with respect to the appellant's claim addressed in the decision below have been properly developed. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim. Therefore no useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. The Merits of the Claim The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. With a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). If a claimant files an application for service connection with VA, and the claim is disallowed, he has the right to appeal that disallowance to the Board. See, e.g., 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the claimant does not initiate an appeal within one year, or if the claimant fails to perfect the appeal by filing a timely substantive appeal, or if the claimant initiates a timely appeal and the appeal is later withdrawn or denied, the disallowance becomes final. See 38 C.F.R. §§ 20.204, 20.302, 20.1100, 20.1103. Any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 U.S.C.A. §§ 5110(a), (i), 5108; 38 C.F.R. §§ 3.156(c), 3.400(q), (r). However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). On September 29, 2006, the RO received the Veteran's VA Form 21-526 in which he sought service connection for headaches, a "sleep condition", "chronic fatigue", a left leg wound and nerve damage in the left leg. A November 9, 2006 VA letter informed the Veteran that he had up to one year from the date of the letter to submit the information and evidence necessary to substantiate his claim and that, if his claim was decided before one year from the date of the letter, he would still have the remainder of the one-year period to submit additional information or evidence. Review of the medical evidence of record reveals that the Veteran underwent VA medical examinations on January 19, 2007; the examining physician stated that the Veteran had a moderate sleep disturbance and that he had a moderate amount of reactive depression since coming back from the Gulf War. On September 17, 2007, the Veteran sought VA medical treatment with a history that included insomnia, depression and possible posttraumatic stress disorder (PTSD). VA treatment records reflect that the Veteran was diagnosed with PTSD on September 28, 2007; this diagnosis was confirmed the next month and the Veteran was prescribed medication for sleep. On Monday, October 1, 2007, the RO received a letter from the Veteran in which he stated that he had been diagnosed with PTSD and that the PTSD was related to the illness he filed for in 2006. A VA Form 119, dated in November 2007, indicates that the Veteran stated that he was seeking service connection for PTSD. He said that he thought that his initial claim for Gulf War illness should have included PTSD. He also provided testimony to that effect during his April 2013 Travel Board hearing. As noted above, regulations provide that an effective date of an award of service connection is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Board has considered the applicability of 38 C.F.R. § 3.156(b) to the records received after the Veteran submitted claims for service connection in September 2006, to include for sleep condition and chronic fatigue, as well as the Court's holding in Bell v. Derwinski, 2 Vet. App. 611 (1992) that VA has constructive notice of VA treatment records. Under 38 C.F.R. § 3.156(b), if new and material evidence is received within one year of issuance of a decision, or within the appeal period, the evidence is to be considered in conjunction with the claim that gave rise to the decision. Here, the Secretary can be deemed to have constructive knowledge of the VA health care personnel's September 2006 referral of the Veteran for psychiatric evaluation as per the holding in the Bell case, supra. It was this referral which directly led to the initial diagnosis of PTSD. Subsequent VA treatment records indicate that the Veteran had reported PTSD symptoms of difficulty falling asleep, waking after sleeping for less than two hours and restless sleep. His VA treatment plan for PTSD included medication to aid in sleeping. In addition, the VA medical examination conducted in January 2007 yielded findings that the Veteran had a moderate sleep disturbance and that he had a moderate amount of reactive depression since coming back from the Gulf War. Furthermore, the Veteran clarified that his service connection claims included PTSD in a letter received at the RO on Monday, October 1, 2007. The claims file does not include the envelope that contained this letter . The Board finds that the "mailbox rule" (38 C.F.R. § 20.305(a)) is applicable in this case. The mailbox rule provides that a response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. See 38 C.F.R. § 20.305(a). In the event that the postmark is not of record, the mailbox rule applies and the postmark date will be presumed to be 5 days prior to the date of receipt of the document by VA. In calculating this 5 day period, Saturdays, Sundays, and legal holidays will be excluded. Id. Thus, by application of the mailbox rule, the postmark date would be presumed to be September 24, 2007. However, as the letter makes internal reference to the September 28, 2007 VA diagnosis of PTSD, it had to have been composed on or after September 28, 2007. In any case, the letter clarifying the Veteran's claim for PTSD was received within the one-year period he was given notice of in the November 9, 2006 duty to assist letter and it was presumed postmarked within one year of his September 29, 2006 VA Form 21-526 containing a claim for a sleep condition. Therefore, the Board finds that the VA medical evidence dated in January 2007, and September 2007, was received within the appeal period. If the evidence demonstrating a relationship between some incident of service and a disability was received within the appellate period, it is to be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The date of the claim would be the date of the original claim for service connection for a sleep condition as a symptom of PTSD which was received on September 29, 2006. An earlier date is not warranted because the evidence of record indicates that the appellant did not submit a claim for service connection for PTSD within one year of his separation from service in September 1991, or prior to September 29, 2006. In addition, there are no VA treatment records dated prior to September 2007. The Board is unable to identify a reasonable basis for granting an effective date earlier than September 29, 2006, for service connection for PTSD. As the appellant has sought on appeal an effective date of the date he filed his original claim for service connection for PTSD and as the date of receipt of his original claim was September 29, 2006, this decision is a full grant with respect to the Veteran's claim for an effective date earlier than October 1, 2007, for service connection for PTSD. ORDER The appeal as to the Veteran's claims of entitlement to an increased evaluation for the gunshot wound (GSW) residuals of the left thigh muscles, to include a rating in excess of 10 percent prior to October 1, 2007, and an evaluation in excess of 30 percent thereafter, is dismissed. Entitlement to an effective date of September 29, 2006, for the award of service connection for PTSD, is granted. REMAND A determination has been made that additional evidentiary development is necessary with respect to the claims for higher ratings. Accordingly, further appellate consideration will be deferred and this case is remanded to the RO for action as described below. The Veteran underwent a VA medical examination in January 2007. The examiner noted the Veteran's GSW and stated that bullet fragments had settled in place against a nerve in the left mid-thigh. The Veteran's complaints of numbness and tingling in the left thigh and calf were also noted. The examiner further stated that the nerves that were involved were "peripheral nerves" of the left thigh and calf. However, the examiner did not specifically identify which nerves were involved. Nonetheless, the RO, in an April 2007 rating decision, granted service connection for peripheral neuritis of the left lower extremity and assigned an initial evaluation of 10 percent, effective September 29, 2006. The 10 percent evaluation was assigned under the requirements of Diagnostic Code 8520; this code is for the sciatic nerve. The RO did not offer any explanation as to why the sciatic nerve and only the sciatic nerve was affected. The Veteran underwent another VA medical examination in August 2008. The examiner again identified the affected nerves as the peripheral nerves of the left lower leg and foot without naming which specific nerves were involved. The RO subsequently denied an evaluation in excess of 10 percent, again pursuant to Diagnostic Code 8520. The Veteran appealed that denial and he was afforded a VA medical examination on October 11, 2012. In the course of that examination the following nerves were identified by the examiner as being affected by the service-connected GSW: external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial and anterior crural (femoral). The examiner did not indicate if those nerves had been affected throughout the course of the appeal period. In a rating action issued in November 2012, the RO increased the evaluation for the left lower extremity neuritis to 20 percent. The increased evaluation was still listed as being under the provisions of Diagnostic Code 8520. It is unknown how the RO determined that the appellant's sciatic nerve, and only that nerve, has been affected by the service-connected peripheral neuritis of the left lower extremity. In addition, neither the May 2009 Statement of the Case (SOC) nor the October 2012 Supplemental Statement of the Case (SSOC) addressed the criteria found under the Diagnostic Codes that relate to the nerves identified in the October 2012 VA medical examination - namely Diagnostic Codes 8521 through 8526. The RO did not explain why these codes, relating to the external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial and anterior crural (femoral) nerves, were not considered to be applicable. Based on the foregoing, the Board finds that a comprehensive VA neurological examination is in order to identify the nature and extent of the appellant's left lower extremity neuropathy, and specifically to accurately identify each manifestation and the extent and severity thereof during the entire appeal period. The Board finds that such an examination is necessary to evaluate the disability on appeal and to delineate the symptomatology related to that disability. These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the AMC/RO for the following: 1. Assure that all notification and development action required by 38 U.S.C. A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain from the appellant the names and addresses of all VA, government, and private physicians and/or medical facilities that have provided him with any treatment for his neuritis since 2007, and secure all available relevant reports not already of record from those sources. In particular, obtain all outstanding VA treatment records. 3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his attorney should also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, schedule the appellant for an examination by a neurologist to determine the extent and severity of all left lower extremity peripheral neuropathy. The entire claims file (i.e., including the electronic records contained in Virtual VA) and this remand must be made available to the examiner for review in conjunction with the examination. The examiner must indicate that said review was accomplished. If the physician does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available must be printed and provided to the physician for review. Any testing deemed necessary must be performed. 38 C.F.R. § 4.124a includes the criteria applicable to rating the level of disability caused by the appellant's left lower extremity peripheral neuropathy. These Diagnostic Codes distinguish the type of paralysis into two parts -- complete and incomplete paralysis. Under incomplete paralysis, the type of paralysis is further broken down into three categories: severe, moderate, and mild. With these categories in mind, the examiner must classify the appellant's impairment(s) from the left lower extremity peripheral neuropathy, distinguishing among the categories and identifying each nerve or group of nerves affected. If the examiner uses results obtained from an EMG and/or nerve conduction velocity tests or other such tests, the examiner must explain, in terms meaningful to a layperson, the base line results versus those obtained for the appellant. The examiner must explain the meaning of any abnormal results that are obtained. The examiner should also explain how any abnormal result classifies the appellant as having mild, moderate, or severe incomplete paralysis or complete paralysis with respect to each affected nerve. The examiner must, to the extent possible, indicate the historical degree of impairment since 2007 due to each affected nerve. Also, the physician must explain whether the peripheral neuropathy affects the motor and/or sensory nerves, and which nerves it affects. The examiner should explain why those results show mild, moderate, severe incomplete paralysis or complete paralysis. The examiner must explain in detail what limitation of motion and function is caused by the left lower extremity peripheral neuropathy. The examiner must additionally specifically explain which nerves of the left lower extremity are affected. The neurologist must report whether the appellant suffers from any tics, pain, numbness, foot drop, muscle weakness and/or atrophy as well as to record the appellant's ranges of motion for each joint found to be affected by the neuropathy (i.e., hip, knee, etc.), with each of the normal ranges of motion indicated in degrees. 5. Upon receipt of the VA examination report, conduct a review to verify that all requested opinions have been provided. If information is deemed lacking, refer the report to the VA examiner for corrections or additions. 6. If any additional development is necessary to re-adjudicate the issue, especially in light of any newly received records, that development should be done. 7. After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and re-adjudicate the claim on appeal (evaluation from 2007). The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, to include 38 C.F.R. §§ 3.321 and Hart v. Mansfield, 21 Vet. App. 505 (2007). 8. If the benefit sought on appeal remains denied, provide the appellant and his representative a Supplemental Statement of the Case (SSOC) and an appropriate period of time for response. The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs