Citation Nr: 1750119 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 09-02 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to recognition as the Veteran's surviving spouse for purposes of establishing eligibility for payment of Department of Veterans Affairs (VA) Dependency and Indemnity Compensation (DIC) and death pension benefits. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to VA death pension benefits. 4. Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The appellant seeks to establish that she is the surviving spouse of a Veteran who had active service from September 1968 to August 1971 and from August 1973 to August 1977. The Veteran died in May 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, found that new and material evidence had not been submitted to reopen the claim for service connection for a low back disability; and from a January 2011 decision letter by the Oakland RO, which denied the appellant's claims for death pension, month of death payment, and accrued and DIC benefits, based on a finding that the appellant had not established her common law marriage to the Veteran. In a December 2011 VA administrative decision, it was determined that the appellant was a valid substitute for the purposes of prosecuting the Veteran's claim claim for a low back disability to completion. In April 2013, the Board remanded the claim for service connection for a low back disability in order to afford the appellant a hearing. In that regard, prior to his death, in a VA Form 9 dated in January 2009, the Veteran had requested a Board hearing via live videoconference, but he had not yet been afforded the hearing. After his death, the appellant was contacted, as she was the approved substitute in this appeal, and she responded in April 2013 that she wanted to continue the videoconference hearing request. Thereafter, however, in a phone call in October 2016 and in a document received in March 2017, the appellant indicated she wanted to withdraw the hearing request. The Board notes that by November 1989 rating decision, the RO initially denied service connection for a low back condition. The Veteran was notified of the November 1989 RO rating decision, but did not appeal, and that decision was the last final disallowance of the claim. At the time of the final November 1989 RO rating decision, there were some service treatment records (STRs) associated with the claims file, which were from the Veteran's first period of active duty. In May 2006, the Veteran filed a claim to reopen a claim for entitlement to service connection for a low back condition. As noted above, by July 2007 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim. Thereafter, however, in July 2014, additional STRs were added to the claims folder, which were not of record at the time of the November 1989 rating decision. Significantly, these STRs revealed additional in-service treatment and notations relevant to the low back condition on appeal. Governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156(c). As these additional STRs are "relevant" to the issue on appeal, the claim for service connection for a low back condition must be reconsidered, on a de novo basis, without the need to address whether there is new and material evidence to reopen the low back disorder claim. Id. Also in April 2013, the Board remanded this matter in order to issue a statement of the case (SOC), pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), for the issues of entitlement to death pension benefits and entitlement to service connection for the cause of the Veteran's death. In August 2016, the RO issued an SOC, and the appellant perfected the appeal by filing a substantive appeal (VA Form 9) in October 2016; thus, there has been substantial compliance with the April 2013 remand. Stegall v. West, 11 Vet App 268 (1998). For reasons set forth below, the issues of service connection for a low back disability, service connection for the cause of the Veteran's death, and entitlement to VA death pension benefits are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran and appellant were never married, but continuously lived together since approximately 1997 and resided together for more than one year prior to the Veteran's death. 2. The appellant lacked knowledge that common law marriages are not recognized in the state of California. 3. There is no information of record showing that a claim has been filed by a legal surviving spouse who has been found to be entitled to gratuitous death benefits. CONCLUSION OF LAW The appellant is entitled to recognition as the surviving spouse of the Veteran for purposes of establishing eligibility for payment of DIC and death pension benefits. 38 U.S.C.A. § 101(3), 103, 5107(b) (West 2014); 38 C.F.R. §§ 3.50, 3.52, 3.53, 3.54, 3.102, 3.205 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. Because the Board is granting the claim of entitlement to recognition as a surviving spouse of the deceased Veteran for the purpose of entitlement to DIC and death pension benefits, any procedural deficiency is not prejudicial to the appellant. II. Factual background The record reflects that the Veteran was married to H.C. from February 1969 through May 1999, during which time he received additional compensation benefits for H.C. as his dependent spouse. Of record is a divorce decree indicating that the appellant divorced her first husband in September 1983. In April 2001, the Veteran submitted a Declaration of Status of Dependents (VA Form 21-686c) in which he reported his marital status as divorced, noting he had divorced J.B.J. in May 1999. Of record is a divorce decree confirming that the Veteran divorced his first wife in May 1999. A certificate of death issued in May 2010 showed that the Veteran died that same month, and the cause of death was noted to be pending, and an autopsy was to be performed. An amendment to the certificate of death, issued in December 2010 by the Deputy Coroner, showed that the Veteran's immediate cause of death was sudden cardiac arrest, due to acute methamphetamine intoxication, and other significant conditions contributing to death, but not resulting in the underlying cause, included hypertensive and atherosclerotic cardiovascular disease. Received from the appellant, L.G., in June 2010 was a statement in which she indicated she was the common law spouse of the Veteran and had been his spouse for 13 years. The appellant noted that H.C. was the Veteran's ex-spouse. She enclosed a pension allotment (made out to H.C.) which the appellant had recently received which had the correct address, but not the correct name, and indicated she was taking steps to correct this error. The appellant submitted an Application for Dependency and Indemnity (DIC) compensation, Death Pension, and Accrued Benefits (VA Form 21-534), dated in June 2010, noting she was the surviving spouse of the Veteran, and that she and the Veteran had a common law marriage starting in 1997 in Sacramento, and that she lived continuously with the Veteran from the date of marriage to the date of his death. The appellant also indicated she and the Veteran had been in the process of relocating, and that he had been in Sacramento visiting his family at the time of his death, but that they had been living with her daughter. Received in October 2010 was a Supporting Statement Regarding Marriage (VA Form 21-4171) from X.A., the Veteran's "stepson" and the appellant's son. X.A. reported he lived with the Veteran, his mother (the appellant), and his sister from 2000 to 2010; that the Veteran and the appellant were generally known as husband and wife; that neither the Veteran nor the appellant ever denied the marriage; that he considered the Veteran and the appellant to be husband and wife, noting they always referred to each other as husband and wife; that the Veteran and the appellant lived together from 1997 to 2007 in Sacramento, and from 2007 through 2010 in Fresno; and that the Veteran and appellant lived together since in 1997 and maintained several residences together during the 13 years they were together. Received in October 2010 (and in March 2011) was a VA Form 21-4171 from I.B., the Veteran's "stepdaughter" and the appellant's daughter. I.B. reported she lived with the Veteran and her mother (the appellant); that the Veteran and the appellant were generally known as husband and wife; that neither the Veteran nor the appellant ever denied the marriage; that she considered the Veteran and the appellant to be husband and wife, noting that it was "common law"; that they lived as husband and wife for 13 years; that the Veteran and the appellant referred to each other as husband and wife frequently; that they maintained a home; that they lived together from 1997 to 2007 in Sacramento, and from 2007 through 2010 in Fresno; and that they began a relationship in 1997 and continued to live together as spouses until the Veteran's death. In a statement dated in October 2010, the appellant, L.G. indicated that she was the surviving spouse of the Veteran. She stated that regarding their living arrangements, there was a period of time of about 8 months where they were homeless due to a fire at their residence. She stated that they lived in motels, and with friends and family - wherever their finances would allow. She indicated that their residence was in the city of Sacramento. Received from the appellant in October 2010 was a Statement of Marital Relationship (VA Form 21-4170), in which she indicated that she began living with the Veteran, as husband and wife, in August 1997 in Sacramento. She also indicated that when they began living together they agreed their relationship would be boyfriend/girlfriend, but that they had lived together continuously since August 1997 and were planning to legally marry. She reported no periods of separation, and provided several addresses from August 1997 through 2010 of places that she had lived with the Veteran as husband and wife. The appellant also indicated that she had been married before and was divorced in 1985, and that the Veteran had been married before and was divorced in 1998. In a decision letter dated in January 2011, the RO notified the appellant that her claims for death pension, month of death, and DIC benefits had been denied because she had not provided certain information. The RO indicated that they wrote and asked the appellant to send to the RO: VA Form 21-4170 (Statement of Marital Relationship); VA Form 21-4171 (Supporting Statement Regarding Marriage); VA Form 21-686c (Declaration of Status of Dependents"; and information about the reported other income listed in a VA Form 21-534. The RO noted the appellant had reported two different dates for her divorce and that because of this discrepancy she would need to provide a copy of the public record ending her marriage to J.B. The RO also noted that the state of California did not recognize common law marriages, and, therefore, statements were needed from the appellant to establish her common law marriage, and that she should provide these statements on VA Form 21-4170 regarding her marriage to the Veteran. Received from the Veteran in March 2011 was a VA Form 21-4138, statement from the appellant, which was continued from the VA Form 21-4170 she submitted previously. Therein the appellant provided more details regarding where she and the Veteran lived from 2000 through 2007. Received in March 2011 was a VA Form 21-4171 from Y.B., who reported she was the appellant's niece, and had known the Veteran for 13 years. She reported she saw the Veteran and the appellant on an almost daily basis, and indicated they were generally known as husband and wife; that neither the Veteran nor the appellant ever denied the marriage; that she considered them to be husband and wife. Y.B. indicated she had heard, in 2007 in Sacramento, the Veteran and appellant refer to each other as husband and wife. Y.B. noted that the Veteran and the appellant maintained a home and lived together as husband and wife and that they lived continuously together from 1997. Received from the appellant in March 2011 was an additional VA Form 21-4170, in which she indicated she began living with the Veteran, as husband and wife, in September 1997 in Sacramento, and that when they began living together they agreed they would be companions. She indicated they had not lived continuously together from 1997 to the Veteran's death, noting that she was incarcerated from June 2004 through May 2005 and from June 2009 through October 2009, and that the Veteran maintained their household during that time. She listed addresses from 1997 through 2010 where they had lived as husband and wife. In a memorandum dated in December 2011, the VA Pension Management Center (PMC) notified the RO that substitution was valid and that the RO had jurisdiction, and requested that the RO reactivate the Veteran's appeal for substitution and make a decision on both the appeal and the claim for accrued benefits. The VA PMC noted that the appellant had submitted a VA Form 21-534, that the Veteran had an appeal pending at the RO at the time of his death, and that the issue on appeal (intervertebral disc syndrome) was not inextricably intertwined with the Veteran's cause of death. The VA PMC noted that the appeal and the claim for accrued benefits were within the RO's jurisdiction, and that the PMC would complete the DIC and death pension decisions. In a VA Form 21-4138 dated in June 2016, the appellant indicated that she met the Veteran in 1997, at which time he was in the process of divorcing his first wife. The appellant indicated that she and the Veteran had "their differences, as couples sometimes do", but indicated the occasions they spent apart were usually his visits to his children, for 1 to 2 weeks usually. She indicated they may have spent one or two months apart while having a difference of opinion, but they always made up. She also indicated they were planning a trip to Las Vegas to wed the week of the Veteran's passing. In an August 2016 administrative decision, the RO determined that a common law marriage between the Veteran and the appellant was not recognized and not valid. The RO indicated that to assist in establishing a common law marriage as valid for the appellant, who was not living in a state recognizing common law marriages, a development letter was sent to her in April 2016, requesting a statement as to whether she was aware that common law marriages were not recognized in California and the reasons for this understanding. The RO noted that the appellant replied in July 2016, but did not provide a statement regarding whether or not she was aware that that common law marriages were not recognized in California. The RO also noted that because they did not receive this information, they could not ascertain whether the appellant was without knowledge of the legal impediment that common law marriages are not recognized in California. In a VA Form 9 submitted in October 2016, the appellant indicated that she was not aware that VA expected an actual written response regarding her knowledge of common law marriages in the state of California. The appellant indicated that in June 2010, she made a call to VA to inform them that she received a check from VA that had her husband's ex-wife's name on it and that at that time she inquired if the fact that her marriage was only common law disqualify her from survivor benefits. The appellant stated that she was informed at that time that she definitely qualified and that forms would be sent to her. III. Analysis The law provides that VA death benefits may be paid to a surviving spouse who was married to a veteran: (1) one year or more prior to a veteran's death, or (2) for any period of time if a child was born of the marriage, or (3) was born to them before the marriage. 38 U.S.C.A. §§1102, 1304, 1541; 38 C.F.R. §3.54. The term "surviving spouse" means a person who was the spouse of the veteran at the time of a veteran's death, and who lived with the veteran continuously from the date of marriage to the date of a veteran's death (except where there was a separation which was due to the misconduct of, or procured by, a veteran without the fault of the spouse in the case of temporary separations) and who has not remarried or (in cases not involving remarriage) has not since the death of a veteran lived with another person and held himself or herself out openly to the public to be the spouse of such other person. See 38 U.S.C.A. §101(3); 38 C.F.R. § 3.50. For purposes of VA benefits, a marriage means a marriage valid under law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. §103(c); 38 C.F.R. §3.1(j). In this case, the parties (the Veteran and the appellant) resided in the state of California. Where an attempted marriage is invalid by reason of legal impediment, VA law and regulations allow for certain attempted marriages to be "deemed valid" if certain legal requirements are met. Such an attempted marriage will be "deemed valid" if: (a) the attempted marriage occurred one year or more before the Veteran died; and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabited with the Veteran continuously from the date of the attempted marriage until his death; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. 38 U.S.C.A. §103(a); 38 C.F.R. §3.52. Where a surviving spouse has submitted proper proof of marriage and also meets the requirements of 38 C.F.R. § 3.52, the claimant's signed statement that she had no knowledge of an impediment to the marriage to the veteran will be accepted, in the absence of information to the contrary, as proof of that fact. 38 C.F.R. § 3.205 (c). In cases in which there is an impediment to entering into a common-law marriage, if the appellant was unaware of the impediment, then an otherwise invalid common-law marriage could be deemed valid. See Colon v. Brown, 9 Vet. App. 104 (1996). In reviewing this claim, the Board initially notes that by administrative decision in December 2011, the appellant was substituted as the claimant for purposes of prosecuting the Veteran's service connection claim to completion. Nonetheless, the Board will address this threshold issue herein. In that regard, the Board acknowledges that common law marriages may not be formed in California, and that VA has determined that the requirement of a marriage ceremony by a jurisdiction that does not recognize common-law marriage constitutes a "legal impediment" to such a marriage for purposes of 38 U.S.C.A. § 103 (a); see also Colon, 9 Vet. App. 104. The Appellant has essentially contended that she was the common law spouse of the Veteran, that she had been his spouse for 13 years, and that they had lived together as a husband and wife since at least 1997. She acknowledged there were periods that they were apart, including when they had their differences or were visiting family or friends, but that these were for a month or two and a week or two, respectively, and also when she was incarcerated on two occasions, but she contended that the Veteran maintained their household during that time. The record reflects the appellant believed they had a common law marriage. The Appellant has also submitted statements from her son, daughter, and niece, attesting to the fact that she and the Veteran conducted themselves as husband and wife. There is no statement of record from any person that the appellant and the Veteran did not hold themselves out as husband and wife. The question becomes whether the Appellant was aware of the impediment that common law marriages may not be formed in California. In that regard, the evidence strongly suggests that she was not. The Appellant used the term common-law marriage to describe their relationship from the time she first submitted a letter regarding this claim, in June 2010. While the legal requirements vary by jurisdiction, typically, all of the following elements must be present to establish a common law marriage: (1) an explicit or inferred agreement between the parties to be married; (2) cohabitation for some period of time; (3) holding each other out to the public as husband and wife. See M21-1MR III.iii.5.C.12.d. In that regard, the preponderance of the evidence of record shows that the appellant and the Veteran lived together for at least 12-13 years prior to the Veteran's death and the evidence overwhelmingly shows that they held each other out to the public as husband and wife from at least 1997 to the time of the Veteran's death in 2010. Moreover, through her various submissions, the appellant has indicated she did not realize common law marriage was not recognized in California. Furthermore, the record contains no evidence that the Appellant had knowledge of an impediment to the common law marriage to the Veteran. See Colon, 9 Vet. App. 104. The remaining question is whether a claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. No other woman has come forward purporting to be the Veteran's surviving spouse, and there is no evidence showing that a claim for VA death benefits has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits. In sum, the Board finds that the attempted common law marriage meets the criteria for a valid marriage between the Veteran and appellant and that she may be considered the Veteran's surviving spouse under VA regulations. At the very least, there is an approximate balance of evidence both for and against the claim that the appellant is the Veteran's surviving spouse for the purposes of claiming VA death benefits. Under such circumstances, all reasonable doubt is resolved in favor of the appellant, and the claim will be decided on that basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. According, the appeal is granted. Because this decision establishes a date of marriage more than one year prior to the Veteran's death, recognition of the appellant as the Veteran's surviving spouse for purposes of eligibility for payment of VA DIC and death pension benefits is warranted. This decision does not, however, reach the merits of the claim of entitlement to actual payment of such benefits. In that regard, the AOJ (agency of original jurisdiction) has yet to consider the appellant's claim for death pension benefits on the merits, and such must first be addressed by the AOJ prior to appellate consideration. While the RO has already considered the claim for service connection for the cause of the Veteran's death on the merits (as noted in the August 2016 SOC), this issue must also be remanded for reasons set forth below. ORDER The appellant's claim for recognition as the Veteran's surviving spouse, for the purpose of establishing eligibility for payment of DIC and death pension benefits, is granted. REMAND DIC & Death Pension Benefits The Board has found the Appellant is eligible for recognition as the surviving spouse of the Veteran for purposes of receiving death pension benefits. This matter was previously denied by the AOJ in a January 2011 decision and an August 2016 administrative decision, based on the ineligibility of the appellant as the surviving spouse of the Veteran. Thus, a remand is warranted for the record to be developed for the matters of entitlement to death pension and for that matter to be adjudicated on the merits by the AOJ. While the RO has already considered the claim for service connection for the cause of the Veteran's death on the merits (as noted in the August 2016 SOC), this issue is inextricably intertwined with the claim for service connection for a low back condition which is being remanded herein for further development. The Board must therefore defer adjudication of the cause of death claim pending the resolution of the claim for service connection for a low back condition. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Low Back Disability Prior to his death, the Veteran maintained that his back problems started in service, and that he wore a back brace most of the time while he was in service. Service treatment records (STRs) show that in November 1970, the Veteran reported having a backache since the night before when he was lifting the head off of an engine. Physical examination showed some paralumbar tenderness, and the impression was muscle strain. On a separation examination in July 1971, clinical evaluation of the spine was normal. In November 1976, the Veteran reported he injured his lumbar spine the day before playing football. It was noted that he had a history of cervical spine injury incurred during basic training 7 years earlier, for which he was under continuous treatment at home. It was noted that he had no radiation of low back pain. In May 1977, he was involved in a motor vehicle accident, where the car he was driving was hit from the right side and totaled, and after which he complained of low back and cervical pain. An x-ray taken at that time revealed a normal lumbar spine. VA treatment records show that early in September 1983, the Veteran complained of cervical spine, low back, and head pain. Examination revealed some restriction of motion of the back and neck, and at his request he was given Tylenol with Codeine to be used sparingly. Later in September 1983, he was again seen for evaluation of back pain, which was noted to be severe, and he felt tight in the neck and back. In October 1983, it was noted that he had an accident in 1977 with injury to the low back. The impression was that he continued to have symptoms in the cervical and lumbar spine, with no evidence of any improvement. In April 1985, his low back pain persisted, and the impression was chronic back strain. Treatment records from Kaiser Permanente Medical Center show that in September 1983, the Veteran was admitted for treatment for an unrelated condition, and his chronic low back and cervical sprain were noted to be inactive at that time. After injuring his back at work while lifting a heavy box, in April 1985, he started going to physical therapy. Later in April 1985, he was noted to be better but still had some lower back pain. The assessment was muscle strain. In May 1985, he was seen for evaluation of his back, and the assessment was chronic low back strain. The next day he was seen again, and objective examination showed his back was freely moveable with no pain. The assessment was back strain, much better. In August 1985, an x-ray of the lumbar spine showed vertebral bodies well-maintained in height, position, and alignment, and interspaces were well-maintained; and the lumbosacral interspace was slightly narrower than the reminder but this was noted to be not unusual. In September 1985, he reported increased low back pain and neck pain. He had returned to work, but had to stop working because he developed back pain again. His medical history included history low back strain following a motor vehicle accident in 1977. In October 1985, he stated his back pain had improved almost 100 percent and he was ready to go back to his full time job. The diagnosis was myofascial lumbar strain. In February 1986, it was noted that he returned to work in October, but in December experienced back pain after pulling a heavy object at work. The diagnosis was recurrent back strain. VA treatment records showed that in September 1989, the Veteran reported he was currently on "SSD" for neck, back, foot, and hand symptoms, and for a mental condition. He reported cervical and back pain. The impressions included chronic back strain, and he requested physical therapy and Tylenol with Codeine. In July 2006, he was seen for chronic pain follow up, and he reported that during basic training he strained his neck and back, and that in 1977 he sustained lumbar whiplash in a car accident. The assessment was chronic low back pain. In August 2006, he was seen for a report of chronic back pain for 30 years. An MRI showed degenerative disc disease at L4-5, L5-S1 with posterior disc bulges; spinal canal congenitally somewhat tight in the lower lumbar region, exacerbated by mild facet hypertrophy of L4-5; and bilateral foraminal narrowing, mild at L5-S1. The record reflects that the Veteran underwent a VA examination in February 1989, at which time he reported having consistent cervical spine pain and back pain. On examination, cervical sprain/syndrome, not improving, was noted, but no low back pathology or condition was noted. As noted above, however, subsequent treatment records do show that the Veteran had a current low back disability, and that he reported having back symptoms since service. Under these circumstances, a medical opinion by an appropriate provider is needed to resolve the claim for service connection a low back condition. 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159 (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Additionally, it appears that the Veteran may have been receiving disability benefits from the Social Security Administration (SSA) for a period of time, possibly in part related to his back condition. When VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting SSA disability benefits, and the supporting medical documents on which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996). Therefore, on remand, an attempt should be made to acquire any such documents. Accordingly, the case is REMANDED for the following actions: 1. Contact the SSA and request that they provide any records pertinent to the Veteran's claim for disability benefits, including medical records relied upon concerning that claim. All efforts to obtain these records should be fully documented, and SSA should provide a negative response if these records are not available. 2. Following completion of the above, obtain a medical opinion from an appropriate examiner to determine the nature and probable etiology of the Veteran's low back condition. The paperless claims folder must be made available to the examiner. The examiner is requested to express an opinion, to the extent possible, as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran had a low back disability that had an onset in service or was otherwise related to his military service. The examiner should specifically address the Veteran's assertions of continuing symptoms as well as his STRs. An explanation for all opinions expressed must be provided. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must explain why the opinion sought cannot be offered without resort to speculation. 3. After undertaking any additional development deemed appropriate, readjudicate the claim for service connection for a low back condition, as well as the pending claims of entitlement to death pension and DIC benefits in light of any additional evidence added to the record. If any benefit sought on appeal is not granted, the appellant should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs