Citation Nr: 1336198 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-14 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including major depressive disorder due to Lariam poisoning. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to February 1977. He appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO in Togus, Maine, however, certified his appeal to the Board. He originally claimed entitlement to service connection specifically for major depressive disorder (MDD). But the medical evidence of record indicates he also has received diagnoses of generalized anxiety disorder (GAD), attention deficit disorder, and attention deficit hyperactivity disorder (ADHD). So the Board has expanded his claim to include all acquired psychiatric disorders, meaning also these additional diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). In February 2012 the Veteran revoked Disabled American Veterans (DAV) from being his representative and, instead, appointed Woods & Woods, LLP. In July 2012 the Board remanded these claims to the RO for further development, including especially to obtain outstanding VA treatment records and then to have a VA compensation examiner provide a supplemental medical nexus opinion after considering additional evidence. In June 2013 the Veteran appointed Penelope E. Gronbeck of Jackson & MacNichol of South Portland, Maine, as his new representative. A power of attorney, executed on either VA Form 21-22 or VA Form 21-22a, Appointment of Attorney or Agent as Claimant's Representative, is required to represent a claimant before VA and to authorize VA's disclosure of information to any person or organization representing a claimant before VA. 38 C.F.R. § 14.631(a) (2013). Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim, with a few noted exceptions inapplicable here. 38 C.F.R. § 14.631(e)(1). A power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). Also in June 2013, in support of his claims, the Veteran testified at a hearing at the RO in Togus before the undersigned Veterans Law Judge of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. A transcript of the proceeding is of record. In this decision the Board is deciding, indeed granting, the claim of entitlement to service connection for an acquired psychiatric disorder due to Lariam poisoning. And because of this grant, the Veteran will now have a service-connected disability that needs to be rated, which in turn will determine whether his derivative TDIU claim is considered under 38 C.F.R. § 4.16(a) or (b) (2013). So the Board is temporarily deferring consideration of his derivative TDIU claim and, in the meantime, again remanding this derivative claim to the RO. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is in relative equipoise as to whether symptoms of an acquired psychiatric disorder have been present continuously since service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran has an acquired psychiatric disorder that was incurred during his service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, though, since the Board is granting this claim there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist obligations. This is because, even were the Board to assume for the sake of argument there has not been, this still would be inconsequential and, therefore, at most amount to nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Because this Veteran is receiving the requested benefit, there simply is no such possibility. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court/CAVC) held that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Governing Statutes, Regulations and Case Law Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). But § 3.303(b) applies only to "chronic diseases" as specifically defined in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Psychoses are chronic diseases according to 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.384, in turn, defines a "psychosis" to include the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. The psychoses are considered chronic, per se, and therefore also will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In deciding a claim, the Board must assess the probative value of all of the relevant evidence, so including both the lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This evaluation generally involves a three-step inquiry. First, the Board must determine whether the evidence is competent. See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In the third and final step, the Board must assess the probative value and weight of the evidence in light of the entire record. Gonzales, 218 F.3d at 1380-81. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1992). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although the latter is not determinative of the opinion's probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (conversely holding that the Board may reject a medical opinion based on an inaccurate factual basis). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and the electronic ("Virtual VA") portion of it. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in detail, certainly not exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran contends that during his military service he was ordered to take a drug, specifically Lariam (also referred to as mefloquine), to prevent malaria, and that soon after taking it he became mentally ill from the severe neuropsychiatric side effects. His service treatment records (STRs) confirm he was given a chloroquine permaquine tablet for malaria prophylaxis in May 1978. However, his STRs are unremarkable for any psychiatric complaints either before or after that May 1978 event. Significantly, his May 1980 separation examination shows a normal psychiatric system. The STRs also do not reflect that he was ever given Lariam or a generic equivalent. Although he has spent years insisting he was given Lariam in service and that the drug was responsible for all subsequently diagnosed psychiatric disorders, the Board need not make a determination regarding any use or prescription of Lariam during his service and its consequences, if any, because there is another basis for granting his claim. That is to say, his purported use of anti-malarial drugs is not ultimately relevant to the Board's analysis. In adjudicating this claim the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. During a December 2007 examination performed for the purpose of a state disability determination, the Veteran indicated he had been suffering from depression, anxiety, poor sleep, etc., for 30 years - so dating back to his service that had ended in 1977. Therefore, according to him, his symptoms had begun during his service. In January 2008 he told an evaluating psychologist that he had never been the same since taking the drug Lariam in service. As also apparent from a March 2008 VA progress note and other treatment records in the file, he has indicated that he had been suffering from the same sorts of psychiatric symptoms for many years and indeed since his service. Diagnoses have included MDD, GAD, social anxiety, and ADHD. He has continuously related his symptoms back to taking the drug Lariam while in service. In his hearing testimony, he attested that he quickly developed side effects after taking that drug, such as paranoia, and that he resultantly was reassigned from having to perform alert hostage and rescue missions to a MASH unit. He also said he could no longer do any paratrooping, so eventually became a truck driver. And when responding to the question of whether he was actually treated for these side effects while in service, he said he mentioned to his major sergeant that "something was wrong", but was discouraged from getting any help or treatment, except maybe by a company nurse, who did not detect anything significant or noteworthy, but perhaps owing to her inexperience with this type of abnormality. He then went on to discuss the continued effects the drug has had on his life since service, both in terms of suicidal ideations (at least once, perhaps twice) and social relationship problems, both in his personal life and at his job (e.g., repeatedly late to work, missing work, messing up assignments, etc.). He said that it was not until about the year 2000 that he finally received the proper evaluation, treatment and diagnosis, also pointing out that he last had worked in 2008 and had been on Social Security Administration (SSA) disability since 2009. A March 2008 private diagnostic evaluation report reveals he first had begun seeking mental health treatment approximately eight years earlier - so coinciding with the year 2000 he indicated during his hearing. But in a March 2009 written statement he explained that he actually had begun suffering from depression, anxiety, paranoia, and other symptoms much earlier, while in service, and that the symptoms had been continuous since. He dated their onset to the prescription of Lariam. In March 2009, he had a VA psychological evaluation. He indicated that his then current symptoms dated back to his service and that he had been suffering from essentially the same symptoms since his service. He had a VA psychiatric examination later that same year, in November 2009. The examiner reviewed the claims file and noted there was no record of psychiatric treatment or evaluation during the Veteran's military service and that there was no evidence of treatment until many years after his discharge from military service. But, as already alluded to, continuous symptoms, not necessarily treatment for them, are the essence of any evidence of continuity of symptomatology under § 3.303(b). See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). See also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (indicating the Board must make an express credibility finding regarding lay evidence and finding an examination inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). That said, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The VA examiner goes on to note that research did not clearly identify mental health symptoms appearing on the basis of a single dose of Lariam, nor did it identify symptoms lasting for decades after any number of doses. Furthermore, there was no evidence showing the Veteran was actually given Lariam, though the examiner accepted this nonetheless was a possibility. Thus, he concluded it was less likely than not the Veteran's current problems with depression and anxiety were caused by the medication that was given to him during his service. In a November 2009 letter, the Veteran's sister wrote that she began seeing changes in him even before he left service and that current symptoms included outbursts of anger and irrational thinking. She indicated he was unemployed and could not hold a job. And, as already mentioned, the record confirms he is unemployed and consequently receiving disability benefits from the SSA. In furtherance of his claim, the Veteran submitted a statement from R.N., M.D., in May 2010. Dr. R.N. wrote that as a preventative medicine physician with a history of research and publication related to mefloquine, he was recently approached by the Veteran for a medical opinion. Dr. R.N. indicated that, although he had not established a doctor-patient relationship with the Veteran and had not examined him, in his correspondence with the Veteran he had reported a credible history of exposure to mefloquine that had occurred in conjunction with his military service. Dr. R.N. further stated that it was his professional opinion that that exposure was relevant in considering the Veteran's potential to have experienced long-term service-related mental health disability. Specifically, Dr. R.N. asserted that mefloquine was a potent and highly dose-dependent neurotoxin in animal models. In doses as low as 10 µM, it had been demonstrated to inhibit neuronal electrical synaptic transmission via loss of connexin gap function system. Dr. R.N. also explained that mefloquine neurotoxicity could induce chronic mental health disability. In an August 2010 written statement, the Veteran indicated that symptoms of paranoia and anxiety began after taking Lariam in service and that his symptoms have persisted. He stated that during service he told his superiors that he could no longer perform parachute jumps. He also indicated that he considered seeking psychiatric treatment but was dissuaded by his commanding officer. In January 2013, the November 2009 VA examiner reviewed the record to provide supplemental comment concerning this case (as the Board had requested when remanding this claim in July 2012). This VA examiner indicated the Veteran had MDD. This VA examiner explained why he did not believe the Veteran's current psychiatric problems were due to Lariam prescribed in service. Indeed, he emphasized that there was no indication that Lariam was ever prescribed. He offered a comprehensive rationale for why the Veteran's current psychiatric disorders were not due to the alleged single dose of Lariam in service. This VA examiner therefore again concluded the Veteran's current psychiatric problems were "less likely than not" caused by or the result of events occurring during his service. There was notably less explanation or rationale for why, in his opinion, the Veteran has not, even those points notwithstanding, been experiencing continuous symptoms since his service. So in this other equally important respect, the opinion is less probative. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). As such, the January 2013 VA examiner's opinion as it applies to whether a current psychiatric disorder is otherwise related to service (that is, other than due to the alleged Lariam ingestion therein) is not probative. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Testimony and argument presented during the June 2013 hearing maintained the Veteran's current psychiatric symptoms had their onset in service and persisted until present times. The Veteran has been consistent in his recitation of events. In particular, the Board sees that he has regularly stated that his psychiatric symptoms began in service and have continued uninterrupted ever since. He is competent to provide evidence regarding his psychiatric symptomatology, as it is readily apparent to him. Layno, supra. His assertions regarding continuity of psychiatric symptomatology since service also are credible, given their consistency, so ultimately probative. Moreover, he often gave this account of events and of just how long he had experienced relevant symptoms in the course of his medical treatment. Statements made in the course of medical treatment are particularly credible. See Rucker, 10 Vet. App. 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The consistency of his allegations, coupled with corroboration from his sister, further tends to establish credibility. Caluza, supra. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. Instead, this need only be an as likely as not proposition, which in this particular instance, for the reasons and bases discussed, it is. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Alemany, 9 Vet. App. at 519. ORDER Service connection for an acquired psychiatric disorder is granted. REMAND The Board has granted service connection for an acquired psychiatric disorder. This is the Veteran's only adjudicated service-connected disability. He is additionally claiming entitlement to a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities. 38 C.F.R. § 4.16 (2013). Generally, a prerequisite to the assignment of a TDIU is that, if there is only one service-connected disability, it must be ratable at 60 percent or more or, if there are two or more disabilities, at least one must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. § 4.25 (combined ratings table). But in the event the criteria for a TDIU are not met under 38 C.F.R. § 4.16(a), and it is nevertheless determined the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the rating boards must submit the claim to the Director of the Compensation and Pension Service for special extra-schedular consideration under the alternative provisions of 38 C.F.R. § 4.16(b). The RO, therefore, needs to first rate the Veteran's newly service-connected acquired psychiatric disorder - that is, assign a percentage evaluation for this now service-connected disability. The RO can then determine whether consideration of this derivative TDIU claim is warranted under 38 C.F.R. § 4.16(a) or (b). Accordingly, this claim is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Rate the Veteran's newly service-connected acquired psychiatric disorder. 2. Based on this disability rating, make a determination of whether his derivative TDIU claim must be considered under 38 C.F.R. § 4.16(a) or (b). If under (b), and it is suggested he is unemployable because of this disability, make the appropriate referral to the Director of the Compensation and Pension Service for the required extra-schedular consideration. 3. If this derivative TDIU claim continues to be denied, on whatever basis (38 C.F.R. § 4.16(a) or (b)), send the Veteran and his attorney a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this derivative claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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 or by the Court 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs