Citation Nr: 1639683 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 09-34 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether clear and unmistakable error (CUE) is present in a January 1993 rating decision that assigned an initial noncompensable disability rating for the service-connected patellofemoral pain syndrome of the right knee (right knee disability). 2. Whether clear and unmistakable error (CUE) is present in a January 1993 rating decision that assigned an initial noncompensable disability rating for the service-connected patellofemoral pain syndrome of the left knee (left knee disability). 3. Whether clear and unmistakable error (CUE) is present in a January 1993 rating decision that assigned an initial noncompensable disability rating for the service-connected right shoulder impingement syndrome (right shoulder disability). 4. Whether clear and unmistakable error (CUE) is present in a January 1993 rating decision that assigned an initial noncompensable disability rating for the service-connected status post right hand 5th metacarpal fracture (right finger disability). 5. Whether clear and unmistakable error (CUE) is present in a January 1993 rating decision that denied entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities. 6. Entitlement to an effective date earlier than May 30, 2007 for service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (back disability). 7. Entitlement to service connection for carpal tunnel syndrome, right hand, claimed as neurological condition. 8. Entitlement to service connection for left ulnar entrapment neuropathy at the elbow level, claimed as a neurological condition. 9. Entitlement to service connection for radiculopathy of the right lower extremity. 10. Entitlement to service connection for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from November 1983 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 and September 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and the Appeals Management Center (AMC) in Washington, DC, respectively. In May 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of the hearing is of record. In July 2015, the Board dismissed the issues of entitlement to an increased rating for the right knee disability in excess of 0 percent prior to June 15, 2012, and in excess of 10 percent thereafter; an increased rating for the left knee disability in excess of 0 percent prior to June 15, 2012, and in excess of 10 percent thereafter; and an initial rating in excess of 10 percent for the left shoulder disability due to the Veteran's withdrawal of those appeals. The Board reopened and remanded service connection for a back disability for a VA examination with a medical opinion to ascertain the current nature and etiology of the claimed back disability. The Board explained that the rating issues on appeal involving CUE in the January 1993 rating decision had been inaccurately adjudicated by the RO as "reopening" of a rating, which was legally impossible, and recharacterized the issues as CUE appeals. The Board remanded the CUE appeals for AOJ adjudication with issuance of a Supplemental Statement of the Case (SSOC). Because the record shows that the September 2015 SSOC addressed the previously remanded CUE issues, the Board finds that there has been compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The issue of service connection for a back disability is no longer on appeal. Based on the medical evidence obtained pursuant to the Board's prior remand directives, the AMC, in the September 2015 rating decision, granted service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome with a 20 percent initial rating effective from September 10, 2015. Because the benefits sought on appeal (service connection) were granted in full, the previously remanded issue of service connection for a back disability is not in appellate status. In November 2015, the Veteran filed a Notice of Disagreement with respect to the portion of the September 2015 rating decision assigning an effective date of September 10, 2015 for the back disability. In November 2015, the AOJ granted an earlier effective date of May 30, 2007 for service connection for the back disability, and a Statement of the Case was subsequently issued. In December 2015, the Veteran perfected the appeal for an earlier effective date for service connection for the back disability, and the issue was certified to the Board. The issues of entitlement to (1) an effective date earlier than May 30, 2007 for service connection for the back disability, (2) service connection for carpal tunnel syndrome of the right hand (claimed as neurological condition), (3) service connection for left ulnar entrapment neuropathy at the elbow level (claimed as a neurological condition), (4) service connection for radiculopathy of the right lower extremity, and (5) service connection for radiculopathy of the left lower extremity are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A claim seeking service connection for the right and left knee disabilities, right shoulder disability, and a right finger disability was received by VA on November 24, 1992. 2. The January 5, 1993 rating decision granted service connection for the right and left knee disabilities, right shoulder disability, and right finger disability, and assigned initial noncompensable (0 percent) disability ratings effective from November 19, 1992, the first day after service separation. 3. The January 5, 1993 rating decision contained CUE in assigning noncompensable ratings for the right knee disability, the left knee disability, and the right shoulder disability so as to not constitute a reasonable exercise of rating judgment because the RO did not correctly apply the regulatory provision of 38 C.F.R. § 4.59 existing at the time; but for the legal error, the outcome would have been manifestly different so that separate, initial 10 percent ratings for the major joints of right knee disability, left knee disability, and right shoulder disability would have been granted. 4. The January 5, 1993 rating decision pertaining to the assignment of an initial noncompensable rating for the right finger disability was reasonably supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were either not considered or were misapplied. CONCLUSIONS OF LAW 1. The January 5, 1993 rating decision assigning an initial noncompensable rating for the service-connected right knee disability was clearly and unmistakably erroneous and is revised to a grant of 10 percent initial rating from November 19, 1992. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2015). 2. The January 5, 1993 rating decision assigning an initial noncompensable rating for the service-connected left knee disability was clearly and unmistakably erroneous and is revised to a grant of 10 percent initial rating from November 19, 1992. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2015). 3. The January 5, 1993 rating decision assigning an initial noncompensable rating for the service-connected right shoulder disability was clearly and unmistakably erroneous and is revised to a grant of 10 percent initial rating from November 19, 1992. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2015). 4. The January 5, 1993 rating decision assigning an initial noncompensable rating for the service-connected right finger disability was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 3.105 (2015). 5. The grant of separate, initial 10 percent ratings for the right knee disability, the left knee disability, and the right shoulder disability on the basis of CUE renders the Veteran legally ineligible for a 10 percent rating based on multiple noncompensable service-connected disabilities for any rating period. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 3.324 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Court has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist under the Veterans Claims Assistance Act of 2000 (VCAA) do not apply to allegations of CUE in prior final decisions, because a CUE motion is not a claim or an appeal, but is a collateral attack upon a previous final decision. Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc); Simmons v. Principi, 17 Vet. App. 104, 109 (2003). Moreover, the Veteran has the burden of establishing such error on the basis of the evidence then of record. See Livesay, 15 Vet. App. at 178-79. CUE Legal Criteria The law and regulations provide that previous determinations that are final and binding will be accepted as correct in the absence of CUE; however, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F. 3d 1354 (Fed. Cir. 2002). Such a motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the VA decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy that requirement. Motions which fail to comply with the regulatory requirements shall be dismissed, without prejudice to refiling. 38 C.F.R. § 20.1404(b); see Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000). Examples of situations which do not constitute CUE are: (1) a new medical diagnosis which "corrects" an earlier diagnosis considered in a decision; (2) VA failure to fulfill the duty to assist; (3) a disagreement as to how the facts were weighed or evaluated; and (4) the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in the interpretation of the pertinent statute or regulation. 38 C.F.R. § 20.1403(d)-(e) (pertaining to allegations of CUE in a prior Board decision). In determining whether a prior decision involves CUE, the U.S. Court of Appeals for Veterans Claims (CAVC) has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). See also Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (affirming that CUE must be outcome determinative). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Generally, the correct facts, as they were known at the time, were not before the RO, or the statutory and regulatory provisions extant at the time were incorrectly applied. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be Ipso Facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell, 3 Vet. App. at 313-14. A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith, 35 F.3d at 1527. As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). CUE Analysis As an initial matter, the Board finds the allegations of CUE made by the Veteran are adequate to meet the threshold pleading requirements; therefore, dismissal of the appealed issue is not warranted. See Simmons v. Principi, 17 Vet. App. 104 (2003). During the May 2015 Travel Board hearing, the Veteran explicitly raised the issue of whether CUE is present in a January 1993 rating decision. Because the Veteran adequately identified the January 1993 rating decision at issue and set forth a reasonable allegation of CUE in the assignment of initial noncompensable ratings for the joints identified, the specificity requirement has been met. In the January 1993 rating decision, the RO, in pertinent part, granted service connection and assigned initial noncompensable (0 percent) disability ratings for each of the service-connected right and left knee disabilities under Diagnostic Code 5299-5257, a right shoulder disability under Diagnostic Code 5299-5203, and a right finger disability under Diagnostic Code 5299-5227, and denied a compensable (10 percent) rating under 38 C.F.R. § 3.324 on the basis that the service-connected disabilities did not clearly interfere with normal employability. In assigning the separate noncompensable ratings for the right and left knee disabilities, the RO explained that there was no indication of instability or loss of motion or function for either knee. In assigning the noncompensable rating for the right shoulder disability, the RO noted a full range of right shoulder motion with no loss of function. In assigning the noncompensable rating for the right finger disability, the RO noted that the right 5th metacarpal fracture can be expected to heal completely without residual disability. The Veteran did not appeal the January 1993 rating decision and did not submit any evidence within one year of receiving notice of the January 1993 rating decision. Also, no official service records pertinent to the January 1993 decision have been obtained; therefore, the January 1993 rating decision became final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). In this case, the Veteran contends that the January 1993 rating decision is clearly erroneous in failing to grant separate minimum 10 percent disability ratings for joints that were painful and caused some limitation of motion of the joints affected. Specifically, he contends that the initial ratings for the service-connected right and left knee disabilities (major joints), right shoulder disability (major joint), and right finger disability (minor joint) should have been assigned compensable (10 percent) ratings by the January 1993 rating decision because there was already evidence in the record at that time that such disabilities manifested joint pain and limitations. Alternatively, the Veteran contends that the January 1993 rating decision was clearly erroneous in denying a 10 percent rating based on multiple, noncompensable, service-connected disabilities (under 38 C.F.R. § 3.324). The Veteran asserts that, at the time of the January 1993 rating decision, it was undebatable that he was medically discharged from service (his normal employment) based on at least one of the service-connected disabilities, and that the service-connected disabilities interfered with normal employability. See Board hearing transcript, pages 5-6. In a January 2010 correspondence from the representative, the Veteran indicated that entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities should be covered from 1993 to 2007. Rating Legal Criteria The pertinent law and regulatory criteria in effect at the time of the January 1993 rating decision, as now, provided that disability ratings were determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. Disabilities of the musculoskeletal system were rated under 38 C.F.R. § 4.71a. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings was rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved was noncompensable under the appropriate diagnostic codes, a rating of 10 percent was for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provided for a 0 percent rating when there was flexion limited to 60 degrees. A 10 percent rating was warranted for flexion limited to 45 degrees. A 20 percent rating was warranted for flexion limited to 30 degrees. A 30 percent rating was warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provided for assignment of a 0 percent rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal range of motion for the knee was from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5201, limitation of motion of an arm at the shoulder level warranted a 20 percent rating whether it was the major or minor extremity. When motion was limited to midway between the side and shoulder level, a 30 percent evaluation was warranted for the major extremity and 20 percent for the minor extremity. When motion was limited to 25 degrees from the side, a 40 percent evaluation was warranted for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.71a. Diagnostic Code 5230 provided a 0 percent rating for any limitation of motion of the little finger whether it was the major or minor extremity. 38 C.F.R. § 4.71a. Evidence of record at the time of the January 1993 rating decision included the service treatment records (STRs), which show that, starting in 1988 and continuing for the remainder of service, the Veteran complained of bilateral knee pain. The May 1992 service Medical Board examination reflects findings of minimal to moderate medial patellar tenderness with a diagnosis of bilateral patellofemoral syndrome. Beginning in 1989 and for the remainder of service, the Veteran complained of right shoulder pain with numbness and tingling. At the May 1992 service Medical Board examination, the right shoulder demonstrated full range of motion with some tentativeness on full overhead motion, and a diagnosis of right shoulder impingement syndrome was noted. X-rays of the knees and right shoulder during service were normal. Service treatment records show that the Veteran was given a permanent profile for the bilateral knee pain and was determined to be unfit for further military duty because of bilateral patellofemoral pain syndrome. Service treatment records also show that the Veteran sustained a right metacarpal fracture of the fifth finger in 1992 shortly before service separation and reported residual pain. Knees and Shoulder Ratings After review of the record as it existed at the time of the 1993 rating decision, the Board finds that there was CUE in the January 1993 rating decision regarding the assignment of noncompensable (0 percent) ratings for the right and left knee disabilities and the right shoulder disability. The evidence then of record showed that the Veteran had painful bilateral knee (major joints) and right shoulder (major joint) limitation of motion, although the limitation of motion was to a noncompensable degree; however, Diagnostic Code 5003 then provided a 10 percent rating when there was painful noncompensable limitation of motion of a major joint. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (the application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims). Because the evidence at the time of the January 1993 rating decision demonstrated painful knee and right shoulder joints with limitation of motion to a noncompensable degree, and the regulatory criteria provided a 10 percent rating under DC 5003 for musculoskeletal disabilities with painful joint motion limited to a noncompensable degree, the Board finds that, even though the correct facts were before the RO at the time of the January 1993 rating decision, the regulatory provisions existing at the time of the January 1993 rating decision were not correctly applied. The Board finds that the January 1993 rating decision error was "undebatable" and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made, that is, would have resulted in a 10 percent initial disability rating under DC 5003 for the major joints of left and right knee and right shoulder disabilities for the initial rating period from November 19, 1992 (the first day after service separation). For these reasons, the January 1993 rating decision assigning noncompensable ratings for the right and left knee disabilities, as well as the right shoulder disability, was a product of CUE, which requires revision of the January 1993 rating decision to a grant of 10 percent initial ratings for right knee disability, left knee disability, and right shoulder disability, for the initial rating period beginning November 19, 1992. 38 C.F.R. § 3.105; Damrel v. Brown, 6 Vet. App. at 242; Russell, 3 Vet. App. at 310. Right Finger Disability Rating The Board finds that there was no CUE in the January 1993 rating decision regarding the assignment of a noncompensable rating for the right finger disability, which involves only a minor joint. The January 1993 rating decision relied on accurate facts, including the evidence of in-service fracture and complaints of pain. While the evidence then of record at the time of the January 1993 rating decision showed a fracture of the right hand fifth metacarpal with residual pain and noncompensable limitation of motion, the right little finger is not a major joint; therefore, manifestations of the right little finger disability did not warrant a 10 percent rating under Diagnostic Code 5003. The statutory and regulatory provisions pertaining to the ratings for limitation of motion of the right little finger (a minor joint) were correctly applied by the adjudicators at the time of the January 1993 rating decision. For these reasons, the Board finds that the January 1993 rating decision to deny a compensable initial disability rating for the right finger disability was the product of reasonable judgment, and was not clearly and unmistakably erroneous. 38 C.F.R. § 3.105; Damrel at 242; Russell at 310. Because separate, initial 10 percent ratings are being granted for the right knee disability, left knee disability, and the right shoulder disability effective from November 19, 1992 based on CUE in the January 1993 rating decision, there remain no multiple noncompensable service-connected disabilities that meet the legal threshold requirement for consideration for a 10 percent rating under 38 C.F.R. § 3.324. Consequently, there is no legal basis for CUE in denial of a compensable rating under 38 C.F.R. § 3.324 based on multiple noncompensable disabilities. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.105, 3.324. ORDER As the January 1993 rating decision contained CUE in assigning an initial noncompensable rating for the right knee disability, the January 5, 1993 decision is revised to a grant of a 10 percent rating for the right knee disability, effective November 19, 1992. As the January 1993 rating decision contained CUE in assigning an initial noncompensable rating for the left knee disability, the January 5, 1993 decision is revised to a grant of a 10 percent rating for the left knee disability, effective November 19, 1992. As the January 1993 rating decision contained CUE in assigning an initial noncompensable rating for the right shoulder disability, the January 5, 1993 decision is revised to a grant of a 10 percent rating for the right shoulder disability, effective November 19, 1992. As the January 1993 rating decision did not contain CUE in assigning a noncompensable rating for the right finger disability, the appeal for revision based on CUE is denied. The issue of whether CUE is present in a January 1993 rating decision that denied entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities, having been rendered moot by the grant of compensable disability ratings, is dismissed with prejudice. REMAND Earlier Effective Date for Service Connection for the Back Disability On the December 2015 VA Form 9, the Veteran requested a Board hearing to be held at the local RO (i.e., a Travel Board hearing) in connection with the appeal for an effective date earlier than May 30, 2007 for service connection for a back disability; however, a Travel Board hearing has not yet been scheduled. Pursuant to 38 C.F.R. § 20.700 (2015), a Board hearing for a claim on appeal will be granted to an appellant who requests one and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2014) (pertaining specifically to hearings before the Board). Because the Veteran has expressed a desire for a Travel Board hearing, and Travel Board hearings are scheduled by the RO, the Board is remanding the case for that purpose. See 38 C.F.R. §§ 20.700, 20.704(a) (2015). Remand for SOC on Issues of Service Connection for CTS, Neuropathy, and Lower Extremity Radiculopathy In April 2015, the RO denied service connection for right carpal tunnel syndrome, left ulnar entrapment neuropathy at the elbow level, right lower extremity radiculopathy, and left lower extremity radiculopathy. The Veteran was notified of the decision on April 6, 2015. On April 4, 2016, the Veteran filed a timely Notice of Disagreement (NOD), on VA Form 21-0958, to the April 2015 rating decision denying these service connection claims. As the April 2016 NOD regarding the above-listed issues was received by the RO within the one year appeal period, the NOD is timely. 38 U.S.C.A. § 7105. Because a timely NOD has been submitted for the issues, a remand is required in order to provide the Veteran with a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that Board should remand for issuance of SOC when NOD has been timely filed); 38 U.S.C.A. § 7105(d)(1). Thereafter, the Veteran must submit a timely substantive appeal in order for these issues to be perfected for appeal to the Board. 38 U.S.C.A. § 7105. Accordingly, the issue of (1) an effective date earlier than May 30, 2007 for service connection for the back disability, (2) service connection for carpal tunnel syndrome of the right hand (claimed as neurological condition), (3) service connection for left ulnar entrapment neuropathy at the elbow level (claimed as a neurological condition), (4) service connection for radiculopathy of the right lower extremity, and (5) service connection for radiculopathy of the left lower extremity are REMANDED for the following actions: 1. Schedule a Travel Board hearing (or a videoconference Board hearing in lieu of an in-person hearing if the Veteran so chooses) as the docket permits for the issue of an effective date earlier than May 30, 2008 for service connection for the back disability. The AOJ should notify the Veteran of the date, time, and place of the hearing. A copy of the notice to the Veteran of the scheduling of the hearing should be placed in the record. 2. Send the Veteran a SOC with respect to the issues of entitlement to (1) service connection for carpal tunnel syndrome of the right hand, (2) service connection for left ulnar entrapment neuropathy at the elbow level, (3) service connection for radiculopathy of the right lower extremity, and (4) service connection for radiculopathy of the left lower extremity. If, and only if, a timely substantive appeal is filed in response, these issues should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs