Citation Nr: 1807598 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 15-09 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1318. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran had active service in the United States Army from March 1944 to August 1945; he was awarded the Combat Infantryman's Badge (CIB) and the Purple Heart Medal. The Veteran died in December 2012. The appellant is seeking benefits as the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the appellant's cause of death claim. The New York, New York RO currently has jurisdiction over the appellant's claims. The Board notes that the New York RO addressed the issue of entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C.A. § 1318 in the Statement of the Case (SOC) issued in February 2015. Therefore, the issues on appeal are as listed on the title page. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The appellant provided testimony at a hearing held at the Board in Washington, DC before the undersigned Veterans Law Judge in September 2016. The transcript from that hearing has been associated with the evidence of record. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case must take into account the existence of this electronic record. The issue of entitlement to service connection for the cause of the Veteran's death is addressed in the REMAND portion of the decision below and that matter is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran died in December 2012. 2. In a rating decision issued in July 1997, service connection for posttraumatic stress disorder (PTSD) was granted and an initial rating of 10 percent was assigned to the Veteran, effective March 18, 1997. 3. The Veteran appealed the initial 10 percent rating and, in a rating decision issued in February 1999, the initial evaluation was increased to 30 percent, effective March 18, 1997. 4. The Veteran continued his appeal and, in a rating decision issued in May 2004, the rating for the PTSD was increased from 30 percent to 100 percent, effective February 11, 2004. 5. In written correspondence received from both the Veteran and his representative in May 2004, the Veteran stated that he was satisfied with the most recent rating decision and that he wished to withdraw all pending appeals. 6. The appellant contends that an effective date earlier than February 11, 2004, should have been assigned for the Veteran's 100 percent evaluation for his service-connected PTSD. 7. The Veteran was never a prisoner of war, the interval between the Veteran's release from active duty and his death was more than five years and the Veteran was not in receipt of compensation at the 100 percent rate due to service-connected disabilities for a period of 10 or more years prior to his death. CONCLUSION OF LAW The criteria for dependency and indemnity compensation (DIC) pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 38 U.S.C.A. § 1318 Claim Under 38 U.S.C.A. § 1318, VA death benefits may be paid to a deceased veteran's surviving spouse 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 was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; or was rated totally disabling continuously since the veteran's release from active duty and for a period of not less than five years immediately preceding death; or was rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death if the veteran was a former prisoner of war who died after September 30, 1999. The total rating may be either schedular or based upon unemployability. 38 U.S.C.A. § 1318. In order for Dependency and Indemnity Compensation (DIC) benefits to be awarded under the provisions of 38 U.S.C.A. § 1318, it must be established that the Veteran received or was entitled to receive compensation for a service-connected disability at the rate of 100 percent for a period of 10 years immediately preceding his death. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). For purposes of 38 U.S.C.A. § 1318, "entitled to receive" means that at the time of death, the veteran had a service-connected disability rated totally disabling by VA but was not receiving compensation because; (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 applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA rating decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments because the veteran' s whereabouts were unknown, but the veteran otherwise was entitled to continued payment based on a total service-connected disability rating; (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. Based on the evidence of record, the Board find that the requirements of 38 U.S.C.A. § 1318 for an award of DIC benefits are not met and will not be met in this case. It is undisputed that the Veteran was not a former prisoner of war and, because the Veteran was discharged from active duty in August 1945, the 5-year rule of 38 U.S.C.A. § 1318 has not been satisfied. In addition, he was rated less than 100 percent disabled from the time of his separation from service through January 2004. Furthermore, the Veteran was not rated 100 percent disabled for the 10-year period immediately preceding his death. In this case, the Veteran was awarded a 100 percent disability rating for his service-connected posttraumatic stress disorder (PTSD) in a rating decision issued in May 2004. The effective date for the 100 percent rating was February 11, 2004, and the Veteran died in December 2012. For this reason, it is not legally possible to establish a 100 percent rating for a 10 year period to meet the eligibility requirement for DIC under 38 U.S.C.A. § 1318. The Board notes that the appellant, in her September 2016 Board hearing testimony and in various written statements, contends that an effective date earlier than February 11, 2004, should have been assigned for the Veteran's 100 percent evaluation for his service-connected PTSD. Review of the evidence of record reveals that service connection for PTSD was granted in a July 1997 rating action and that an initial rating of 10 percent was assigned to the Veteran, effective March 18, 1997. The Veteran appealed the initial 10 percent rating and, in a rating decision issued in February 1999, the initial evaluation was increased to 30 percent, effective March 18, 1997. Thereafter, the Veteran continued his appeal and, in a rating decision issued in May 2004, the rating for the PTSD was increased from 30 percent to 100 percent, effective February 11, 2004. An initial evaluation in excess of 30 percent was denied prior to February 11, 2004. In written correspondence received from both the Veteran and his representative in May 2004, the Veteran stated that he was satisfied with the most recent rating decision and that he wished to withdraw all pending appeals. Therefore the May 2004 rating decision was not appealed and became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. The appellant's argument concerning the alleged VA error in the May 2004 rating decision essentially involves an assertion that the AOJ misconstrued the facts and evidence in that decision and that the Veteran should have been granted a 100 percent evaluation back to the date of his claim for service connection for PTSD (March 18, 1997). Her argument further is that, but for the alleged VA error in the assignment of an effective date of February 11, 2004, for the 100 percent evaluation for PTSD, the Veteran would have been in receipt of a total disability rating for at least 10 years prior to his death, entitling her to DIC under 38 U.S.C. § 1318. The appellant has thus raised an assertion of clear and unmistakable error (CUE) in the May 2004 rating decision as part of her underlying claim of entitlement to DIC under 38 U.S.C. § 1318. In general, previous determinations, which are final and binding, including decisions of service connection, degree of disability and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). To establish a valid CUE claim, a claimant must show that either the correct facts, as they were known at the time, were not before the adjudicator, or that the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310 (1992). The United States Court of Appeals for Veterans Claims (Court) has stressed consistently the rigorous nature of the concept of CUE. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell v. Principi, 3 Vet. App. 310, 313-4. It must always be remembered that CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). However, the Court has barred claimants from seeking to disturb the finality of a prior rating decision by filing a freestanding earlier effective date claim. Rudd v. Nicholson, 20 Vet. App. 296 (2006). To the extent that the appellant's DIC claim under 38 U.S.C. § 1318 is based on an assertion of CUE in the May 2004 rating decision that assigned an effective date of February 11, 2004, for the 100 percent rating for PTSD, the Board finds that she cannot bootstrap a CUE claim onto a procedurally deficient earlier effective date claim. The appellant's earlier effective date claim is deficient procedurally because it cannot be used to collaterally attack a prior final rating decision and, to the extent that an earlier effective date claim is included as part of her DIC claim under 38 U.S.C. § 1318, that claim must be dismissed pursuant to Rudd. In Rudd, the Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Thus, the appellant cannot rely on this procedurally deficient earlier effective date claim in order to get a vague and unsubstantiated CUE claim adjudicated by the Board as part of her DIC claim under 38 U.S.C. § 1318. The evidence of record shows that, pursuant to the Veteran's appeal of his initial disability evaluation for PTSD, the RO, in a May 2004 rating action, created a two-tier rating with a 30 percent evaluation in effect from March 18, 1997 to February 10, 2004, followed by a 100 percent evaluation effective from February 11, 2004 onward. Later that same month, the Veteran stated that he was satisfied with that rating decision and withdrew his claim of entitlement to a higher initial disability rating for his PTSD. He never indicated any disagreement with the assignment of February 11, 2004 as the effective date for the 100 percent evaluation. The next communication received from the Veteran was in November 2005, and that communication was not related to the May 2004 rating action. The Veteran died in December 2012 without ever indicating any dissatisfaction with the February 11, 2004 effective date. Therefore, there was no claim concerning the May 2004 rating action pending at the date of the Veteran's death that would overcome the law that states that veterans' claims do not survive their deaths. See Zevalkink v. Brown, 102 F.3d 1236 (1996); see also 38 C.F.R. § 20.1302. Although he died several years after the May 2004 rating decision was issued, the Veteran also did not submit any statements relevant to this claim within one year of the May 2004 rating decision that would render said rating decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). The May 2004 rating decision cannot be collaterally attacked by filing a freestanding earlier effective date claim. As such, the Board cannot adjudicate a claim for an effective date earlier than February 11, 2004, for the assignment of a 100 percent evaluation for PTSD based on an allegation of CUE in the May 2004 rating decision without violating the Court's express prohibition against freestanding earlier effective date claims found in Rudd. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, there is no legal entitlement to an effective date earlier than February 11, 2004, for the 100 percent PTSD rating. As a result, the Veteran was not rated 100 percent disabled for the 10-year period immediately preceding his death. Therefore, DIC benefits under 38 U.S.C.A. § 1318 are precluded. 38 U.S.C.A. § 1318. As held by the Court in Rodriguez v. Peake, 511 F.3d 1147 (Fed Cir. 2008), the Board need not review whether there is any disorder of record for which service connection could have been established and then assign a total rating for the appropriate period of time so as to warrant the award of DIC benefits under 38 U.S.C.A. § 1318, also known as "hypothetical entitlement." Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009); 38 C.F.R. § 3.22. As the evidence shows the Veteran (i) was not continuously rated totally disabled during the 10 years preceding his death, (ii) did not die within five years of discharge from active duty, or (iii) was not a former prisoner of war, the criteria for DIC pursuant to 38 U.S.C.A. § 1318 have not been met; therefore, the appellant's claim is without legal merit and must be denied. As the law is dispositive of this claim, it must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Finally, VA's duty to notify and assist claimants in substantiating a claim for VA benefits is codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as effective date. However, in this case, because the application of the law to the undisputed facts is dispositive of the appeal on the issue of entitlement to DIC benefits under 38 U.S.C.A. § 1318, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). Furthermore, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the 38 U.S.C.A. § 1318 claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In sum, the record has been fully developed, and it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence she should submit to substantiate her claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the statutory duty to assist requirements and the implementing regulations. ORDER Entitlement to DIC benefits under 38 U.S.C.A. § 1318 is denied. REMAND To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. For a service-connected disability to constitute a contributory cause, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Id. The Veteran died at the age of 87 in December 2012; the death certificate lists the immediate cause of death as brain death that was listed as due to, or as a consequence of, prolonged cardiac arrest of an unknown duration. No medical diagnoses were listed as significant conditions that contributed to the Veteran's death but did not result in the previously stated underlying cause. No autopsy was performed. At the time of the Veteran's death, he was service connected for several disabilities: a psychiatric disability (PTSD) that was evaluated as 100 percent disabling, effective from February 2004; shell fragment wound residuals of the right foot that were evaluated as 30 percent disabling, effective from February 1946; tinnitus that was evaluated as 10 percent disabling, effective from November 2001; and bilateral hearing loss that was evaluated as zero percent disabling, effective from March 1997. The combined rating for the service-connected disabilities was 30 percent, effective from February 1946; 50 percent from March 1997; 60 percent from November 2001; and then 100 percent from February 11, 2004. The Veteran's non-service-connected diagnoses (as noted in a VA problem list added to the evidence of record in April 2013) included anemia, prostate cancer, cervical radiculopathy, lumbago, peripheral vascular occlusive disease, coronary artery disease, hypersomnia with sleep apnea, acute respiratory failure, tracheostomy status, atrial fibrillation, congestive heart failure and hyperlipidemia. In addition, a December 2012 private hospital record indicates that the Veteran had a history of hypertension, seizures, cardiac and cerebrovascular/stroke. The appellant contends, in essence, that the cardiac arrest that caused the Veteran's death was related to the service-connected PTSD. She argues that the Veteran's psychiatric disability caused, worsened or aggravated the cardiac-related problems that led to his death. She has submitted a written statement from a physician to the effect that the Veteran's death was causally related to his medical condition (that presumably included his service-connected disabilities). Review of the evidence of record reveals that the Veteran was treated by both VA health care personnel and private medical treatment providers. However, while the Veteran died in December 2012, almost no medical records dated after 2002 have been included in the evidence of record. In her VA Form 9, the appellant asked that the Veteran's medical records from VA facilities dated between 1997 and 2012 be reviewed. In addition, the Veteran's death certificate stated that he died at a private hospital, but only a few pages of treatment records from that facility have been included in the evidence of record. Furthermore, treatment by a private internist (2002 to 2011) and a private cardiologist (1997 to 2008) has been reported, but the associated records are not included in the claims file. Nor have the records associated with the Veteran's 1998 cardiac surgery been included in the claims file. Therefore, VA is on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). While the case is in remand status, VA must obtain all outstanding medical treatment records, VA and private, dated from 1997 onward. As previously noted, the appellant contends that the Veteran's service-connected PTSD was an underlying cause of his fatal cardiac arrest and she has submitted a medical opinion in support of that contention. However, that November 2016 medical opinion does not include any rationale, reasoning or explanation that specifically relates a service-connected disability with the cause of the Veteran's death. While this case is in remand status, the appellant is free to supplement the record with an additional medical opinion that addresses this deficiency if she so desires. The RO did not consider the matter of secondary service connection, to include by way of aggravation, and no medical opinion was obtained by the RO in relation to the appellant's contention. For the duty to assist to require that a VA medical opinion be obtained with respect to a claim seeking service connection for the cause of death, there must be a reasonable possibility that a medical opinion would aid in substantiating the claim. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir 2008); Delarosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). In this case, there is medical evidence of record to indicate that the Veteran's service-connected PTSD played a role in the cause of his death. In light of these factors, the Board finds that the duty to assist in this case requires that a VA medical opinion should be obtained on remand. The medical evidence of record is insufficient for the Board to render a decision. The considerations above require investigation by medical professionals as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Therefore, to ensure full compliance with due process requirements, this case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any and all outstanding VA inpatient and outpatient medical treatment records dated after 1996. 2. After obtaining the appropriate release forms from the appellant, obtain all outstanding private treatment records dated from 1997 onward, to include records from Dr. E. Tzanides, Dr. A. Homayuni and the terminal records from Maimonides Medical Center. 3. All items of correspondence, as well as any medical or treatment records obtained, must be made a part of the claims file. If private treatment is reported and those records are not obtained, the appellant and her representative must be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 4. After accomplishing the above development and after completing any additional notification and/or development action deemed warranted by the record, arrange for the Veteran's records to be reviewed by a cardiologist or pathologist for a determination of the cause(s) of the Veteran's death. If the reviewing physician does not have access to the electronic file, any relevant records contained in the electronic file that are not available to the reviewer must be otherwise made available to the reviewer. The reviewer must render opinions as to the existence of any cardiac disorder and the cause of the Veteran's death. In particular, the reviewer must provide an opinion as to each of the following questions: a. Did the Veteran suffer from any chronic cardiac disorder at the time of his death? If yes, list the pertinent diagnoses and give the onset date for each diagnosis. Include a discussion of the appellant's contention that the Veteran suffered a heart attack on the day he was wounded in 1945, that she indicates is reflected by ECG results dated in 2002 showing prior antero-lateral myocardial infarction of unknown date; the discussion should make reference to the service treatment records, VA treatment records dated from 1945 onward and the post-service private treatment records. b. What was the primary/immediate cause of the Veteran's death? c. What were the contributing conditions leading to the primary/immediate cause of the Veteran's death? Include an explanation of any interconnected vascular conditions such as hyperlipemia, cerebrovascular disease, occlusive vascular disease, ischemic heart disease, hypertension and coronary artery disease. d. Did the Veteran's service-connected PTSD cause or contribute substantially or materially to his death? e. Did any service-connected disability cause or contribute substantially or materially to the Veteran's death? f. Was there any service-related pathology which caused general impairment of health such that the Veteran was materially less capable of resisting the effects of whatever disease or event was the primary cause of death? The reviewer must identify the information on which the opinions are based. The opinions must adequately summarize the relevant history and clinical findings, and provide a detailed explanation as to all medical conclusions rendered. Any relevant medical opinion of record must be discussed by the reviewing physician. In assessing the relative likelihood as to origin and etiology of the conditions specified above, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that any incident or disability related to the Veteran's military service was causally or etiologically implicated in his death; or whether a causal or etiological relationship between his death and his service or any service-connected disability is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. 5. Upon receipt of the VA physician reviewer's report, conduct a review to verify that all requested findings and opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 6. Thereafter, readjudicate the appellant's 38 C.F.R. § 3.312 claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, case law, statutes and regulations, to include direct, secondary and aggravation theories of service connection. 7. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. 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. §§ 5109B, 7112. ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs