Citation Nr: 1803617 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-10 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes, to include as due to herbicide agent exposure. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a testicle disability (residuals of testicular torsion). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant and friend (R.D.) ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 1969 to January 1973. These matters come before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma. In February 2017, the Veteran and a witness testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The newly reopened issue of entitlement to a testicular disability (residuals of testicular torsion) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not have service in Vietnam nor did he serve near the air base perimeter in Ubon, Thailand. 2. The most probative evidence of record is against a finding that the Veteran had exposure to an herbicide agent in service, and the earliest evidence of diabetes is not for more than two decades after separation from service. 3. The most probative evidence of record is against a finding that the Veteran's diabetes is causally related to, or aggravated by, service. 4. In a May 1973 decision, the RO denied the Veteran's claim for entitlement to service connection for a testicular disability (testicular torsion). 5. New and material evidence to reopen a claim of entitlement to service connection for a testicular disability has been received. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Evidence received since the 1973 RO decision that denied service connection for a testicle disability (torsion of testicle), which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 1154 (a), 5108, 7105 (West 2014); 38 C.F.R. § 3.156, 20.200 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Service Connection in General Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a) (West 2014). Presumptive service connection - herbicide exposure VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. In addition, if a Veteran served on one of the specific air bases noted below as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), evidence of daily work duties, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. See VA's Adjudication Procedure Manual, M21-1, Part IV, subpart ii, Chapter 1, section H, topic 5. This applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The designated Thailand bases are the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. Id. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. §3.307(a)(6)(ii). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). New and Material Evidence (NME) In general, Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1100. RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the concept of a well-grounded claim). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Diabetes The Veteran seeks service connection on a presumptive basis and has asserted several possibilities as to how he may have been exposed to an herbicide agent in service. Initially, the Board finds that the most probative evidence of record is against a finding that the Veteran had service in Vietnam. The Board acknowledges the Veteran's statements that he landed in Vietnam; however, the Board finds that the statements, in this particular claim, are insufficient upon which to base service connection. The Veteran had service in Thailand for one year from November 1969 to November 1970. In a March 2012 statement, the Veteran reported as follows: During a flight from Thailand to Vietnam over the Ho Chi Mihn Trail my plane, a C-130 gunship was re-routed and had to land in Vietnam for several hours. I do not have the date of this and ask you to refer to my service record for any evidence of this." In a May 2013 statement, the Veteran reported as follows: In the spring of 1970 I was on a sortie with my aircraft (56-0490) AC130A gun ship. We were returning from our mission when we were diverted away from Ubon because of enemy activity at the base. We landed in Vietnam for approximately an hour before being cleared to return to Ubon. The flight engineer and I left the aircraft and inspected the exterior including the cowlings for damage. We were outside the aircraft for approximately 1/2 hour. . . . This was a night flight and was flown during combat. The Veteran's Airman Performance Report for the period December 1969 to June 1970 (which would include the Spring of 1970) reflects that his duty was as an aircraft maintenance specialist. The report reflects the Veteran's service and duties; however, it is entirely negative for flying on aircraft during missions, flying in combat, facing enemy attack, or flying in sorties (i.e. attacks). If the Veteran had such experiences, it seems entirely reasonable that such would have been noted when he was evaluated. Rather, the report reflects that he performed inspections, functional checks, preventive maintenance and repairs, and serviced equipment. The Veteran's other Airman Performance Report for the remainder of his time in Thailand is likewise negative for service in Vietnam or flying on missions. In addition, the Veteran's DD 214 specifically reflects that he did not have Vietnam service, and there are no military personnel records which reflect such service. Thus, the Board finds that the most probative evidence is against a finding that the Veteran was in Vietnam in service for any period of time. In making this determination, the Board has considered the memories may fade over time, especially as to exact location(s), and that the Veteran's statements were made more than 40 years after his service and for compensation purposes. Next, the Board will discuss the Veteran's assertion that he was exposed to an herbicide agent due to working on planes in service. The Veteran worked on AC-130 aircraft, which is not the type which is known to have been used during Operation Ranch Hand (see VA's M21-1). There is no competent credible evidence of record that the Veteran was exposed to an herbicide agent in service due to his handling of aircraft. Although, the Veteran's buddy J.B. (who states he served with the Veteran in Thailand) stated that "our aircraft flew in combat through many areas in Vietnam, leaving a residue in and around the airframe", and the Veteran stated that he worked on C-130s, and on "contaminated" cargo planes in the United States, neither J.B. nor the Veteran has not been shown to be competent to identify herbicides, including those (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) for which presumptions of service connection may apply. 38 C.F.R. § 3.307 (a)(6); the Board finds that a lay person is not competent to make such an assessment. In addition, the claims file includes a VA memorandum of record which notes that "there are no studies that we are aware of showing harmful health effects for any such secondary or remote herbicide contact [from aircraft other than the UC-123] that may have occurred." The Board has also considered the Veteran's assertion that he was exposed to an herbicide agent while in Thailand from air, grass, or other means. In essence, he contends that he was exposed to an herbicide agent because he was stationed at Ubon; he testified that the substance was sprayed with a hose and that he "ate it", it was on his clothing, and it left an oily residue in their barracks and on equipment. The claims file includes February 2014 correspondence from J.B. who reported that he served with the Veteran from 1969 through 1970 in Thailand and that, before and during this time, Agent Orange was sprayed throughout the installation, and that "our slat framed, open air billets happened to be next to this perimeter. With the wind, this defoliant would flow through and permeate these billets, leaving a residue on much of our gear." J.B. also noted that to "get to our squadron buildings and aircraft, we'd walk through secure fencing, again areas where defoliant had been sprayed", and the Veteran has presented photographs of himself around aircraft. VA has acknowledged that there was significant use of herbicides on the fenced-in perimeters of military bases Thailand. However, the preponderance of the evidence is against a finding that the Veteran duties were "near" the perimeter similar to a security policeman or dog handler. The Veteran has testified that he was a crew chief, mechanical repair and took care of planes on the ground. He testified that he worked on the flight line and that the planes were parked in "revetments" "made out of steel and filled with dirt" during the day and were launched at night. When asked how close he was to the perimeter, the Veteran responded "[i]t depends" and indicated that if the aircraft were at the washing station, he was perhaps 30 to 50 yards (or 90 to 100 feet) from the perimeter border of the airbase (see Board hearing transcript, page 5). He reported that "they sprayed the whole base" and stated that "I'm really offended that they would say it's just on the perimeter." He also reported that "every now and then" there were threats of an attack to the base and everyone would take a position on the perimeter. According to the M21-1, presumptive service connection is warranted for U.S. Air Force veterans who served at certain bases in Thailand, to include Ubon, if they had duties as a policeman, as patrol dog handler, in a security police squadron, or "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." In providing for presumption service connection based on service in Thailand, VA specifically did not extend the presumption to all service-members who served there (e.g. traveled through the gates to enter the base, or worked in view of the perimeter), but instead found it should be provided to those members whose duties actually placed them on the perimeter where they would come in contact with sprayed areas; the M21-1 provides examples of such service. Although the term "near" is not defined, the Board, based on the M21-1 examples of covered duties, finds that it is meant to convey duties which would require routine, extensive, frequent, or prolonged, presence on the edge of the base (e.g. the fence line) where spraying was used to control vegetation, as suggested by the "evidence of daily work duties." The Board finds that the Veteran's reports of occasional time on the perimeter or occasional duties that took him within 30 to 50 yards of the perimeter does not equate with work near the base perimeter as contemplated by M21-1. The evidence does not show, nor does the Veteran contend that he had daily duties, or nearly so, which required him to be on the base perimeter itself. Finally, the Board notes that the claims file includes a December 2012 response from the National Personnel Records Center (NPRC) that there are "no records of exposure to herbicides" for the Veteran, and a March 2013 VA memorandum detailing a formal finding of a lack of information required to verify exposure to herbicide, to include a request for any temporary duty orders (see September 2012 NPRC response). In sum, the Veteran's assertions of herbicide exposure are outweighed by the more probative evidence to the contrary. The Veteran's MOS (military occupational specialty) was a mechanic which is not one which the VA provisions recognize as having duties on or near the perimeter, the military records do not support a finding that he worked on or near the perimeter of an listed airbase in Thailand such as to warrant presumptive exposure, there is no provision of law establishing a presumption of second-hand exposure from the type of aircraft or equipment on which the Veteran worked; he and other lay people are not qualified to identify herbicide agents or to opine that such were on the specific aircraft or equipment, and he did not have service in Vietnam. The Board acknowledges the February 2014 statement by Dr. M. S. A. (Permanente Medical Group, Inc.) in which he stated that "exposure to Agent Orange more likely than not is responsible for causing diabetes mellitus". The Board finds that the opinion lacks probative value. The Board does not dispute that certain herbicide agents (e.g. Agent Orange) have been linked to diabetes in some circumstances; however, as there is no competent credible evidence that this particular Veteran had Agent Orange exposure in service, the clinician's statement lacks probative value. Accordingly, the preponderance of the evidence is against a conclusion that the Veteran was exposed to an herbicide agent during service; thus, the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 apply do not apply. The Board has also considered whether the service connection for diabetes is warranted on a direct nonpresumptive basis, or on a presumptive basis based on manifestation within one year of separation from service but finds that it is not. The STRs are negative for diagnosis of, or treatment for, diabetes. His December 1972 Report of Medical Examination for separation purposes reflects that his urine was negative for sugar and that he denied diabetes. The Veteran contends that he was diagnosed with diabetes in approximately 1996, and Dr. M.S. A. stated that the Veteran has been treated for diabetes since 2005 at his facility; regardless, the onset was still more than two decades after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The evidence is against a finding that the Veteran had diabetes within one year of separation from service. Based on the foregoing, the Board finds that service connection for diabetes is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). NME - Residuals of testicular torsion Historically, the Veteran's claim for service connection for testicular torsion was denied in an unappealed May 1973 RO rating decision because the Veteran's separation examination revealed no residuals/complaints of the testicle(s). Evidence at time of the last final denial At the time of the last final denial, the only evidence of a testicular disability was the Veteran's statement that he had an operation and was hospitalized for such in April 1969 at Lackland Air Force Base (see VA Form 21-526a (Veteran's Application for Compensation or Pension at Separation from Service) and VA Form 21-6789 (Deferred or Confirmed Rating Decision). The Veteran's December 1972 Report of Medical Examination reflects that the Veteran's medical history consisted of adenotonsillectomy in childhood with left ear scar tissue, cramps in the legs upon exertion, hemorrhoids, weight gain, blood pressure fluctuations with weight, and excessive worry and nervous trouble. The Veteran denied a family history of diabetes or psychosis, use of contact lenses or drugs, a history of motion sickness or disturbances of consciousness, and all other significant medical or surgical history. The Veteran's STRs reflect an upper respiratory infection (URI) (February 1969), viral URI (seen three times in March 1969), right ear blocked (October 1969), ear complaints (November 1969), URI (June 1970), a rash (September 1970), a hemorrhoid (October 1970), a sprained wrist (October 1970), viral URI and mononucleosis (seen five times in January 1971, February 1971), numbness of left leg (February 1971), heavily perspiring while sleeping, and discharged from the hospital in February 1971 after having had mononucleosis (February 1971), an immature personality with moderate anxiety (April 1971), overweight with no medical reason and no other complaints (April 1971), fatigue and vertigo (May 1971), weight checks (May, June, October, November 1971, and March and May 1972), a sore throat (June 1972), and soft tissue swelling of elbow after fall from ladder (December 1972). The STRs reflect that the Veteran was given quarters for URI/mononucleosis in January and February 1971, and a temporary profile of his left arm in December 1972. The STRs are entirely negative for testicular torsion complaints, surgery for such, or hospitalization for such. Evidence added to the record since the last final denial The evidence added to the record since the last final denial includes the Veteran's May 2013 written statement in which he reported that he was on pain medication for six months after his alleged testicular surgery, his testimony at a February 2017 Board hearing that he had surgery on a testicle in April 1969, but also, and importantly, his statement that he has pain with dressing and sitting, and physical intimacy. The claims file also now includes two "buddy statements". The Veteran's ex-wife, F.A. wrote in a 2014 statement that she joined the Veteran in July 1969 and that he had "extreme pain" during intercourse and that they could not regain the physical relationship that they had before his claimed testicular operation. The Veteran's current wife (S.S.) wrote in a March 2014 statement that during their entire marriage since December 1990, the Veteran had had problems with his testicles. New and Old evidence taken together The Board finds, given the low threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), that new and material evidence has been received. At the time of the last final denial, the claims file did not include evidence of a current disability. The newly received statements with regard to pain, which are presumed credible for purposes of reopening the Veteran's claim, are evidence of a possible current disability (i.e. pain alone is not a disability but may be a symptom of a current disability.) Based on the foregoing, the claim is reopened. ORDER Entitlement to service connection for diabetes is denied. As new and material evidence has been received to reopen the claim of entitlement to service connection for a testicle disability, the claim is reopened, and the claim is granted to that extent only. REMAND Having reopened the Veteran's claim, the Board finds that it may not adjudicate it prior to RO consideration. In addition, further development may be useful. As noted above, the Veteran contends that he was hospitalized for one week in April 1969 due to testicular surgery. The only hospitalization noted in the STRs is with regard to mononucleosis. Nevertheless, the Board notes that in the past, in-patient records may have been stored independently from, and not filed with, individual STRs, but instead filed by year and place of treatment.) The RO should attempt to obtain all records, if any, for in-patient services at Lackland Air Force Base for the Veteran for March and April 1969 (the Veteran contends that the surgery was the weekend of Easter 1969, but it is possible that he was incorrect; thus, the RO should also search for the month prior). In addition, the Veteran has not provided clinical evidence of a current diagnosis, or of treatment for, a testicular disability. Thus, he should be requested to provide such records, if any exist. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all VA and private clinical records, and provide such records or authorization for VA to obtain them, for treatment of a testicular disability. 2. Contact the National Personnel Records Center (NPRC) or any other appropriate facility, to include the Lackland Air Force Base hospital directly, and request copies of all clinical (inpatient) records, if any, for the Veteran for March and April 1969. (In-patient records may be independent from, and not filed with, individual STRs, but instead filed by year and place of treatment.) 3. Following completion of the above, take any other appropriate action, and thereafter, adjudicate the issue of entitlement to service connection for a testicular disability. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs