Citation Nr: 1804189 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-42 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a neck disorder, and if so, whether service connection is warranted. 2. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the low back. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to January 1995 with an additional 2 years 11 months of active service. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2008 and September 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A February 2017 Board decision assumed jurisdiction over a request to reopen a claim of service connection for a neck disability and remanded the claims on appeal for additional development. The Veteran had a Board hearing in August 2017. The record was held open for 60 days. Thereafter, additional evidence was submitted. In addition, the Board notes that, subsequent to the most recent supplemental statement of the case issued in August 2016, the RO has associated additional evidence with the record. The Veteran's representative expressly waived initial RO consideration of such evidence in December 2017 correspondence. See 38 C.F.R. § 20.1304(c). The decision below addresses all of the claims. The Veteran's low back rating claim is also addressed in the remand section following the decision. FINDINGS OF FACT 1. The Veteran's neck disability was incurred during service. 2. Since at least January 30, 2017, the Veteran's low back disability has manifested by forward flexion of 30 degrees or less, but without unfavorable ankylosis of the entire thoracolumbar spine. 3. For the entire period on appeal, the combined evaluation for the Veteran's service-connected disabilities meets the schedular criteria for a TDIU. 4. Since July 11, 2015, the Veteran is prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to establish service connection for degenerative disc disease of the cervical spine are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. Since at least January 13, 2017, the criteria for a 40 percent rating, but not higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 3. Since July 11, 2015, the criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Claim to Reopen-Neck Disability By a March 2010 rating decision, the Veteran's claim of service connection for a neck disability was denied. He was notified of the decision by letter mailed later in March 2010, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding a neck disability was received until the present claim to reopen in October 2012. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the March 2010 rating decision for that claim. As the Veteran did not appeal the decision, that rating decision is final for the neck disability claim. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a neck disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also August 2012 Treatment Record; February 2013 Physician's Letter; August 2017 Hearing Transcript. The reopened claim is further addressed below. II. Service Connection-Neck Disability Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a 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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Facts and Analysis The Veteran contends that he has a neck disability which he incurred during service. In this regard, in a March 2009 correspondence, the Veteran reported that he has neck pain which began when he fell from the back of a military truck during a field training exercise. Then, during the August 2017 Board hearing, the Veteran reported that his neck condition started during service in 1978 at the time he injured his back, for which he has been granted service connection. The Veteran's service treatment records (STRs) reflect that the Veteran was treated at an orthopedic clinic in October 1978 for a back injury which occurred when the Veteran fell off the back of a truck. However, the Veteran's STRs do not contain reports of, or treatment for, a neck condition during service. Following his discharge from service, private treatment records from May 2008 contain a finding by a physician of disc herniation and spondylitic disease of the Veteran's cervical spine. Thereafter, an August 2012 private treatment record reflects that a private physician found that he has degeneration of the cervical intervertebral disc and cervicalgia. Subsequently, in February 2013, the Veteran submitted a letter from a private physician. The physician reports that the Veteran's current cervical findings are consistent with his prior mechanism of his back injury that occurred during field training in service. The physician further states that the Veteran is now experiencing symptoms from the progression of this original neck injury. Thereafter, the Veteran was afforded a VA examination in regard to this claim in July 2015. The examiner diagnosed the Veteran with degenerative disc disease of the cervical spine. However, the examiner concluded that this condition was not incurred during service because no neck condition was reported during the Veteran's periodic in-service or separation examinations and he was not treated for this condition until five years after separation from service. The examiner instead found that the Veteran's neck disability was the result of post-service stresses and aging. In September 2017, the private physician reiterated that the Veteran's current cervical findings are consistent with his prior mechanism of injury during the field training exercise in which he injured both his lumbar and cervical spine. Based on the foregoing, the Board finds that the Veteran's private physician's assessment in regard to the etiology of his neck disability to be more probative than the VA examiner's assessment. In this regard, the private physician has treated the Veteran for an extended period of time, allowing him to be more familiar with the Veteran's medical history and neck condition than the VA examiner. In addition, the private physician had more time to assess the Veteran's neck condition prior to reaching a conclusion as to its etiology. Furthermore, the Board also accords less probative weight to the VA examiner's opinion because her rationale focused on a lack of in-service treatment for a neck condition and the lapse in time prior to a post-service diagnosis. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing, essentially, that an examination was inadequate where the examiner relied on the absence of medical records to provide a negative opinion). Therefore, the Board finds that the evidence is at least in equipoise as to whether the Veteran's neck disability was incurred during service. Thus, when resolving reasonable doubt in the Veteran's favor, the Board finds that his neck disability was incurred during service.. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for a neck disability-best characterized as degenerative disc disease of the cervical spine. III. Increased Rating-Back Disability Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a , DC 5242. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Facts and Analysis The Veteran contends that his low back disability is not adequately compensated by the assigned rating. In this regard, the Veteran submitted a statement in April 2008 in which he reported experiencing increased back pain with walking and sitting. Also in April 2008, the Veteran's spouse submitted a statement in which she reported that the Veteran's lower back injury had become more extreme and limiting. A letter from the Veteran's private physician dated January 30, 2017 states that the Veteran's back disability is very limiting. Thereafter, this physician completed a VA Disability Benefits Questionnaire in regard to the Veteran's low back disability in September 2017. The Veteran reported having difficulty walking due to severe back pain. The physician reported that the Veteran experiences symptoms of less movement and weakened movement, excess fatigability, incoordination, pain on movement, and interference with sitting and standing. The physician also reported that the Veteran has forward flexion of his back to 10 degrees. The physician estimated that the Veteran has forward flexion of his back is limited to 10 degrees during flare-ups of this condition. The physician noted that the Veteran experiences pain on active and passive movement and on weight-bearing and non-weight bearing movement, but did not report a total lack of movement during such testing. The physician also did not report that the Veteran experiences favorable or unfavorable ankylosis or atrophy due to disuse. In addition, while the physician reported that the Veteran experienced IVDS, he did not find that it was present for two weeks or more in the prior 12 months. The physician further reported that the Veteran did not exhibit radicular pain or other lower extremity symptoms due to radiculopathy. The evidence of record shows that the Veteran began experiencing low back symptomatology indicative of a 40 percent rating, but no higher, at least as early as January 30, 2017. In this regard, the Veteran's private physician wrote a letter on such date indicating that the Veteran's back disability is very limiting. Thereafter, in September 2017, this physician found that the Veteran's back forward flexion is limited to 10 degrees. After reviewing all of the relevant clinical evidence and subjective complaints, the Board finds that the evidence supports a factually ascertainable increase in disability to 40 percent at least as early as January 30, 2017 based on the credible report of severe symptoms provided by the physician's letter and his subsequent range of motion findings. 38 C.F.R. § 4.71a, DC 5242; see also Swain, 27 Vet. App. at 219. While an increase to 40 percent for the Veteran's low back disability is warranted from January 30, 2017, an increase in excess of 40 percent after such date is not supported by the evidence of record. According to the rating criteria discussed above, the September 2017 range of motion results do not warrant an increase in excess of 40 percent. In this regard, the record does not show that the Veteran has experienced unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine since January 30, 2017. 38 C.F.R. § 4.71a, DC 5242. In addition, a higher rating based on IVDS is not warranted since such date as neither the Veteran's treatment records nor the September 2017 examination findings reflect that he experienced IVDS for six weeks or longer during such time period. 38 C.F.R. § 4.71a, DC 5243. The private physician also did not find that the Veteran experiences lower extremity radiculopathy. Furthermore, the private physician did not report, and the Veteran has not claimed, that he experiences bowel or bladder impairment due to his low back disability. After resolving reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran began experiencing forward flexion of his back limited to 30 degrees or less at least as early as January 30, 2017. In consideration of this evidence, the Board finds that a rating of 40 percent, but no higher, is warranted for the Veteran's low back disability as of such date. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, the issue on appeal becomes one of entitlement to a rating in excess of 20 percent prior to January 30, 2017 for degenerative disc disease of the lumbar spine. This issue is addressed further in the remand section below. IV. Entitlement to a TDIU Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. 38 C.F.R. § 4.16(a)(3). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. at 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Facts and Analysis The Veteran reported on his December 2015 TDIU application form that his disabilities began to affect his full time employment as of March 3, 2015. He further reported that he last worked July 10, 2015 as an operating room surgical attendant. He stated that he had to leave this job because his back disability prevents him from lifting, transporting, and preparing patients for treatment and from assembling equipment. He also reported completing four years of college. Thereafter, in January 2016, the Veteran's application for Social Security Administration (SSA) benefits was associated with the file. On a form completed in July 2015 the Veteran reported working as a surgical attendant from 2008 to 2015. Then, during the August 2017 Board hearing, he reported that he is unable to work due to his bilateral ankle, feet, back, sciatica, and headache disabilities. He also reported that he was working fulltime until July 2015. The evidence of record includes a March 2015 finding of a private physician which states that the Veteran is unemployable due to constant pain from his neck and back conditions. The physician states that the Veteran is unable to sit or stand for longer than 30 minutes without severe pain. The physician also stated that he would be unable to maintain employment of any kind including sedentary desk jobs. Thereafter, a different private physician drafted a letter in January 2017. This physician stated that he has treated the Veteran for a long time and that he is permanently and totally disabled due to his back and neck disabilities. The Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities since July 11, 2015. In this regard, the Veteran competently and credibly reported that he can no longer perform physically demanding employment work due to limitations caused by his service-connected disabilities. The Veteran's opinion is supported by the findings of the private physicians offered in March 2015 and January 2017. In this regard, the March 2015 private physician's letter stated that he is prevented from even maintaining strictly sedentary employment. However, prior to July 11, 2015, the Veteran was able to work fulltime as a surgical attendant, which the Board finds constitutes substantial, gainful employment. This is confirmed by the Veteran himself. The remaining issue for this claim is whether the Board is permitted to grant a TDIU in the first instance. The Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). The Veteran is service connected for degenerative disc disease of the lumbar spine, evaluated as 20 percent disabling as from February 1, 1995 to January 29, 2017, and 40 percent disabling thereafter; residuals of a left ankle fracture, evaluated as noncompensable from February 1, 1995 to February 18, 2009, and 20 percent disabling thereafter; residuals of a right ankle fracture, evaluated as noncompensable from February 1, 1995 to February 18, 2009, and 10 percent disabling thereafter; keloid scarring of the scalp, evaluated as noncompensable from February 1, 1995 to February 18, 2009, and 10 percent disabling thereafter; migraine headaches, evaluated as noncompensable from February 1, 1995 to April 13, 2009, and 10 percent disabling thereafter; keloid scarring of the chest, evaluated as noncompensable from February 1, 1995; sciatica of the left lower extremity, evaluated as 10 percent disabling as of February 21, 2008; and bilateral pes planus with hallux valgus, plantar fasciitis, and degenerative arthritis, evaluated as 50 percent disabling as of September 26, 2016. Based on these percentages, the Veteran does not meet the schedular criteria for a TDIU under 4.16(a) because the orthopedic conditions result in a combined rating of 51 percent, which falls short of the 60 percent threshold, even with application of the bilateral factor. Moreover, the headaches and scars ratings are not included because they are not from the same body system or original injury. Nevertheless, in the decision above, the Board is granting service connection for degenerative disc disease of the cervical spine. The claim arose in August 2012, so the eventual rating for this now service-connected disability will apply to the period since July 11, 2015. While a higher rating may be awarded when the RO implements this grant, as a matter of law, at least a 10 percent rating will be awarded. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion is entitled to at least the minimum compensable rating). When including the now service-connected neck disability, the combined rating for disabilities affecting the orthopedic system will be at least 56 percent from July 11, 2015. This rounds to 60 percent for the purposes of meeting the schedular requirements of 38 C.F.R. § 4.16(a). See Gary v. Brown, 7 Vet. App. 229, 231 (1994). Based on the foregoing, the Board finds that the evidence shows that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the combined effects of his service-connected disabilities since July 11, 2015. He also meets the schedular requirements of 38 C.F.R. § 4.16(a). In addition, the evidence clearly shows that he was able to maintain substantial, gainful employment prior to such date. Thus, entitlement to a TDIU is warranted as of July 11, 2015. ORDER New and material evidence having been received, the claim of service connection for a neck disability is reopened. Service connection for degenerative disc disease of the cervical spine is granted. From January 30, 2017, a rating of 40 percent, but no higher, for degenerative disc disease of the low back is granted, subject to the laws and regulations governing the payment of monetary benefits. A TDIU is granted effective July 11, 2015, subject to the laws and regulations governing the payment of monetary awards. REMAND As noted above, the Veteran contends that he should have a higher rating for his service connected low back disability. In this regard, the Veteran was afforded VA examinations to assess the severity of this disability in April 2008, May 2010, April 2013, and February 2016. However, these examination reports do not include detailed range of motion findings or findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). While the Board has concluded that the Veteran's low back disability is entitled to a 40 percent rating, but no higher, as of January 30, 3017, the rating for this disability prior to such date remains on appeal. Therefore, this claim is remanded for a VA examination to obtain retrospective findings in accordance with Correia and Sharp based on the historic range of motion testing noted above. Accordingly, this claim is REMANDED for the following actions: 1. Schedule a VA examination by an appropriate medical professional to assess the severity of the Veteran's service-connected low back disability prior to January 30, 2017, to include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. Following a review of the record and examination, the examiner should provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. Specifically, the examiner should estimate the amount in degrees of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran at the time of VA examinations conducted in April 2008, May 2010, April 2013, and February 2016. The examiner should also estimate the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of VA examinations conducted in April 2008, May 2010, April 2013, and February 2016. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions expressed should be accompanied by supporting rationale. 2. After completing the above, readjudicated the claim remaining on appeal, which is now characterized as entitlement to a rating in excess of 20 percent prior to January 30, 2017 for degenerative disc disease of the low back. Thereafter, the Veteran and his representative should be issued a supplemental statement of the case and return the case to the Board. The Veteran 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 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. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs