Citation Nr: 1615828	
Decision Date: 04/19/16    Archive Date: 04/26/16

DOCKET NO.  11-00 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Whether vacatur of the Board of Veterans' Appeals August 14, 2013 decision is warranted.

2.  Entitlement to service connection for a disability claimed as left hand arthritis.

3.  Entitlement to service connection for a disability claimed as right hip arthritis.

4.  Entitlement to service connection for a disability claimed as left hip arthritis.

5.  Entitlement to service connection for left foot arthritis.

6.  Entitlement to service connection for Hepatitis C.

7.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder.  

8.  Entitlement to service connection for right hand arthritis.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from March 1972 to March 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

In June 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ).  

In May 2012, the Board remanded the appeal for additional development.  In August 2013, the Board denied service connection for disorders of the right and left hip, left hand and left foot, and for Hepatitis C.  The issues of service connection for right hand arthritis and for an acquired psychiatric disorder, to include PTSD and major depressive disorder, were remanded for further development.  

As discussed below, the Board's August 2013 denial as to the service connection issues is vacated herein and a new decision is being issued.  The Board acknowledges that additional records were added to the claims folder following this decision, but they are not relevant to the issues decided and a remand for a supplemental statement of the case is not required.  

The issues of entitlement to service connection for right knee and right wrist disorders have been raised by the record.  See VA Memo dated June 22, 2013.   The Board does not have jurisdiction over these issues and they are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action.  38 C.F.R. § 19.9(b) (2015).  

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of service connection for an acquired psychiatric disorder, Hepatitis C, and right hand arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The August 14, 2013 Board decision did not reflect the current representative.  

2.  Left hand, bilateral hip, and left foot disabilities are not shown to have been incurred during or as a result of any established event, injury, or disease during active service.  




CONCLUSIONS OF LAW

1.  The criteria for vacating the August 14, 2013 Board decision are met.  38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. § 20.904 (2015).

2.  The Veteran does not have a chronic bilateral hip disability due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2015).  

3.  The Veteran does not have a chronic left hand disability due to disease or injury incurred in or aggravated by his active military service.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).

4.  The Veteran's left foot disability was not incurred in or aggravated by his military service and osteoarthritis may not be presumed to have been incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Vacatur

On August 14, 2013, the Board denied service connection for a disability claimed as left hand arthritis, for a disability claimed as right hip arthritis, for a disability claimed as left hip arthritis, for left foot arthritis, and for Hepatitis C.  At that time, the Board recognized the Colorado Division of Veterans Affairs as the Veteran's representative.  

In March 2016, Disabled American Veterans (DAV) submitted a Motion to Vacate the Board's decision as to the issues denied.  The representative argued that the Veteran was denied due process because the Board failed to recognize the change of representation to DAV in June 2012 and rendered a decision without affording them the opportunity to review and argue the case.  

VA regulations provide that an appellate decision may be vacated by the Board at any time upon the request of the Veteran or his or her representative, or on the Board's own motion when there has been a denial of due process.  38 C.F.R. § 20.904(a).

On review, the most recent VA Form 21-22 in the claims folder is dated in June 2012 and is in favor of DAV.  The August 14, 2013 Board decision did not reflect the current representative.  In an effort to ensure due process, the Board decision is vacated as to the issues denied and a new decision will be entered as if that decision had never been made.  DAV provided additional argument in its Motion to Vacate and the Board finds no reason to request a separate informal hearing presentation on these issues.  

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met.  By correspondence dated in August and October 2009, prior to the rating decision in question, VA notified the Veteran of the information and evidence needed to substantiate a service connection claim, to include notice of the information he was responsible for providing and of the evidence that VA would attempt to obtain.  The letters also provided notice as to how VA assigns disability ratings and effective dates.  

All relevant evidence necessary for an equitable resolution of the issues decided has been identified and obtained, to the extent possible.  The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, adequate VA examinations and opinions as well as statements from the Veteran and his representative.  

In March 2016, the representative argued that the record reasonably raised the question of alternative theories of entitlement as secondary to the claimed psychiatric condition.  As explained below, the claimed bilateral hip and left hand disorders are denied based on the absence of current disability.  Regarding the left foot, the record does not contain evidence suggesting any relationship to the claimed psychiatric disorder and there is no basis to defer the issue or request further examination or opinion.

The Veteran provided testimony at a Travel Board hearing and the VLJ's actions supplemented the VCAA and complied with any hearing-related duties.  

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159 (2015).  

Analysis

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.  38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3)  and 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Without a current disability, service connection may not be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed, or at any time during the pendency of that claim.  A claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim.  McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Service connection for certain specified chronic diseases, such as arthritis, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014).

Left hand and bilateral hip disabilities

On review, the Veteran has neither provided nor identified any medical evidence showing current treatment of the claimed left hand and bilateral hip disorders.  Service treatment records and VA treatment records do not show confirmed diagnoses of any hip or left hand disorder of any sort.  Post-service VA outpatient records show that in August 2009 he complained of multiple joint pains and arthritis was suspected.  However, diagnostic testing (including Rheumatology consultation and radiological studies) failed to confirm such a diagnosis.  

VA examinations were conducted in March 2013 and the VA examiner was unable to diagnose either bilateral hip or left hand disorders.  And he has only claimed service connection for vaguely unidentifiable disabilities.  He is competent, even as a layman, to proclaim for example having experienced pain in his hips or left hand.  Indeed, he is even competent to make this proclamation absent any supporting contemporaneous medical evidence such as treatment records.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

But his lay testimony concerning this also must be credible to ultimately have probative value.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")).  And his mere complaint of pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1991).  Moreover, he is not claiming a specific type of condition that would readily lend itself to lay diagnosis or comment on etiology such as would be the case if his claim, instead, was for a separated shoulder, broken leg, pes planus (flat feet), varicose veins, tinnitus, etc.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno, 6 Vet. App. at 469.  See also 38 C.F.R. § 3.159(a)(2).  A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumptive period, or whether it can be so identified by lay observation).  Barr v. Nicholson, 21 Vet. App. 303 (2007).

For these reasons and bases, the Board rejects the Veteran's unsubstantiated lay statements as competent and credible evidence sufficient to establish the required current diagnosis of either a chronic left hand disability or bilateral hip disability or to suggest an association between any claimed but unsubstantiated disabilities and his military service.  

Consequently, the Board finds that the preponderance of the evidence is against the claims for service connection for left hand and bilateral hip disabilities and, as such, must be denied.  See 38 C.F.R. § 3.102.  

Left foot arthritis

The Veteran has the required current diagnosis to account for his complaints of left foot pain.  More specifically, a March 2013 VA X-ray report noted degenerative joint disease (DJD) of the left first metatarsophalangeal joint (MTP).  

Regarding what occurred in service, the Veteran contends that he has a left foot disability due to the physical training he incurred during his 3 years in the military, which included running up to 40-50 miles daily.  He indicated that he is a member of the 500 mile club.  The Veteran's service treatment records do not show any complaints, findings, or diagnosis regarding a left foot injury.  Further, the March 1975 discharge examination report indicates that his musculoskeletal system was considered normal.  At this examination, not only did the Veteran fail to report a history of a left foot injury but he reported that besides a viral upper respiratory infection, he was in good health.  Although there is no specific objective evidence of an in-service injury, the Veteran's report of training is consistent with the circumstances of his military service.  38 U.S.C.A. § 1154(a) (West 2014).  

Therefore, the Veteran meets the first (current disability) and second (in-service injury) requirements of the Shedden analysis.  Unfortunately, however, in this particular instance the most probative-meaning competent and credible-evidence is against this claim for a left foot disability.  

The March 2013 VA physician found that it was less likely than not that the left foot disability was related to military service.  He noted that service treatment records were negative for any complaints or treatment for a left foot injury.  He considered the Veteran's account of his left foot disability but found his reports of pain, vague and without details, such as functional impact.  The examiner considered this was not consistent with the medical record.  Especially since there was no report of a foot injury during service.  The examiner further noted that the Veteran did not complain of foot problems when examined during the 2009 VA Rheumatology evaluation.  He found the Veteran's history in regard to the onset of left foot pain unclear, in that, he was unable to give details as to when specific symptoms started.  He reiterated that there was no report of a foot injury at the March 1975 separation examination.  

Besides the unfavorable opinion the Board also notes that in reviewing his post-service history, there are no medical records reflecting complaints, diagnosis, or findings, related to a left foot disability until he applied for benefits in 2009, so not until nearly 24 years (i.e., over two decades) after the Veteran's military service ended.  There is certainly no evidence showing that he had osteoarthritis within a year of service discharge, let alone to a degree of 10 percent disabling.  

The Veteran has stated that he did not seek treatment for his left foot pain and self-medicated with marijuana and alcohol.  The Board notes that it cannot conclude lay evidence lacks credibility simply because it is unaccompanied by any contemporaneous medical evidence, such as treatment records.  But that said, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, though not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Although the March 2013 VA compensation examiner acknowledged the Veteran's in-service training, he just ultimately concluded that the Veteran's degenerative disease was not a consequence.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Moreover, in regard to the Veteran's statements that he has experienced left foot pain rather continuously since service, not only has to be competent but also credible.  See Rucker, supra.  And, again, this determination is not just based on his written statements submitted at times during the course of his appeal, but also in light of and in relation to the other evidence in the file addressing this issue.  The Board took into consideration not only his current arguments regarding the onset and severity of his left foot pain, but his past statements and clinical records.  For instance, the Board notes that when receiving VA outpatient psychiatric treatment in 1998, there was no mention of problems with his feet or any other joint.  

Essentially, the Board finds the Veteran's statements regarding in-service injury competent and credible.  In regards to his post-service history of left foot pain, the Board finds that he is competent to report continuing pain, but not credible, as far as diagnosing a chronic left foot disability and relating it to service.  The VA examiner took in consideration his statements regarding continuing post-service left foot pain, nevertheless, still found his current left foot condition unrelated to military service.  

The Board gives greater probative weight to the report and opinion of this evaluating VA physician because of the consideration of the Veteran's pertinent medical and other history - as accomplished by reviewing the evidence in the claims file, but more so based on the discussion of the underlying rationale of the opinion, which instead is where most of the probative value is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").  This examiner also has medical expertise, which is another relevant consideration adding to this opinion's greater probative value.  Moreover, this examiner's opinion is mostly supported by the other evidence of record, which, as mentioned, does not show any earlier indication of osteoarthritis or DJD, either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis.  

There is also no medical opinion in the file refuting the VA examiner's unfavorable opinion, and the Veteran's lay statements are insufficient to rebut this opinion given their lessened probative value.  Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  

For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim.  Instead, the preponderance of the evidence is unfavorable, so the claim must be denied.  


ORDER

The August 14, 2013 Board decision, which denied service connection for left hand arthritis, right hip arthritis, left hip arthritis, left foot arthritis, and Hepatitis C, is vacated.  

Service connection for a disability claimed as left hand arthritis is denied.  

Service connection for a disability claimed as right hip arthritis is denied.  

Service connection for a disability claimed as left hip arthritis is denied.  

Service connection for left foot arthritis is denied.


REMAND

As to all issues remanded, updated VA treatment records should be obtained.  See 38 C.F.R. § 3.159(c)(2).


Acquired psychiatric disorder, to include PTSD and major depressive disorder

In August 2013, the Board remanded this issue for additional development, to include requesting in-service mental health treatment records and for a VA addendum.  

In August 2013, the Appeals Management Center (AMC) sent the Veteran a letter indicating that they requested separately stored mental health clinic records associated with treatment in January 1974 from the National Personnel Records Center (NPRC).  On review, the Board is unable to find the request to NPRC or any response and these records are not referenced in the March 2014 supplemental statement of the case.  Additional efforts must be made to obtain these records and to comply with the prior remand.  Stegall v. West, 11 Vet. App. 268 (1998).

In December 2013, the AMC requested an addendum to the prior VA psychiatric examination.  The request indicated that only a medical opinion was needed and that no examination was required unless deemed necessary by the examiner.  Additional opinion was obtained in January 2014.  The examiner stated that she requested an in-person examination with the Veteran and the clerk attempted to contact him by phone but the number had been disconnected.  A letter was also sent via registered mail and was returned.  Because they were unable to reach the Veteran, the examination was based on review of the records only.  The examiner further stated that for these reasons, there was no recent biographical information available and no report provided by the Veteran.  The only information that could be considered is what was available in the chart and this could affect the outcome of the examination due to lack of self-report of the Veteran, which is commonly considered an important aspect of psychological assessment.  The examiner went on to discuss evidence of record in detail but ultimately concluded that it would be impossible to provide the opinion based on limited evidence without resorting to speculation.  

The claims folder shows that the Veteran submitted a change of address in January 2014, but as noted, the VA was not able to reach him to advise that an in-person examination was needed.  On review, efforts should be made to verify his current mailing address and thereafter, attempts should be made to schedule an in-person psychiatric examination and obtain the requested opinion. 

Hepatitis C

In its August 2013 decision, the Board denied service connection for Hepatitis C based on a finding that it was as likely as not due to willful misconduct (intravenous drug abuse).  As noted, that decision is vacated herein.  

VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990.  See VAOPGCPREC 7-99; 64 Fed. Reg. 52375 (1999); Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001).  The exception, as explained in Allen, is when a disability like alcohol or drug abuse is secondary to an already service-connected disability.  

In March 2016, the representative essentially argued that the Veteran's drug abuse was secondary to his psychiatric disorder.  On review, the Board finds it necessary to ask the VA psychiatric examiner whether the Veteran's intravenous drug abuse is secondary to any psychiatric disorder and will defer the Hepatitis C issue pending completion of the claim of service connection for an acquired psychiatric disorder.  

Effective March 19, 2015, VA adopted as final an interim rule adopting the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  The provisions of the final rule shall apply to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014.  The Secretary does not intend for the provisions of this final rule to apply to claims that have been certified for appeal to the Board or are pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit even if such claims are subsequently remanded to the AOJ.  See 80 Fed. Reg. 14308-09 (March 19, 2015); 79 Fed. Reg. 45093-99 (August 4, 2014).  The appeal as to this issue was originally certified to the Board in March 2011 and subsequently remanded.  Under these circumstances, the provisions of DSM-IV remain for application.

Right hand arthritis

In January 2014, an addendum was obtained regarding right hand arthritis.  The examiner stated that it was less likely as not that the right hand arthritis was caused by military service.  The examiner discussed the Veteran's in-service and post-service history and concluded the "history of multiple traumas to the hands with fractures from working as plumber and from numerous fist fights, for years after leaving military service, is consistent with the finding on the right hand x-rays of post-traumatic degenerative joint disease of the hand."

In March 2016, the representative raised the theory of secondary service connection, arguing that the Veteran's fighting was a manifestation of his psychiatric disorder.  

On review, the Board finds it necessary to ask the VA psychiatric examiner whether the Veteran's history of frequent fighting is a manifestation of any psychiatric disorder and will defer the right hand issue pending completion of the claim of service connection for an acquired psychiatric disorder.  

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Request records from the VA Medical Center in Denver, Colorado, for the period from August 2013 to the present.  

2.  Contact NPRC and request any in-patient clinical or separately stored mental health records associated with the Veteran's treatment in January 1974 at the Regimental Dispensary 3d Force Regiment FPO San Francisco, California.  All requests and responses received must be documented in the claims folder.  If VA determines that the records do not exist or that further efforts to obtain the records would be futile, it should complete a formal finding for the record and provide notice to the Veteran.  

3.  Verify the Veteran's current mailing address.  All efforts to obtain this information should be documented in the claims folder.  

4.  Thereafter, schedule the Veteran for an in-person VA psychiatric examination.  If possible, the examination should be scheduled with the same psychologist who provided the January 2014 addendum.  The electronic claims folder must be available for review.  

The examiner is requested to:

(a) Identify all Axis I psychiatric disorders pursuant to DSM-IV and for each disorder provide an opinion as to whether it is at least as likely as not that it is related to active service or events therein.  

(b) Identify any Axis II personality disorders pursuant to DSM-IV and for each disorder, provide an opinion as to whether it is at least as likely as not that it was subject to, or aggravated by, a superimposed in-service disease or injury that resulted in additional current psychiatric disability.  

(c) Provide an opinion as to whether it is at least as likely as not that the Veteran's use of intravenous drugs is secondary to any diagnosed psychiatric disorder.  

(d) Provide an opinion as to whether it is at least as likely as not that the Veteran's history of fighting is a manifestation or otherwise associated with any diagnosed psychiatric disorder.  

A complete rationale should be provided for any opinion offered.  

5.  The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655 (2015).  

6.  Upon completion of the requested development and any additional development deemed appropriate, readjudicate the issues of entitlement to service connection for an acquired psychiatric disorder, Hepatitis C, and right hand arthritis.  If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond.  

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).



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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 2014).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs