Citation Nr: 1753022 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-29 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for headaches. 3. Entitlement to a higher staged initial rating for internal derangement of the right knee, currently evaluated as 10 percent disabling prior to July 31, 2013 (excluding the period from September 23, 2011 through October 31, 2011 during which a temporary 100 percent rating was in effect) and 20 percent disabling from July 31, 2013. 4. Entitlement to a higher initial rating for arthritis of the right knee (associated with internal derangement), currently evaluated as 10 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 23, 2011 and/or from August 14, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from January 1991 to January 1994, February 2003 to May 2004, and from September 2006 to November 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated April 2008 and October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This case was previously remanded by the Board in February 2016. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In November 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In an October 2013 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's internal derangement of the right knee to 20 percent, effective July 31, 2013. In addition, the AOJ granted a separate 10 percent rating for right knee arthritis, effective July 31, 2013. As the increases did not satisfy the appeal in full, the issues remain on appeal and have been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The rating period on appeal as to a higher initial rating for service-connected right knee disability is from November 24, 2007. During the pendency of the appeal for a higher initial rating, the Veteran filed a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in June 2012. In an October 2012 rating decision, the RO granted a TDIU effective October 2, 2011, the date the Veteran's previous employer indicated he was last employed, to August 13, 2012, the day preceding the effective date for the grant of a 100 percent schedular rating for PTSD. Also, special monthly compensation was awarded from September 23, 2011 to October 31, 2011. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the United States Court of Appeals for Veterans Claims (the Court) determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114 (s). Thus, the Court reasoned, it might benefit the veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. Therefore, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Board may address the issue of entitlement to a TDIU prior to September 23, 2011 and/or from August 14, 2012. The issue of entitlement to service connection for headaches, and entitlement to a TDIU prior to October 2, 2011 and from August 14, 2012, are addressed in the REMAND portion of the decision and are REMANDED to the AOJ. FINDINGS OF FACT 1. The most probative evidence of record does not reflect a current hearing loss disability for VA purposes. 2. Prior to July 31, 2013, (excluding the period from September 23, 2011 through October 31, 2011, during which a temporary 100 percent rating was in effect), the Veteran's internal derangement of the right knee was manifested by no worse than slight recurrent subluxation or lateral instability. 3. From July 31, 2013, the Veteran's internal derangement of the right knee was manifested by no worse than moderate recurrent subluxation or lateral instability. 4. Throughout the relevant period, the Veteran's arthritis of the right knee was manifested by painful, limited flexion that was noncompensable under the relevant rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2016). 2. The criteria for entitlement to a higher initial rating for internal derangement of the right knee, currently evaluated as 10 percent disabling prior to July 31, 2013 (excluding the period from September 23, 2011 through October 31, 2011 during which a temporary 100 percent rating was in effect) and 20 percent disabling from July 31, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016). 3. The criteria for entitlement to a higher initial rating for arthritis of the right knee, rated as 10 percent disabling from July 31, 2013, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that he currently has a bilateral hearing loss disability that began during his active service. See, November 2015 Board hearing transcript. To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Thus, a hearing loss disability for VA purposes is defined by 38 C.F.R. § 3.385 and is based on objective audiometric and speech recognition testing. In this case, the record is absent for evidence of a current bilateral hearing loss disability as defined under 38 C.F.R. § 3.385 at any time during the appeal period or in proximity to the claim for service connection. See McLain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Specifically, a May 2008 VA examination includes an audiogram report revealing the following findings, measured in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 20 LEFT 5 15 15 10 10 The Veteran had 100 percent speech discrimination in both ears on testing using the Maryland CNC word list. Thus, the audiological testing conducted in conjunction with the May 2008 VA examination did not reveal findings that would indicate hearing loss disability for VA purposes under 38 C.F.R. § 3.385 in either ear. A January 2009 audiogram related to the Veteran's reserve service reveals the following findings, measured in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 0 15 10 15 15 LEFT 25 30 30 10 15 The January 2009 audiogram does not indicate whether the Veteran was provided a speech discrimination test using the Maryland CNC word list. The January 2009 audiogram did not reveal findings that would indicate hearing loss disability for VA purposes under 38 C.F.R. § 3.385 in either ear. There are no other audiological measurements of record dated any time during the appeal period or in proximity to the claim for service connection that shows a hearing loss disability for VA purposes in either ear. The Board has considered the Veteran's contention that he has hearing loss that began during his active service. The Veteran, as a lay person, is competent to report that he has difficulty hearing; however, he is not competent to diagnose a hearing loss disability for VA purposes. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). Diagnosing a hearing loss disability for VA purposes involves diagnostic medical testing and requires medical expertise and knowledge the Veteran has not been shown to possess. Therefore, the Veteran's reports of hearing loss do not constitute competent evidence of a bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385. In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case the record is absent for competent evidence of a bilateral hearing loss disability for VA purposes during or in proximity to the appeal period. Without evidence of a current hearing loss disability for VA purposes, the Board need not address the other elements of service connection. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Increased Ratings for Service-Connected Right Knee Disabilities The Board now turns to the issue of entitlement to higher initial ratings for the Veteran's service-connected right knee internal derangement (instability) and arthritis aside from the temporary total rating from September 23, 2011 through October 31, 2011. The Veteran is currently in receipt of a 10 percent rating prior to July 31, 2013, aside from the temporary total rating, and 20 percent from July 31, 2013 under Diagnostic Code 5257, for right knee internal derangement, and a 10 percent rating under Diagnostic Code 5010-5260 from July 31, 2013 for right knee arthritis. These ratings account for the Veteran's right knee instability and painful motion of the knee, respectively. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. The service-connected right knee internal derangement was rated as 10 percent disabling from November 24, 2007 through July 30, 2013, aside from the temporary total rating from September 23, 2011 through October 31, 2011. To warrant a higher initial rating under that diagnostic code, the Veteran's service-connected right knee disability would have to manifest in moderate recurrent subluxation or lateral instability. However, the record does not show such manifestations during the period. In January 2008, the Veteran was provided a VA consultation. The Veteran exhibited pain in the right knee. Upon examination, the Veteran had normal range-of-motion with no effusion or soft tissue swelling. Additionally, the Veteran did not demonstrate mediolateral instability. The Veteran was provided a VA examination in March 2011. The March 2011 VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he had right knee pain, instability, stiffness, weakness, incoordination and locking episodes. The Veteran did not report episodes of subluxation. He further stated he can stand for 15 to 30 minutes and walk a quarter mile. The Veteran reported that he always uses a brace. Upon examination the Veteran had flexion to 98 degrees and extension was noted as normal. The Veteran did not demonstrate evidence of pain following repetitive motion and there were no additional limitations after three repetitions of range of motion. Additionally, the Veteran did not demonstrate right knee instability or ankylosis. The Veteran was provided a VA knee examination in May 2012. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported instability with the right knee giving out, daily pain and stiffness, increased pain with weight bearing , and difficulty with stairs. Upon examination the Veteran had flexion to 130 degrees with painful motion beginning at 110 degrees and no limitation of extension. The Veteran did not demonstrate functional loss or additional limitation in range-of-motion after repetitive use testing. The Veteran demonstrated normal anterior, posterior, and medial-lateral stability in the right knee. Additionally, he did not demonstrate patellar subluxation. The medical evidence of record shows that the Veteran did not demonstrate right knee instability at the January 2008 VA consultation. At the March 2011 VA examination the Veteran reported right knee instability however no instability was shown upon examination. He again reported instability at the May 2012 VA examination but no instability was shown on examination. Accordingly, the record does not show that the Veteran was entitled to an initial rating in excess of 10 percent under Diagnostic Code 5257 at any time during the periods from November 24, 2007 through September 22, 2011, or from November 1, 2011 through July 30, 2013. The Veteran was provided a VA knee examination in July 2013. The July 2013 VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran complained of ongoing painful range-of-motion. Additionally, he reported flare-ups that occur with activity such as excessive use of stairs or prolonged weight-bearing. Upon examination his right knee flexion was to 125 degrees with pain at 105 degrees; he demonstrated normal extension. The Veteran was able to perform repetitive use testing with no additional functional loss. The Veteran had normal anterior, posterior and medial-lateral stability. The examiner noted moderate patellar subluxation of the right knee. The Veteran was provided a VA knee examination in October 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran described a daily constant aching pain with occasional sharp pains throughout the day with walking. The Veteran did not report flare-ups or additional functional loss or functional impairment with repeated use over time. Upon examination the Veteran's flexion was to 130 degrees and extension was to 0 degrees with pain that did not cause additional functional loss. The VA examiner reported no recurrent subluxation, lateral instability or recurrent effusion. The Veteran demonstrated normal anterior, posterior, medial and lateral stability. He did not have ankylosis of the right knee. The Veteran was provided a VA knee examination in April 2017. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran described pain, locking, giving out and limited activities. He stated he has flare-ups several times per week. Upon examination the Veteran's right knee flexion was to 120 degrees and extension was to 0 degrees. No pain was noted on examination. He was able to perform repetitive use testing without additional functional loss. The Veteran did not demonstrate joint instability during testing. He did not have ankylosis of the right knee. The VA examiner noted the Veteran had frequent episodes of joint "locking." The medical evidence of record shows that the Veteran demonstrated moderate patellar subluxation of the right knee at the July 2013 VA examination. The Veteran did not demonstrate right knee instability or recurrent subluxation at the October 2016 or April 2017 VA examinations. Accordingly, the record does not show that the Veteran was entitled to an initial rating in excess of 20 percent under Diagnostic Code 5257 at any time from July 31, 2013. The service-connected right knee arthritis is rated as 10 percent disabling under Diagnostic Code 5010-5260 from July 31, 2013. This rating was awarded based on traumatic arthritis of the right knee with painful, limited motion. Additional or higher initial ratings could be warranted if the Veteran's service-connected right knee disability manifested in flexion limited to 30 degrees or less and/or extension limited to 15 degrees or more. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Throughout the period from July 31, 2013 the Veteran's right knee flexion was limited, at its most severe, to 125 degrees and his extension was limited, at its most severe, to 0 degrees. Such limitation does not warrant an additional or higher rating under Diagnostic Codes 5260 and 5261. In determining the appropriate ratings for the Veteran's service-connected right knee disability throughout the relevant rating period, the Board has considered whether the Veteran was entitled to higher or additional ratings under the other criteria for rating disabilities of the knees and leg. In this case, 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262 and 5263 are not for consideration because the record does not reflect that the Veteran had ankylosis of the right knee, impairment of the tibia and fibula associated with the service-connected right knee disability, or genu recurvatum of the right knee at any time during the rating period. In addition, prior to July 31, 2013, the Veteran is not entitled to a higher rating or additional ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5258, which provides a 20 percent rating where there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. The May 2012 VA examination confirmed that the Veteran had a meniscus condition. However, the record does not show that he had frequent episodes of "locking," as required under Diagnostic Code 5258. In that regard, the Board acknowledges the Veteran's complaints of locking at the March 2011 VA examination. However, the record does not show frequent episodes of locking. At the May 2012 VA examination the Veteran stated he had improvement in locking and the VA examiner did not note frequent episodes of joint locking. As such, the record does not support a finding that the Veteran had frequent episodes of locking, as required for a compensable rating under Diagnostic Code 5258. Thus, the requirements for a 20 percent rating under Diagnostic Code 5258 have not been met prior to July 31, 2013. As to the period from July 31, 2013 the Board recognizes that at the April 2017 VA examination the VA examiner noted that the Veteran had a meniscus condition with frequent episodes of joint locking and pain in the right knee. However, the Veteran is receiving compensation for his symptoms of locking and pain in the form of compensation for limitation of motion under Diagnostic Codes 5010-5260, as well as subluxation or instability under Diagnostic Code 5257. Therefore, assigning a separate rating under Diagnostic Code 5258 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). The Board has also considered whether the record shows that the Veteran was entitled to a higher initial rating based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. 202, Burton v. Shinseki, 25 Vet. App. 1 (2011). However, the Board finds that the assigned rating for right knee arthritis considers functional loss and impairment due to pain, and there is no probative evidence of the degree of limitation required for a higher rating. Notably, as discussed above, the range-of-motion testing revealed significant motion, including after repetition. The July 2013 VA examination reflected pain on motion at 105 degrees however the Veteran's pain did not cause decreased range-of-motion to warrant a higher rating. Therefore, the Board finds that the overall impairment resulting from the knee disability still more nearly approximates the 10 percent rating from July 31, 2013. At the April 2017 VA examination, the Veteran also reported that he experiences flare-ups a few times a week which causes him to do less activity. There is no indication in the record as to how he might have been additionally limited during flare-ups other than doing "less activity." Additionally, at the October 2016 VA examination he denied flare-ups. The Board concludes that the record does not show that the Veteran was additionally limited by pain, fatigability, incoordination, pain on movement, or weakness during flare-ups or on repetitive use over time such that higher initial ratings for the service-connected right knee disabilities were warranted at any time during the rating period. The Board finds that the Veteran's pain and functional loss, including instability, are encompassed by the ratings provided under Diagnostic Codes 5257 and 5010 for the service-connected right knee disability. Therefore, higher initial ratings are not warranted at any time during the rating period under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca, 8 Vet. App. 202. In summary, the Board finds that the Veteran is not entitled to a higher initial rating or additional rating for either service-connected right knee disability during the relevant rating period. To the extent the Veteran seeks ratings for the service-connected right knee disability in addition to or higher than those assigned previously, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a higher staged initial rating for internal derangement of the right knee, currently evaluated as 10 percent disabling prior to July 31, 2013 (excluding the period from September 23, 2011 through October 31, 2011 during which a temporary 100 percent rating was in effect) and 20 percent disabling from July 31, 2013 is denied. Entitlement to a higher initial rating for arthritis associated with internal derangement of the right knee, currently evaluated as 10 percent disabling is denied. REMAND The Veteran asserts that he is entitled to service connection for headaches. The Board finds that the issue must be remanded for further evidentiary development before a decision may be made on the merits of the claim. The Veteran asserts that he currently suffers from headaches, and that the headaches either began during his active service due to explosions from weapons used during his deployment in Iraq or that his service aggravated a preexisting headache disability. See, November 2015 Board hearing transcript. The medical evidence of record shows that the Veteran has been treated for headaches and has been prescribed medication for the condition. Furthermore, the service treatment records reflect that the Veteran reported frequent headaches in May 2004. The Veteran is competent to report headaches but is not competent to provide a medical link between the current headaches and his active service. See Layno v. Brown, 6 Vet. App. 465 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran has not yet been provided a VA examination as to the reported headaches, and there is no competent evidence of record discussing the possible medical link between the current headaches and the report of headaches in the service treatment records. Thus, there is competent evidence of a current disability, evidence establishing that an in-service event or injury occurred, and an indication that the current disability may be associated with the in-service event or injury; but insufficient competent medical evidence of record to make a decision on the claim. Accordingly, the Board finds that on remand the Veteran must be provided a VA examination as to the claim for entitlement to service connection for headaches. See 38 U.S.C.A. § 5103A (d)(2); 38 C.F.R. § 3.159 (c) (4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that there is some indication in the record that the Veteran had a headache disability prior to entrance into active service. For example, at the November 2015 Board hearing, the Veteran testified that he had headaches during high school after a football related injury. Under the governing criteria, Veterans are considered to have been in sound condition when accepted for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). A preexisting injury will be considered to have been aggravated where there is an increase in disability during service. 38 C.F.R. § 3.306 (2016). In this case, the Veteran's January 1991 entrance examination contains a notation that the Veteran had a football related concussion in 1986-1987. The notation further notes that the Veteran was "dazed only." On remand, the examiner should be asked to provide an opinion as to whether the Veteran had a preexisting condition of headaches upon entrance to active service and, if so, whether that condition increased in severity during his active service. See 38 C.F.R. § 3.306 (a). The issue of entitlement to a TDIU prior to September 23, 2011 and/or from August 14, 2012 is inextricably intertwined with the issue of service connection for headaches, as the outcome of the latter issue may affect adjudication of the former issue. As such, Board adjudication of the TDIU issue is deferred pending completion of the action requested below. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he either provide a copy of all treatment for headaches prior to service, to include treatment for a football injury resulting in a concussion, or provide authorization for release of such treatment records to VA. Appropriate attempts should be made to obtain all identified records and any records so obtained must be included in the record. 2. Following completion of the action requested above, schedule the Veteran for a VA examination to determine the nature and likely etiology of any headache disability. Provide a copy of this Remand and the claims file to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: a) Considering the notation of "concussion - football, 1986-87 Dazed only" on the report of medical examination for entrance into active service, as well as all reports of clinical treatment for headaches of record, is there clinical demonstration of record that the Veteran had a preexisting chronic headache disability prior to entrance into service? b) If so, is there clinical demonstration of record that the Veteran's preexisting headache disability increased in severity during his active service? c) If the Veteran did not have a preexisting headache disability upon entrance into service, is it at least as likely as not (50 percent probability or greater) that the Veteran has a current headache disability that had its onset during his active service or is otherwise causally related to his active service? The examiner must indicate that the record was reviewed. A full rationale must be provided for any opinion given. 3. After completion of the above, review the expanded record, including the evidence entered since the supplemental statement of the case, and determine whether service connection may be granted for headaches, and entitlement to a TDIU prior to September 23, 2011 and/or from August 14, 2012. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. 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). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs