Citation Nr: 1815231 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 13-19 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to an increased evaluation for patellofemoral syndrome of the left knee, currently rated as 20 percent disabling. 3. Entitlement to a separate compensable evaluation for limitation of flexion due to patellofemoral syndrome of the left knee. 4. Entitlement to a separate compensable evaluation for limitation of extension due to patellofemoral syndrome of the left knee. 5. Entitlement to a separate compensable evaluation for recurrent subluxation or lateral instability due to patellofemoral syndrome of the left knee. 6. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to July 1986 and from February 1988 to August 1992. These matters come before the Board of Veterans' Appeal (Board) on appeal from October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a personal hearing before a Veterans Law Judge in her July 2013 substantive appeal; however, prior to the hearing, the Veteran cancelled the hearing and did not request a postponement or motion for a new hearing. The hearing request is therefore deemed withdrawn. 38 C.F.R. § 20.704(d). In April 2015 and June 2017, the Board remanded the issues of entitlement to an increased evaluation for patellofemoral syndrome of the left knee and TDIU for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The issue of entitlement to service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran's patellofemoral syndrome of the left knee has been manifested by frequent episodes of "locking," pain, and effusion into the joint and has been assigned a 20 percent rating, the highest rating available for cartilage, semilunar, dislocated; there is no evidence of ankylosis of the left knee. 2. From September 20, 2010 to July 28, 2017, the Veteran's patellofemoral syndrome of the left knee has been manifested by limitation of flexion, with consideration of pain, to no less than 110 degrees. 3. Since July 28, 2017, the Veteran's patellofemoral syndrome of the left knee has been manifested by limitation of flexion, with consideration of pain, to no less than 35 degrees. 4. Since September 20, 2010, the Veteran's patellofemoral syndrome of the left knee has been manifested by limitation of extension, with consideration of pain, to no worse than 0 degrees. 5. Since September 20, 2010, the Veteran's patellofemoral syndrome of the left knee has been manifested by slight recurrent subluxation or lateral instability, but has not been manifested by moderate recurrent subluxation or lateral instability. 6. Prior to September 16, 2016, service connection was in effect for recurrent urinary tract infections, rated as 40 percent disabling effective September 26, 2006; sinusitis, rated as 30 percent disabling effective September 26, 2006; patella femoral syndrome, left knee, rated as 20 percent disabling effective September 26, 2006; depressive disorder, rated as 30 percent disabling effective June 8, 2010; degenerative arthritis, left foot, rated as 10 percent disabling effective September 26, 2006 to June 8, 2010 and 20 percent thereafter; bunionectomy, left foot, rated as 10 percent disabling effective September 26, 2006; bunionectomy, right foot, rated as 10 percent disabling effective September 26, 2006; patellofemoral syndrome, right knee, rated 10 percent disabling effective September 20, 2010; and reflex sympathetic dystrophy, right ankle, rated as 10 percent disabling effective September 20, 2010. Due to the grant herein, service connection is also in effect for limitation of flexion due to patellofemoral syndrome, left knee, rated as 10 percent disabling effective September 20, 2010 to July 28, 2017 and 20 percent thereafter; limitation of extension due to patellofemoral syndrome, left knee, rated as 10 percent disabling effective September 20, 2010; and recurrent subluxation/lateral instability due to patellofemoral syndrome, left knee, rated as 10 percent disabling effective September 20, 2010. 7. The Veteran's service-connected disabilities do not preclude her from securing or following a substantially gainful occupation CONCLUSIONS OF LAW 1. Throughout the pendency of the appeal, the criteria for a rating in excess of 20 percent for patellofemoral syndrome of the left knee in regard to dislocation of semilunar cartilage have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258 (2017). 2. From September 20, 2010 to July 28, 2017, the criteria for a separate 10 percent rating, but no higher, for limitation of flexion due to patellofemoral syndrome of the left knee have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2017). 3. Since July 28, 2017, the criteria for a 20 percent rating, but no higher, for limitation of flexion due to patellofemoral syndrome of the left knee have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2017). 4. Since September 20, 2010, the criteria for a separate 10 percent rating, but no higher, for limitation of extension due to patellofemoral syndrome of the left knee have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2017). 5. Since September 20, 2010, the criteria for a separate rating of 10 percent, but no higher, for recurrent subluxation/lateral instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2017). 6. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In specific regard to rating disabilities of the knee, precedent opinions of VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). Further, in Lyles v. Shulkin, the Court recently held that evaluation of a knee disability under the diagnostic codes for recurrent subluxation or instability; limitation of extension; or limitation of flexion does not preclude as a matter of law a separate evaluation of a meniscal disability under Diagnostic Code 5258 or 5259-the diagnostic codes for removal or dislocation of semilunar cartilage. No. 16-0994, 2017 U.S. Vet. Claims LEXIS 1704, at *18 (2017). Accordingly, in light of the above, when evaluating the Veteran's left knee disability, the Board may assign separate ratings for: (1) recurrent subluxation or lateral instability; (2) limitation of flexion; (3) limitation of extension; and (4) symptoms associated with the dislocation or removal of semilunar cartilage. Lastly, when an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. "It is the intention to recognize actually painful . . . joints due to healed injury as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran contends an increased rating is warranted for her left knee. Currently, the Veteran is in receipt of a 20 percent disability rating for frequent episodes of "locking," pain, and effusion into the joint associated with patellofemoral syndrome of the left knee. The 20 percent rating is assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5258, which pertains to dislocation of the semilunar cartilage. The Board notes that throughout the pendency of the appeal, the Veteran has been in receipt of the maximum schedular rating based on disability of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5258. As such, the issue is whether separate ratings are warranted under Diagnostic Codes 5257, 5260, and 5261 since September 20, 2010. Diagnostic Code 5257 provides the rating criteria for instability and subluxation of the knee. A rating of 10 percent is assigned for slight disability; a rating of 20 percent is assigned for moderate disability; and, a rating of 30 percent is assigned for severe disability. 38 C.F.R. § 4.71a. Diagnostic Codes 5260 and 5261 provide the rating criteria for limitation of knee motion. 38 C.F.R. § 4.71a. Normal range of motion of the knee is 0 degrees in extension and 140 degrees in flexion. 38 C.F.R. § 4.71a Plate II. Diagnostic Code 5260 provides that limitation of knee flexion to 60 degrees is rated as noncompensable; limitation of knee flexion to 45 degrees is rated as 10 percent disabling; limitation of knee flexion to 30 degrees is rated as 20 percent disabling; and limitation of knee flexion to 15 degrees is rated as 30 percent disabling. Diagnostic Code 5261 provides that limitation of knee extension to 40 degrees is rated as 40 percent disabling and limitation of knee extension to 45 degrees is rated as 50 percent disabling. VA treatment records from September 2010 to September 2016 reflect that the Veteran has consistently complained of constant left knee pain worsened with walking and reported that she uses knee braces and a cane to balance and ambulate. At a November 2010 VA examination, the Veteran reported subluxation and that her left knee would give away. She endorsed flare-ups precipitated by stress, cold, rain, and physical activity that result in an inability stand or walk for extended periods, as well as limitation of motion and stumbling and falling. Physical examination of the left knee showed the Veteran had flexion limited to 120 degrees with pain starting at 100 degrees and normal extension. The examiner noted that the Veteran's medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability test were all within normal limits for the left knee and that the left knee showed no signs of subluxation, instability, or guarding of movement. The examiner also determined that the Veteran's left knee joint function is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There was no evidence of left knee ankylosis. An April 2013 knee and disability benefits questionnaire reflects that the Veteran reported flare-ups of the knees that limit exercise, sports, prolonged standing, and prolonged ambulation. She also endorsed knee stiffness with prolonged sitting. The examiner observed that the Veteran had left knee flexion limited to 130 degrees, with painful motion at 110 degrees. The Veteran had normal (0 degrees) extension. She had left knee flexion of 125 degrees and normal left knee extension after repetitive use testing. The examiner determined that the Veteran' functional loss factors of less movement than normal, pain on movement, swelling, and interference with sitting, standing, and weight-bearing with the bilateral knees. The examiner observed the Veteran's medial medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability test were all within normal limits. The examiner also noted no evidence of recurrent subluxation or dislocation but did state that the Veteran had crepitus and grinding with movement during the examination. The examiner reported that the Veteran's knees impact her ability for prolonged standing or walking and that sedentary work was preferred. At an August 2016 VA examination, the Veteran reported flare-ups of the left knee characterized by pain and less movement. The examiner determined the Veteran had flexion limited to 125 degrees and extension at 0 degrees with no pain noted and no loss of function or range of motion noted after repetitive use testing. The examiner also noted that the Veteran's examination was conducted during a flare-up and that pain, weakness, fatigability, or incoordination did not significantly limit her functional ability during flare-ups or with repetitive use over time. The examiner noted no ankylosis of the left knee and no contributing factors of disability; he also determined the Veteran had no history of subluxation, lateral instability, or recurrent effusion. The examiner also opined that the Veteran's condition did not impact her ability to perform occupational tasks. At an October 2016 VA examination, the examiner determined the Veteran had left knee flexion limited to 130 degrees and extension at 0 degrees, with no pain noted and no loss of function or range of motion noted after repetitive use testing. The examiner also noted that pain, weakness, fatigability, or incoordination did not significantly limit her functional ability with repeated use. The examiner noted that the Veteran had additional contributing factors of disability for the left knee, including less movement than normal. The examiner noted no ankylosis of the left knee and determined the Veteran had no history of subluxation, lateral instability, or recurrent effusion. The examiner also opined that her condition did not impact her ability to perform occupational tasks. Pursuant to the June 2017 Board remand, the Veteran was afforded a VA examination in July 2017. The Veteran reported progressively worsening knee pain, instability, and stiffness. She also reported knee popping and constant flare-up lasting over a week at a time resulting in an inability to walk. The examiner determined the Veteran had left knee flexion limited to 35 degrees and left knee extension at 0 degrees, with pain upon flexion noted on examination and causing functional loss. The examiner also observed that there was pain on palpation and decreased range of motion and pain with passive range of motion testing. Although the examiner noted no pain in the left knee with weight-bearing, she did report the Veteran had pain with nonweight-bearing. The examiner noted the exam was not conducted during a flare-up and could not comment on whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. The examiner reported reduced muscle strength with left knee flexion and extension but no ankylosis. The examiner also determined the Veteran had no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner reported the Veteran's left knee condition did not impact her ability to perform occupational tasks. Based on review of the foregoing, the Board finds that since September 20, 2010, the disability picture for the Veteran's left knee condition most closely approximated the criteria for a 10 percent rating for limitation of extension and a 10 percent rating for recurrent subluxation. Examination findings reveal that the Veteran had left knee extension at 0 degrees, with pain, throughout the pendency of the appeal. Although extension at 0 degrees would result in a 0 percent rating pursuant to Diagnostic Code 5261, given the Veteran's credible reports of painful motion, the Board finds that a 10 percent rating for left knee extension is warranted since September 20, 2010. See 38 C.F.R. § 4.59. As for left knee instability or subluxation, the Board finds that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. Although VA examiners determined the Veteran did not have a history of recurrent subluxation or lateral instability, throughout the pendency of the appeal the Veteran has consistently reported stumbling, falling, subluxation, instability, knee popping, and that her left knee would give away. Treatment records also show the Veteran wears a knee brace for balance. The April 2013 VA examiner also noted crepitus and grinding with movement of the left knee. As the Veteran has not indicated a significant degree of severity during the pendency of her appeal, the Board finds that the Veteran's symptoms most nearly approximated slight lateral instability during the pendency of the claim, and the preponderance of the evidence reflects that her symptoms did not more nearly approximate moderate instability. Furthermore, the disability picture for the Veteran's left knee condition most closely approximated the criteria for a 10 percent rating for limitation of flexion from September 20, 2010 to July 28, 2017, and the criteria for a 20 percent rating thereafter. Examination findings revealed that prior to July 28, 2017 the Veteran had flexion ranging from 130 degrees and up to 110 degree, which was limited due to pain. The Veteran did not have left knee flexion limited to 45 degrees or less, as needed for a rating in excess of 10 percent. Although flexion limited to 130, 125, 120, or 110 degrees would result in a 0 percent rating pursuant to Diagnostic Code 5260, given the Veteran's credible reports of painful motion, the Board finds that a 10 percent rating for left knee flexion is warranted prior to July 28, 2017. See 38 C.F.R. § 4.59. Examination findings do reveal that since July 28, 2017, the Veteran had flexion limited to 35 degrees, which would warrant a 20 percent rating. The Veteran did not have left knee flexion limited to less than 30 degrees, as needed for a rating in excess of 20 percent. See 38 C.F.R. § 4.7 ("Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating"). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has met the percentage requirements in this case as of September 26, 2006. The Board notes that the Veteran has been in receipt of a combined 100 percent rating for her service-connected disabilities since September 16, 2016. As a 100 percent rating is the maximum payable, the period since September 16, 2016 is not for consideration in the appeal of TDIU and the issue of entitlement to a TDIU is rendered moot. The remaining question is whether the Veteran's service-connected disabilities prior to September 16, 2016 preclude her from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). For a veteran to prevail on a TDIU claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The United States Court of Appeals for the Federal Circuit held that applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Federal Circuit's decision in Geib governs the adjudication of this appeal. See Chisem v. Brown, 8 Vet. App. 374, 375 (1995). Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Here, although the Veteran claimed that she has been unable to perform her work due to her service-connected disabilities, and that the disabilities have affected her full-time employment since January 2007, the Veteran has not indicated that she is too disabled to work. See September 2016 Veteran's Application for Increased Compensation Based on Unemployability. To the contrary, the Veteran reported that she worked 32 hours per week until March 2015 and she has continued to work for 16 hours per week since March 2015. VA treatment records reflect that the Veteran occasionally worked full-time during the summer. The evidence shows that in 2014 she earned $25,000 as a receptionist. In September 2016, the Veteran also reported that she earned $1,088 per month, which amounts to a yearly total of $13,056. Prior to March 2015, the Veteran earned approximately $2,088 per month, which amounts to a yearly total of $25,056. As explained above, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. According to the U.S. Department of Commerce, the poverty threshold for 2016 for one person under the age of 65 is $12,486. The Veteran is currently 52 years old. As such, the Board finds that the Veteran's employment as a receptionist is not marginal employment. Additionally, VA examiners found that the Veteran's disabilities did not affect her ability to work in sedentary employment. Although the Veteran occasionally reported stress due to increased work demands despite her disabilities, the record does not reflect that she had difficulty performing the physical and mental acts required for employment. In this case, the Board finds that the preponderance of the evidence shows that the Veteran's service-connected disabilities do not render her unemployable. Therefore, a TDIU is not warranted. ORDER An evaluation in excess of 20 percent for patellofemoral syndrome of the left knee in regard to dislocation of semilunar cartilage is denied. An evaluation of 10 percent, but no higher, for limitation of flexion, due to patellofemoral syndrome of the left knee, is granted from September 20, 2010 to July 28, 2017. An evaluation of 20 percent, but no higher, for limitation of flexion, due to patellofemoral syndrome of the left knee, is granted from July 28, 2017. An evaluation of 10 percent, but no higher, for limitation of extension, due to patellofemoral syndrome of the left knee, is granted from September 20, 2010. An evaluation of 10 percent, but no higher, for recurrent subluxation/lateral instability, due to patellofemoral syndrome of the left knee, is granted from September 20, 2010. Entitlement to a TDIU is denied. REMAND The December 2016 rating decision denied the claim of entitlement to service connection for GERD. The Veteran filed a timely January 2017 notice of disagreement, and therefore the issue is in appellate status. As the RO has yet to issue a statement of the case (SOC) as to that issue, a remand is required. See 38 C.F.R. § 19.9 (c) (2017) (codifying Manlincon v. West, 12 Vet. App. 238 (1999)); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement.") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC addressing the issue of entitlement to service connection for GERD. The Veteran is hereby notified that, following the receipt of the SOC concerning that issue, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, that issue should be returned to the Board for appellate review. 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 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 (2012). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs