Citation Nr: 1752524 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-00 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. 3. Entitlement to DIC under 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Disabled American Veterans WINTESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from December 1959 to February 1962. The Veteran died in December 2009. The appellant claims as the surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2010 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. See Virtual VA (LCM). In November 2016, the appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Phoenix, Arizona. A transcript of the proceeding has been associated with the claims file. At the Board hearing, the Veteran's representative clarified that the DIC claim on appeal herein included a claim for DIC under 38 C.F.R. § 1318 (based on receipt of total disability compensation for 10 years). Therefore, the Board has more properly recharacterized the DIC claim on appeal to include entitlement to DIC under 38 U.S.C.A. § 1318. The issue of entitlement to DIC under 38 U.S.C.A. § 1151 addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran died in December 2009. The death certificate reflects that the cause of death was metastatic cancer. 2. At the time of the Veteran's death, he was service-connected for a lumbosacral strain with degenerative disc disease, a chronic variously diagnosed disorder or the right knee, status post arthroscopy, and residuals, left knee injury, postoperative. 3. The cause of the Veteran's death is not attributable to his active service; it was not caused or made permanently worse by service-connected disease or injury. Carcinoma was not manifest during service or within one year of separation. 4. The Veteran was not evaluated totally disabled for a service-connected disability for 10 continuous years immediately preceding his death; was not totally disabled from the date of his discharge for a period of not less than 5 years immediately preceding his death; and was not a former prisoner of war (POW). 5. The Veteran was not "entitled to receive" total service-connected disability compensation by way of any of the possible exceptions listed under 38 C.F.R § 3.22(b). CONCLUSIONS OF LAW 1. A disability incurred in or aggravated by service did not cause or contribute substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1131, 1310, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2016). 2. The criteria are not met for DIC pursuant to 38 U.S.C.A. § 1318. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. §§ 3.22, 20.1106 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the appellant's claims for service connection for the cause of the Veteran's death, and for DIC under 38 U.S.C.A. § 1318, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. The Board finds that February 2010 and March 2010 notice letters (see LCM-VVA) fully satisfied VA's duty to notify the appellant. See 38 U.S.C.A. § 5103(a). While the Board acknowledges that the notice letters did not explain the elements of a claim for DIC under 1318, the Board finds such to be harmless, as it was clearly shown at the time of the Board hearing that the appellant, by way of her representative, was aware of that entitlement to DIC under 38 C.F.R. § 1318 in this case would have required receipt of total disability compensation for 10 years at the time of the Veteran's death. Moreover, the Board finds that further notice is not required and would be futile because, as explained in detail below, no reasonable possibility exists that such assistance would aid in substantiating the claim. The Board also finds that the February 2010 and March 2010 notice letters substantially satisfied the notice requirements of Hupp v. Nicholson, 21 Vet. App. 342 (2007). The notice letters explained the disabilities for which the Veteran was service connected at the time of his death, the evidence and information required to substantiate a DIC claim based on a previously service-connected condition, and the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. The Board also finds that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records are all in the claims file. The appellant has not identified any outstanding records for VA to obtain. VA's duty to assist generally includes the duty to provide a VA examination or obtain a VA medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4) (2016). The Board acknowledges that a VA medical opinion was not obtained relating to the claim for service connection for the cause of the Veteran's death. The Board finds, however, that the duty to obtain a VA medical opinion has not been triggered for these claims, as there is no probative evidence tending to indicate any link between the cause of the Veteran's death and his active service or any service-connected disability. Regarding the claim for DIC under 38 U.S.C.A. § 1318, no reasonable possibility exists for substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2). In November 2016, the appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Phoenix, Arizona. A transcript of the proceeding has been associated with the claims file. At the Board hearing, the undersigned VLJ clarified the issues on appeal, explained the concepts of service connection and DIC, elicited testimony on the elements necessary to substantiate the appeal, identified potential evidentiary defects, and the submission of additional evidence was addressed. See 38 C.F.R. § 3.103(c)(2). The appellant has not identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Therefore, for the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Analysis A. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). To establish service connection, the evidence generally 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish entitlement to service connection for the cause of a veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. § 3.312 (2016). The service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2016). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. 38 C.F.R. § 3.312(c) (1) (2016). The Veteran served on active duty from December 1959 to February 1962. In December 2009, the Veteran died. His death certificate shows that the immediate cause of death was metastatic cancer. See LCM-Virtual VA, received June 2010. At the time of his death, the Veteran was service connected for a lumbosacral strain with degenerative disc disease, a chronic variously diagnosed disorder or the right knee, status post arthroscopy, and residuals, left knee injury, postoperative. By way of background, the Veteran's service treatment records do not show any treatment for any respiratory problems, except that an October 1961 and November 1961 records show he had a cough in connection with a common cold. See STRs at p.17 of 40. A November 1961 chest x-ray showed several calcifications on both sides of his chest but was noted as otherwise normal. See STRs at p.24 of 40. A November 1961 treatment record noted he had a positive purified protein derivative (PPD) test, and noted that his chest films were clear except for some old calcifications, and probable bronchitis was diagnosed and the Veteran was prescribed antibiotics. See STRs at p.18 and 30 of 40. His January 1962 separation examination report shows examination of his lungs was normal, and that a January 1962 chest x-ray was normal. See p.19 of 40. The Board acknowledges that on his January 1962 separation examination report, the Veteran checked the box indicating he had, presently or at any time, a chronic cough. The examining physician noted on the form, however, that the Veteran had a cough in November 1961 that "cleared up." Post-service, VA treatment records show the Veteran was followed for lung nodules since July 2001. See VA treatment records, received February 2004 at p.47 of 67. A September 2003 record shows probable lung cancer was diagnosed. See VA treatment records, received February 2004 at p.40 of 67. The records show he smoked 12 cigarettes per day. See id. at p.36. A January 2004 lung biopsy revealed adenocarcinoma of the right lung. See id. at p.15 of 67. A February 2004 VA operative report shows the Veteran underwent a right lower lobe and right middle lobe lobectomy for his right lung cancer. See CAPRI, received November 2016 (duplicate). A February 2009 VA treatment record shows he was diagnosed with a metastatic right neck mass. See VA treatment records, received February 2010 at p.4 of 27 (VBMS). He subsequently underwent radiation treatment on the metastatic neck mass at Chandler Regional Medical Center that was completed in April 2009. See CAPRI (LCM-Virtual VA), received February 2010 at p.18 of 44; see also CAPRI (VBMS), received February 2010 at p.5 of 27. August 2009 records from St. Joseph's Hospital show the Veteran underwent a T1 corpectomy and tumor resection for metastatic cancer to the T1 body, noted as most likely due to the Veteran's lung cancer or squamous cell carcinoma of the neck. See PTRs, received March 2010 at p.1 and 5 of 8, and PTRs, received February 2010 p.26 of 33. A December 2009 VA treatment record shows the Veteran presented to the emergency room complaining of right arm pain, he had an MRI and was seen by neurosurgery and was told he had a neck tumor compressing a nerve, and it was noted that he was scheduled for surgical treatment. See VA treatment records (VBMS), received February 2010 at p.24 of 27; PTRs (Barrow NeuroSpine MRI), received March 2010 at p.12 of 32. A December 14, 2009 operative report from St. Joseph's Hospital shows the Veteran underwent a resection of the malignant tumor, and C7, T1, and T2 laminectomies with decompression of the spinal cord and nerve roots. See PTRs, received March 2010 at p.22 of 32. An operative report noted that a small left pneumothorax was encountered following the central line placement, and that a small chest tube was placed and the spinal procedure was continued. See id.; see also id. at p.16 of 32 (Operative Report - pneumothorax). A December 2009 St. Joseph's Hospital discharge summary shows that on December 19, 2009, the Veteran developed severe respiratory distress due to a large left-sided pneumothorax, and a second chest tube was placed below the current chest tube on the left side. See PTRs, received June 2010 at p.4-5 of 150. On December 20, 2009, the Veteran became hypotensive, and by December 21, 2009, he remained hypotensive, was unable to oxygenate the rest of his body, and developed right heart failure and eventually pulseless electrical activity and died. His final diagnoses were pneumothorax, adult respiratory distress syndrome, respiratory failure, and metastatic lung carcinoma to thoracic spine. In light of the above evidence of record, the Board finds that the preponderance of the evidence is against finding that the cause of the Veteran's death was related to his active service. As shown above, the Veteran's lungs were found to be normal at the time of his separation from service, and a chest x-ray at that time was normal. There is no proof oc carcinoma during service or within one year of separation. He was not diagnosed with lung cancer until February 2004, which was decades after his service. There is no medical evidence tending to indicate any link between the Veteran's lung cancer and associated metastases in the cervical and thoracic spine and his active service, or any of his service-connected disabilities. There is no evidence tending to indicate that the Veteran's service-connected lumbosacral disability or knee disabilities either caused or contributed substantially or materially to his death. While the Board is certainly sympathetic to the appellant's loss, the Board notes that she has not advanced any particular theory as to how the Veteran's lung cancer was related to his active service. Therefore, in summary, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for the cause of the Veteran's death; the benefit of the doubt rule is not for application. B. DIC under 38 U.S.C.A. § 1318 Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse or children in the same manner as if the Veteran's death is service-connected, even though the veteran died of non-service-connected causes, if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was "entitled to receive," compensation for service-connected disability that: (1) was continuously rated as totally disabling for the 10 years immediately preceding death; (2) was continuously rated as totally disabling for a period of not less than 5 years from the date of his discharge or release from active duty; or (3) was continuously rated as totally disabling for a period of not less than one year immediately preceding death, and the veteran was a former prisoner of war (POW) who died after September 30, 1999. 38 U.S.C.A. § 1318 (West 2014); 38 C.F.R. § 3.22(a) (2016). The total rating may be schedular, or may be a total disability rating based on individual unemployability due to service connected disability (TDIU). 38 C.F.R. § 3.22(c). The term "entitled to receive" means that, at the time of death, a veteran had filed a claim for disability compensation during his lifetime, and the veteran had service-connected disability rated totally disabling by VA for the requisite time period, but was not receiving compensation due to six possible circumstances: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C.A. § 5314 to offset an indebtedness of the veteran; (3) the veteran had not waived retired or retirement pay in order to receive compensation; (4) VA was withholding payments under the provisions of 10 U.S.C.A. § 1174(h)(2); (5) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (6) VA was withholding payments under 38 U.S.C.A. § 5308 but determines that benefits were payable under 38 U.S.C.A. § 5309. 38 C.F.R. § 3.22(b)(3). In addition, the term "entitled to receive" can mean that a veteran filed a claim for disability compensation during his lifetime and one of the following two circumstances is met: (1) the veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error (CUE) committed by VA in a decision on a claim filed during the veteran's lifetime concerning the issues of service connection, disability evaluation, or effective date; or (2) additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section. 38 C.F.R. § 3.22(b)(1) and (2). The Federal Circuit has held that claims for DIC under 38 U.S.C.A. § 1318 are not subject to a "hypothetical entitlement" analysis. See Rodriguez v. Peake, 511 F.3d 1147, 1156 (2008); see also Tarver v. Shinseki, 557 F.3d 1371, 1377 (Fed. Cir. 2009). Therefore, the state of the law is such that claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during a veteran's lifetime and without consideration of hypothetical entitlement for benefits raised for the first time after the veteran's death. See Rodriguez v. Peake, 511 F.3d 1147 (2008). The appellant claims entitlement to DIC under 38 U.S.C.A. § 1318. At the Board hearing, her representative alleged that the Veteran was in receipt of a TDIU for 10 years at the time of his death. At the time of his death, the Veteran was service-connected for a lumbosacral strain with degenerative disc disease (40 percent), a chronic variously diagnosed disorder or the right knee, status-post arthroscopy (40 percent), and residuals, left knee injury, post-operative (10 percent). His combined rating was 10 percent from July 10, 1992, 50 percent from August 30, 1995, and 70 percent from March 28, 2000. He was awarded a TDIU effective March 28, 2000. The Board notes by way of background that the effective date of the TDIU rating, March 28, 2000, is the same date that the schedular criteria for a TDIU were met, as the Veteran's combined rating was 70 percent effective March 28, 2000, and 50 percent prior to. See Rating codesheet, November 2001; 38 C.F.R. § 4.16 (2016). It was also the same effective date as the award of a higher initial rating for the Veteran's right knee disability from 10 to 40 percent, which award was based on limitation of flexion shown on a February 2001 VA examination. See Rating decision, November 2001. As shown above, the Veteran was only in receipt of a TDIU (100 percent disability compensation) due to service-connected disabilities for nine years at the time of his death in December 2009. 38 U.S.C.A. § 1318(b) (West 2014); 38 C.F.R. § 3.22(a) (2015). Based thereon, the Board finds that the preponderance of the evidence shows that the criteria for entitlement to DIC under 38 U.S.C.A. § 1318 are not met. The Board notes that the appellant has not averred that 1) but for CUE committed by VA in a decision during the Veteran's lifetime, the Veteran would have received totally disability compensation for the requisite 10 years; or 2) new and material evidence consisting of service department records that existed at the time of a prior VA decision but that were not previously considered by VA provides a basis for reopening a final claim and awarding a total disability rating retroactively for the requisite period of time; or 3) but for the receipt of VA or military retirement pay, the Veteran would have been entitled to total disability compensation for the requisite period of time. See Fugo v. Brown, 6 Vet. App. 40 (1993); Damrel v. Brown, 6 Vet. App. 242 (1994) (emphasizing the pleading requirements for a CUE claim). Rather, it appears that, unfortunately, the appellant erroneously believed the Veteran to have been in receipt of a TDIU for 10 years at the time of his death. Therefore, in light of all the above, the Board concludes that entitlement to DIC pursuant to 38 U.S.C.A. § 1318 is not warranted by a preponderance of the evidence; the benefit of the doubt rule is not for application. ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to DIC under 38 U.S.C.A. § 1318 is denied. REMAND A. DIC under 38 U.S.C.A. § 1151 The appellant also claims entitlement to DIC under 38 U.S.C.A. § 1151. Her primary contention, in short, is that but for the right middle lobe lobectomy performed by VA in February 2004, the Veteran would not have died in December 2009 when undergoing surgical treatment at St. Joseph's Hospital that involved a left pneumothorax complication. See Board hearing transcript, November 2016. She alleged at the Board hearing that the right middle lobe lobectomy was the result of negligence on the part of VA. As explained in detail above, January 2004 VA treatment records show the Veteran was diagnosed with lung cancer of the right lower lobe. See VA treatment records, received February 2004 at p.16 of 67 (February 9, 2004 "RLL"). In February 2004, a right lower lobe lobectomy was planned at the VA medical center. See CAPRI, received February 2004 at p.7 of 67. The February 2004 VA operative report shows that the pre-operative diagnosis was right lower lobe lung cancer, but that both right lower and right middle lobectomies were performed because "the initial pulmonary artery branch that appeared to be going to the right lower lobe was indeed going to the right middle lobe. It was decided at this time that the right middle lobe should be taken as well." Under 38 U.S.C.A. § 1151, DIC compensation shall be awarded for a qualifying death of a veteran in the same manner as if such death was service-connected, if such death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. See also 38 C.F.R. § 3.361 (2016). The proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's death, it must be shown that such hospital care, medical or surgical treatment, or examination caused the Veteran's death, and 1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's, informed consent. 38 C.F.R. § 3.361(d)(1). The Board notes that a copy of the informed consent for the February 2004 right lower lobe lobectomy performed by VA has not been associated with the claims file. Therefore, this matter should be remanded so that a copy of the informed consent for the February 2004 procedure may be obtained. A November 2010 VA medical opinion was obtained, but the VA examiner did not address whether the February 2004 right middle lobe lobectomy proximately caused the Veteran's death in December 2009, and if so, whether it was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Rather, the VA examiner's focus was on the care provided and informed consents obtained in 2009. The examiner was not asked to address the February 2004 right middle lobe lobectomy. Therefore, on remand, a new VA medical opinion should be obtained to address whether the February 2004 right middle lobe lobectomy proximately caused the Veteran's death in December 2009, and if so, whether it was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. In addition, the appellant alleged an alternate theory in a March 2010 statement - that VA's failure to offer and provide chemotherapy treatment to the Veteran around July 2009, apparently when the T1 lesion was discovered and after he already underwent radiation on his cervical metastases. See Form 21-4138, March 22, 2010 (LCM-VVA). In other words, she alleges that VA's failure to properly treat the Veteran's metastatic lung cancer with chemotherapy was the proximate cause of the natural progress of the disease that ultimately caused his death. In that regard, 38 C.F.R. § 3.361(c)(2) provides that hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Therefore, on remand, the VA examiner's opinion should also address whether the failure by VA to offer chemotherapy treatment in 2009, or any time, proximately caused the continuance or natural progress of the Veteran's metastatic lung cancer, and if so, whether such failure was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file a copy of the informed consent for the December 2004 right lobe lobectomy performed by VA. 2. After the above development has been completed, obtain a VA medical opinion to clarify whether it is "at least as likely as not" that the December 2004 right middle lobe lobectomy performed by VA proximately caused the Veteran's death in December 2009. If so, the examiner should also address whether the right middle lobe lobectomy was a) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or b) an event not reasonably foreseeable. If the examiner finds that the December 2004 right middle lobe lobectomy proximately caused the Veteran's death, but no informed consent for the right middle lobe lobectomy is found, the examiner should be asked to address whether the right middle lobe lobectomy involved necessary medical care in an emergency situation necessary to preserve life or prevent serious impairment of the health of the Veteran, and whether waiting to obtain consent would have increased the hazard to the life or health of the Veteran. See 38 C.F.R. §§ 3.361(d)(1)(ii) and 17.32(b). Please explain to the VA examiner that it is the appellant's contention that the Veteran would have survived the December 2009 cervical and thoracic surgery at St. Joseph's Hospital that involved a left pneumothorax but for the December 2004 right middle lobe lobectomy performed by VA. Also, please explain to the VA examiner that "an event not reasonably foreseeable" is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment. Finally, please ask the VA examiner to address whether the failure by VA to offer chemotherapy treatment around July 2009, when the T1 lesion was discovered, or at any time, proximately caused the continuance or natural progress of the Veteran's metastatic lung cancer, and if so, whether such failure was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. Any opinion must be accompanied by a complete rationale. 3. Then, readjudicate the appellant's claim. If the claim remains denied, the appellant should be provided a Supplemental Statement of the Case (SSOC). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs