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Citation Nr: 1034500 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 08-13 515 ) )

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DATE

On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan

THE ISSUES 1. Entitlement to a rating in excess of 20 percent for low back syndrome with levoscoliosis and thoracic osteophytosis prior to September 4, 2007. 2. Entitlement to a separate, compensable evaluation for neurological manifestations in the right lower extremity prior to September 4, 2007. 3. Entitlement to a rating in excess of 20 percent for low back syndrome with levoscoliosis and thoracic osteophytosis beginning November 1, 2007.

REPRESENTATION Appellant represented by:

The American Legion

ATTORNEY FOR THE BOARD L.J. Bakke-Shaw, Counsel

INTRODUCTION The veteran served on active duty from December 1988 to December 1998. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an October 2007 rating decision, and during the pendency of this appeal, the RO granted a 20 percent evaluation for the service-connected lower back disability prior to September 4, 2007 and beginning November 1, 2007. A temporary total evaluation was granted effective September 4, 2007 to October 31, 2007 under 38 C.F.R. § 4.30 (2009) based on medical evidence the Veteran had undergone right L5-S1 microdiskectomy on September 4, 2007 and was prescribed a convalescence period. However, as the evaluations assigned prior to September 4, 2007 and beginning November 1, 2007 do not constitute a full grant of all benefits possible, and as the veteran has not withdrawn her claim, the issue concerning entitlement to an increased rating for low back syndrome with levoscoliosis and thoracici osteophytosis remains pending. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, an August 2008 rating decision granted service connection for nerve damage to the right leg as associated with the service-connected low back syndrome with levoscoliosis and thoracic osteophytosis and evaluated the disability as 10 percent disabling, effective in December 2007. The Veteran has not appealed the evaluation or effective date assigned. The issue of entitlement to an increased evaluation for low back syndrome with levoscoliosis and thoracic osteophytosis beginning November 1, 2007 addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT 1. Prior to September 4, 2007, the service connected low back syndrome with levoscoliosis and thoracic osteophytosis was manifested by limitation of the thoracolumbar spine to more than 30 degrees but not greater than 60 degrees forward flexion with consideration for pain and additional limitation after repetitive use; no findings of ankylosis; and no periods of incapacitating episodes with prescribed bedrest lasting four weeks or greater. 2. Prior to September 4, 2007, the Veteran exhibited diminished sensation, weakness, and numbness; and decreased hamstring flexibility in the right lower extremity consistent with lumbar disc dysfunction equating to no more than mild incomplete paralysis of the sciatic nerve with no other neurological abnormalities attributable to the service-connected lower back disability.

CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 20 percent prior to September 4, 2007 for low back syndrome with levoscoliosis and thoracic osteophytosis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2009). 2. The criteria for a separate evaluation of 10 percent, but no more, for impairment of the sciatic nerve to the right lower extremity prior to September 4, 2007 have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Letters dated in August 2006 and September 2008 satisfied the duty to notify provisions for the issue of increased evaluations, after which the claim was adjudicated. See 38 C.F.R. § 3.159; Kent v. Nicholson, 20 Vet. App. 1 (2006); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In addition, the duty to assist the Veteran has also been satisfied in this case. The RO obtained the Veteran's service medical treatment records and identified VA and non-VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA examination was afforded for the service-connected lower back disorder in August 2006. The examination was based on review of the claims file, a history as reported by the Veteran, medical examination and clinical findings to include X-rays, motor and sensation examinations. As such, the examination report is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran requested a hearing before the Board and indicated in her April 2008 substantive appeal stated she would appear in Washington, D.C. to testify. A hearing was scheduled in July 2010 and notice was provided by letter dated in February 2010. The Veteran failed to report. There is no evidence that she or her representative have provided good cause for her failure to report. The Board finds it has met its duty to offer the opportunity to testify before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 493. Increased Evaluation Claim The Veteran's low back syndrome with levoscoliosis and thoracic osteophytosis is evaluated as 20 percent disabling prior to September 4, 2007 under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5237. A 20 percent evaluation contemplates lumbosacral strain, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and, a 100 percent disability rating is warranted for unfavorable ankylosis of entire spine. Id. The General Rating Formula directs that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to rated separately under an appropriate diagnostic code. Id at Note (1). As the General Rating Formula is identical for all diagnostic codes pertaining to the spine other than for degenerative disc disease, consideration of other relevant diagnostic codes pertaining to the spine is not required. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5236, 5237, 5238, 5239, 5240, 5241, 5242 (2009). Additionally, Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating IVDS, a 20 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent evaluation is assigned for intervertebral disc syndrome with 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 evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. Note (1). An August 2006 VA examination report shows the Veteran reported complaints of decreased range of motion, stiffness, weakness, spasm, and pain in her lower back. She described the pain as occurring in the hip and thoracic area and the onset of pain with activities such as bending, lifting and sitting. Pain occurred daily. Flare-ups occurred every three to four months and lasted one to two weeks during which she reported she was unable to straighten her back and walked with a stooped posture. She reported that during flare-ups her pain radiated into her hips, bilaterally. The examiner objective observed the Veteran to exhibit no spasm, atrophy or weakness on physical examination. Posture was observed to be normal and symmetrical. Gait was normal and the Veteran exhibited no abnormal spinal curvature. The examiner observed the Veteran to manifested guarding, pain on motion, and tenderness, but noted that such findings were not severe enough to cause abnormal gait or abnormal spinal countours. Motor function was measured at 5 of 5 in all extremities. Muscle tone was normal with not findings of muscle atrophy. Sensation was found to measure 2 of 2 to vibration, pinprick, light touch, and position sense. The examiner noted no findings of abnormal sensation. Reflexes were found to measure 2+, symmetrically, throughout and plantar (Babinski) was found to be normal. At its most limited and accounting for pain on motion, thoracolumbar spine motion was measured at zero to 50 degrees flexion, zero to 5 degrees extension, zero to 25 degrees right lateral flexion, zero to 20 degrees left lateral flexion, zero to 20 degrees right rotation, and zero to 10 degrees left rotation. Pain on repetitive motion was noted in flexion, extension, left lateral flexion and left rotation movements but the examiner noted that repetitive motion resulted in no additional limitation of motion. The examiner noted no vertebral fractures were part of the service-connected disability or claimed as such. Results of X-rays showed degenerative disc disease at L5-S1. The examiner diagnosed degenerative disk disease at L5-S1. A statement from the Veteran's private treating physician, received in September 2006 reflects that the Veteran had been seen for low back pain and sciatic irritation since December 2000. The physician indicated the Veteran had been seen more frequently for a problem with tortipelvis indicating her back had acquired more joint degeneration. Results of a private report of magnetic resonance imaging (MRI) conducted in December 2006 show a fairly large significant broad based right paracentral disc protrusion with thecal sac impingement and impingement of the nerve root as well at L5-S1. Lay witness statements received in September 2006 show observations by the witnesses that the Veteran experiences flareups in her back during which her movement is very restricted. When her back goes out, the witnesses stated, the Veteran was unable to walk standing straight up. She had experiences many episodes in the last six years and on one occasion walked hunched over for over two weeks. She saw the doctor four times or more in a two week period of time. Her pain was very noticeable and affected her ability to perform normal everyday tasks. VA treatment records show that the Veteran required emergency treatment for her back symptoms in November 2006 and August 2007. An entry dated in November 2006 shows findings of increased symptoms and an impression of lumbar radiculopathy. Muscle relaxants were prescribed in November 2006. In December 2006, medications were again changed. TENS and home exercises were prescribed in April 2007. Ultimately, she underwent microdiscectomy in September 2007. Based on the evidence above, the record does not support an evaluation in excess of 20 percent for the Veteran's low back syndrome with levoscoliosis and thoracic osteophytosis prior to September 4, 2007. Subjectively, the service-connected back disorder was manifested by pain and limited motion. Objectively, the service-connected intervertebral disc syndrome was manifested by forward flexion to 50 degrees forward flexion, 5 degrees extension, 25 degrees right lateral flexion, 20 degrees left lateral flexion, 20 degrees right rotation, and 10 degrees left rotation at its most restricted, with pain but no additional limitation of motion due to repetitive motion, but no findings of ankylosis or fractured vertebrae. An evaluation greater than 20 percent contemplates limitation of forward flexion to 30 degrees or less, or ankylosis of part or all of the spine. The objective manifestations of the Veteran's disability prior to September 4, 2007, clearly are not consistent with flexion to 30 degrees or less or ankylosis. The Veteran and her witnesses have reported periods of time when the Veteran has been limited by pain, but the medical evidence does not show, nor has the Veteran reported, that she has experienced incapacitating episodes of four weeks or greater requiring bed rest prescribed by a physician, for any period 12 month period prior to September 4, 2007. Thus, a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes in excess of 20 percent is not warranted. Under the General Rating Formula, any associated objective neurological abnormalities are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The August 2006 VA examination made no findings of motor weakness or sensory abnormalities. However, VA treatment records dated in December 2006 document complaints of pain radiating down the right lower extremity to the right foot with complaints of weakness in the right foot and numbness in the right lower extremity in January 2007. The January 2007 entry shows findings of decreased sensation in the right foot and straight leg raising positive at 20 degrees on the right as compared with negative on the left. In April 2007 strength was measured at 4+ of 5 in right knee extension and 4 of 5 in back extensor strength. Straight leg raising was positive at 35 degrees on the right as compared to 60 degrees on the left. Decreased hamstring flexion was also found, and sensation was found to be diminished on the dorsum of the right foot. The physician assessed sensory loss consistent with lumbar disc dysfunction. It is noted that the Veteran underwent VA neurological examination in April 2008. The Veteran reported symptoms of right leg numbness and pain and objectively observed manifestations of nerve damage to the peripheral nerves in the right leg. Electromyograph studies (EMG) were completed and showed residual findings from previous right S1 radiculopathy with no active neurogenic process. The examiner diagnosed nerve damage of the right leg and opined that the condition was due to pathology from the Veteran's back. Given that the symptoms described by the Veteran in 2008 are similar to those described in 2006 and 2007, and that the examiner medically attributed these symptoms to residuals of right S1 radiculopathy, arising from the service-connected back pathology, it would be illogical to determine that the symptoms of pain, numbness and weakness the Veteran complained and that were manifested prior to the September 2007 were not part and parcel of the same disability picture-albeit prior to September 2007, manifestations were observed to affect the right foot and hamstrings. Resolving all doubt in the Veteran's benefit, the Board finds that the findings of weakness in right knee extension, decreased hamstring flexion, and diminished sensation in the right foot approximate impairment of the sciatic nerve, contemplated under Diagnostic Code 8526. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation and contemplates the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or, very rarely, lost. A 60 percent evaluation is warranted for incomplete severe paralysis with marked muscular atrophy. A 40 percent evaluation is contemplated for moderately severe incomplete paralysis. A 20 percent evaluation is warranted for moderate incomplete paralysis. A 10 percent evaluation is warranted for mild incomplete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2009). With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a. Accordingly, a separate 10 percent evaluation for mild incomplete sciatic nerve paralysis in the right lower extremity is appropriate under 38 C.F.R. § 4.124a, Diagnostic Code 8620 prior to September 4, 2007. The Board finds the assignment of a separate, compensable evaluation is appropriate despite the lack of clinical neurological findings in the right lower extremity. This is so because the Veteran's documented complaints of numbness and weakness were objectively observed by her treating VA health care providers and establish symptomatology of a mild degree prior, and culminating in the need for, her surgery in September 2007. 38 C.F.R. § 4.124a. An evaluation greater than 10 percent is not warranted. The medical evidence shows no findings of muscle atrophy or complete paralysis. There are no findings of foot drop, and active movement, while shown in April 2007 to be weakened, was not shown to be impossible for muscles below the knee including the foot. Accordingly, a separate rating in excess of 10 percent for mild incomplete paralysis of the sciatic nerve associated with the service-connected lower back disability is not warranted. No other neurological manifestations have been reported or observed. Rather, the Veteran has denied impairment of bowel or bladder functions during this time period. In considering the Veteran's claim, the Board has also considered whether referral for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (2009) is appropriate. An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service- connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008) (aff'd, 572 F.3d 1366 (2009). If there is an exceptional or unusual disability picture, the Board must then consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, supra. The Board observes that the Veteran's back disability has impacted her in an occupational setting. However, the record does not show that the disability resulted in frequent periods of hospitalization during the period prior to September 4, 2007. On the contrary during her August 2006 examination, she noted that she was fulltime and had lost only 1 week during the previous 12 months. Of that week, 2 days were due to her back and 3 days were due to a viral infection. The schedular evaluations in this case are not inadequate. As demonstrated by the evidence of record, the Veteran's low back syndrome with levoscoliosis and thoracic osteophytosis results in a 20 percent evaluation from prior to September 4, 2007. The Veteran's mild incomplete paralysis of the sciatic nerve of the right lower extremity results in a 10 percent evaluation prior to September 4, 2007. These findings are based on subjective and objective observations of the Veteran's symptomatology. The Veteran's service-connected low back syndrome with levoscoliosis and thoracic osteophytosis is evaluated as a musculoskeletal disability and a neurological disability, the criteria of which are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. See 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Code 5237 and 38 C.F.R. § 4.124a, Diagnostic Code 8620. When comparing the disability pictures discussed above with the symptoms contemplated by the Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 20 percent disability rating under Diagnostic Code 5237 and a 10 percent disability rating under Diagnostic Code 8620 prior to September 4, 2007. Ratings in excess of those assigned are provided for certain manifestations of the Veteran's service-connected low back disability, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for the current evaluations assigned reasonably describe the Veteran's disability level and symptomatology and, therefore, a schedular evaluation is adequate and no referral is required. See id; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). The assignment of different evaluations throughout the pendency of the Veteran's appeal as to all issues discussed has been considered. However, the medical evidence does not support staged evaluations in the present case other than those already assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board is cognizant of the ruling of the Court of Appeals for Veterans Claims in Rice v. Shinseki. 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the Veteran's low back disability rendered her totally unemployable during the period prior to September 4, 2007. Accordingly, the Board concludes that a claim for TDIU has not been raised. In making these determinations, and based on the discussion above, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent prior to September 4, 2007 for the service connected low back syndrome with levoscoliosis and thoracici osteophytosis; the benefit of the doubt does not apply; and an evaluation greater than 20 percent prior to September 4, 2007 for low back syndrome with levoscoliosis and thoracici osteophytosis is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence supports a 10 percent evaluation for mild incomplete paralysis of the sciatic nerve, right lower extremity; a preponderance of the evidence is against an evaluation greater than 10 percent for mild incomplete paralysis of the sciatic nerve, right lower extremity; the benefit of the doubt does not apply; and evaluation of 10 percent, and no greater, is warranted for mild incomplete paralysis of the sciatic nerve, right lower extremity. See Gilbert, supra.

ORDER An evaluation greater than 20 percent for low back syndrome with levoscoliosis and thoracic osteophytosis prior to September 4, 2007 is denied. A separate, 10 percent, and no greater, evaluation for mild incomplete paralysis of the sciatic nerve, right lower extremity, prior to September 4, 2007, is granted, subject to the laws and regulations governing the award of monetary benefits.

REMAND The Veteran seeks a higher evaluation for her low back syndrome with levoscoliosis and thoracic osteophytosis beginning November 1, 2007. The medical evidence demonstrates that she underwent microdiskectomy in September 2007 and was assigned a temporary total evaluation from September 4, 2007 to October 31, 2007. However, VA examination has not been conducted following this surgery and the most recent VA treatment records reflecting treatment for the service connected low back disorder are dated in November 2007. The supplemental statement of the case dated in October 2008 notes review of VA treatment records dated from November 2007 through September 2008, but these records does not appear to be present in the claims file. These records must be obtained and VA examination must be accorded the Veteran to determine the nature and extent of her low back disability following the September 2007 surgery. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [a thorough and contemporaneous medical examination is required when the record does not adequately reveal the current state of the claimant's disability]. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should ensure that it has obtained the names and addresses of all medical care providers, both VA and private, who have treated the veteran for her back disability since September 2007. After securing the necessary release, the RO should obtain these records. In particular, the RO or AMC must obtain any and all records of treatment accorded the Veteran at the VA Medical Center (VAMC) in Saginaw, Michigan, Ann Arbor, Michigan and any VAMC the Veteran may identify from September 2007 to the present. 2. Thereafter, the RO or AMC should schedule the Veteran for VA examinations to determine the nature and extent of her low back disability. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner(s) in conjunction with the examination(s). All reported symptoms and observed pathology attributed to the low back disability, to include orthopedic, neurological, muscle, and skin pathology must be fully described. 3. After undertaking any other development deemed essential in addition to that specified above, readjudicate the Veteran's claims for entitlement to a higher evaluation for low back syndrome with levoscoliosis and thoracic osteophytosis beginning November 1, 2007 with application of all appropriate laws and regulations, including consideration of lay statements, and consideration of any additional information obtained as a result of this remand. If the benefits sought are not granted in full, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Thereafter, the appeal must be returned to the Board for appellate review. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Veteran need take no action until she is so informed. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised that failure to appear for VA examinations could result in the denial of her claims. 38 C.F.R. § 3.655 (2007). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. 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 Supp. 2009).

______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs