Citation Nr: 0004358 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 94-47 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease with narrowing of the joint space with limitation of motion of the right shoulder (right shoulder disability), currently evaluated as 30 percent disabling. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for left shoulder disability, to include as secondary to his service-connected right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from September 1965 to October 1967, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In a December 1993 rating decision, the RO proposed to reduce the evaluation of the veteran's service- connected right shoulder disability from 30 percent to 20 percent. The veteran expressed disagreement with this rating action; however, in August 1994, the RO implemented the reduction, effective July 20, 1994. The veteran perfected thereafter appeals with respect to the reduction of the evaluation as well as to the RO's denial of his claim for an increased rating for his right shoulder disability. However, in November 1996, the RO restored the 30 percent rating, effective February 29, 1984, and as such, the veteran's perfected appeal of the reduction issue is moot. In a separate December 1993 rating decision, the RO denied the veteran's claim for service connection for left shoulder disability as secondary to his service-connected right shoulder disability on the basis that he had not submitted new and material evidence sufficient to reopen a claim for this benefit. The veteran has also timely appealed this determination to the Board. During the course of this appeal, the veteran asserted, and several examiners indicated, that he might be unable to continue working as a result of his service-connected right shoulder disability. As such, the record raises a claim of entitlement to total disability rating based on individual unemployability due to service-connected disabilities. In addition, a review of the claims folder reveals that the veteran has contended that service connection is warranted for neck and back disabilities, essentially on the basis that each of these disabilities are related to his service-connected right shoulder disability. To date, none of these claims has been adjudicated, and they are referred to the RO for appropriate action. In July 1995, the veteran requested that he be afforded a hearing before a Member of the Board in Washington, DC. In August 1999, the veteran was notified that the hearing was scheduled to take place in October 1999. Although the hearing notice was not returned as undeliverable, the veteran failed to report for the hearing. Since that time, there is no indication in the record that the veteran has requested that the hearing be rescheduled, and in October 1999, his representative submitted an Informal Hearing Presentation in support of his claims. Under the circumstances, the Board concludes that the veteran's request for a Board hearing is withdrawn. See 38 C.F.R. § 20.702 (1999). In October 1999, the veteran submitted, directly to the Board, pertinent private medical evidence, dated from December 1998 to September 1999. This evidence was accompanied by a waiver of RO consideration and will be considered by the Board in connection with the instant appeals. See 38 C.F.R. § 20.1304(c) (1999). In this regard, the Board observes that a review of the evidence shows that two physicians have indicated that the veteran should undergo total right shoulder replacement surgery. As such, in the event the veteran has or does undergo such surgery, the RO should take all appropriate action. The Board's decision on the veteran's claim of entitlement to an increased rating for his right shoulder disability is set forth below. However, his application to reopen a claim for service connection for left shoulder disability, to include as secondary to his right shoulder disability, is addressed in the REMAND following the ORDER portion of the DECISION, below. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran is right hand dominant; therefore, his right shoulder is his major upper extremity. 3. The veteran's right shoulder disability is manifested by limitation of right shoulder abduction and flexion to 30 degrees, limitation of internal and external rotation of the right arm to zero degrees, with objective evidence of weakness, significant right shoulder muscle atrophy and significant pain on all spheres of motion, resulting in a disability picture comparable to limitation of right shoulder abduction and flexion to 25 degrees from the side; however, there is no evidence of right shoulder ankylosis or of fibrous union, nonunion or the loss of the head of the humerus. CONCLUSION OF LAW The criteria for a 40 percent evaluation for right shoulder disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5200, 5201, 5202, 5203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background In an August 1982 rating decision, the RO established service connection for degenerative joint disease with narrowing of the joint space with limitation of motion of the right shoulder and assigned a 20 percent evaluation under Diagnostic Code 5201, effective April 24, 1980. In January 1985, the RO increased the evaluation of the disability to 30 percent under the same diagnostic code, effective February 29, 1984. In several subsequent rating actions, the RO confirmed and continued the 30 percent evaluation. In July 1993, the veteran filed his current claim for an increased rating for this disability. As discussed in the introduction to this decision, in December 1993, the RO proposed to reduce the evaluation of this disability to 20 percent, and in August 1994, implemented that reduction, effective July 20, 1994. However, in November 1996, the RO restored the current 30 percent rating, effective February 29, 1984. VA outpatient treatment records dated in July 1993 show that the veteran was seen for right shoulder pain, weakness, tenderness and limitation of right arm motion. An X-ray taken later that same month revealed severe degenerative changes with humeral head flattening. In September 1993, the veteran was afforded a VA orthopedic examination. During the examination, the veteran provided a history of having chronic right shoulder pain. Range of motion studies revealed that the veteran had limitation of right shoulder abduction and flexion to 80 degrees, as well as limitation of internal and external rotation to 30 degrees. The physician noted the July 1993 X-ray findings and diagnosed the veteran as having degenerative joint disease of the right shoulder. In March 1994, the veteran was evaluated to determine his suitability for physical therapy. The examination revealed that the veteran had restricted range of right shoulder motion with progressive weakness. The examiner reported that the veteran had difficulty putting on his clothes and with "basically some ADL (activities of daily living) activities." In addition, the physician stated that, as a result of the disability, the veteran experienced employment difficulties. Range of motion studies revealed that the veteran had limitation of right shoulder flexion and abduction to "mainly 90 degrees, or about 100 degrees." In addition, the physician reported that the veteran exhibited "a lot of pain throughout the range." The examiner also indicated that there was generalized weakness of the proximal muscles. In June 1994, the veteran testified at a hearing held before a hearing officer at the RO. During the hearing, the veteran reported that he had significant limitation of motion of right arm motion due to severe pain. He further testified that his right shoulder disability was productive of numbness, weakness and swelling. In addition, the veteran noted that he was employed as a truck driver, and stated that, as a result of the disability, toward the end of each day, he was forced to operate the manual gearshifts with his left rather than his right hand. Further, he reported that he was receiving all his medical care at the VA Medical Centers in Butler, Pennsylania, and Cleveland, Ohio. The veteran was afforded another VA orthopedic examination in July 1994. During the examination, he reiterated his history of chronic right shoulder disability and complained of having constant right shoulder pain and corresponding functional impairment. The physician reported that the veteran had atrophy of the right superior trapezius, bicep and deltoid muscles with a flattening of the deltoid aspect. Range of motion studies disclosed that the veteran had limitation of right shoulder abduction and flexion to 90 degrees, external rotation to 20 degrees and internal rotation to zero degrees. X-rays showed marked decrease of the joint space of the right shoulder with deformity of the humeral head and osteophytes of the glenoid rim and humeral head. In addition, no acute bony abnormalities were noted. The impression of the radiologist was severe old traumatic or degenerative changes that had markedly progressed since 1990. The examiner diagnosed the veteran as having degenerative joint disease of the right shoulder that had markedly increased since 1990. VA outpatient treatment records, dated from April to September 1994, show that the veteran for various complaints relating to his right shoulder disability, including pain, weakness, numbness and paresthesia. In addition, a September 1994 entry reflects that range of motion studies disclosed that the veteran had "active" right shoulder abduction to 80 degrees, flexion to 90 degrees, external rotation to 30 degrees and internal rotation to zero degrees. The September 1994 examiner diagnosed him as having severe degenerative joint disease of the right shoulder, and recommended that he continue to treat the disability with nonsteroidal anti- inflammatory drugs (NSAIDs) and Tylenol. In addition, he noted that he had discussed the option of having total right shoulder replacement surgery with the veteran. In April 1996, the veteran was afforded a second hearing before RO personnel. During the hearing, the veteran reiterated his contention that a higher rating was warranted because the disability was productive of severe pain and industrial impairment. In this regard, he again reported that he was often forced to operate the manual gearshifts with his left rather than his right hand. Further, he stated that he had to "shift his whole body" in order to do so. In addition, he testified that he had not worked since November 1995, but explained that that was because he was seasonally employed as a truck driver, implying that he was planning to return to work soon. The veteran further stated that his employment was not in jeopardy due to his right shoulder disability only because he had not reported the severity of the disability to his employer. In addition, he testified that the disability had recently worsened and requested that he be afforded a new VA examination. In compliance with the veteran's request, in May 1996 he was afforded VA "Joints" and "Bones" examinations. Both examinations were performed by the physician who performed the July 1994 VA orthopedic examination, and they were conducted on the same day. During the "Joints" examination, the veteran reiterated his complaints regarding the industrial impact of his right shoulder disability. The physician indicated that the veteran had "advanced restrictive movements" in his right shoulder. With respect to the veteran's right shoulder deformities, the examiner reported that they were the same as he had reported in his July 1994 VA examination report. Range of motion studies revealed that the veteran had limitation of right shoulder abduction and flexion to 30 degrees, and that his internal and external rotation were limited to zero degrees. X-ray study showed severe narrowing of the joint space, with mild to moderate acromioclavicular joint spurring. The diagnosis was severe osteoarthritis of the right shoulder. The "Bones" examination report reflects the veteran's history of injuring his right shoulder prior to service, undergoing surgical repair of the disability at that time, and thereafter reinjuring the disability while serving in Vietnam. The report indicates that the veteran reported right shoulder pathology consistent with that noted above, and added that he had essentially no range of right shoulder motion. The examiner reported that the veteran's right shoulder scars were not tender to palpation. In addition, he stated that there was a flattening of the deltoid muscle and atrophy of the superior right trapezius, triceps and bicep muscles. In addition, he indicated that the veteran's range of right shoulder motion was "severely restricted," and that he objectively exhibited pain along the right scapula posteriorly. X-rays showed humeral head degeneration. The diagnosis was "status post surgical repair of the right shoulder as a teen." In December 1997, a VA physician reviewed the veteran's claims folder in response to his application to reopen his claim for service connection for right shoulder disability. The veteran was not examined, and no findings or conclusions with respect to his right shoulder disability were reported. In addition, as noted in the introduction to this decision, in October 1999, the veteran submitted pertinent private medical evidence in support of this claim that were accompanied by a waiver of initial RO consideration. In a January 1999 report, Daniel V. Corso, a licensed physical therapist, noted the veteran's right shoulder complaints and indicted that the veteran's short-term goal was to reduce his right shoulder pain and that, in the long term, he hoped to improve his functional abilities. Mr. Corso reported that to achieve these results he would administer moist heat, ultrasound, message and traction. No right shoulder findings were reported. In a July 1999 report, Dr. John F. Steele, an orthopedist, indicated that the veteran reported having a long history of right shoulder disability and that he had described the pain as "continuous and achy," with intermittent sharp pain. The examination disclosed that the veteran had pain with range of motion and that his right shoulder flexion and abduction were limited to 30 degrees. The diagnosis was severe osteoarthritis of the right shoulder. The examiner indicated that he had discussed the option of total right shoulder replacement surgery with the veteran. In addition, he noted that the veteran had recently filed a claim for disability benefits with the Social Security Administration (SSA). Finally, in a September 1999 report, Dr. Samuel I. Han indicated that the veteran was under his care for right shoulder problems, and that his examination of the veteran revealed that he was suffering from "end stage osteoarthritis." In addition, he noted Dr. Steele's suggestion that the veteran undergo total right shoulder replacement surgery. In numerous statements, the veteran essentially echoed the contentions that he voiced at the June 1994 and April 1996 personal hearings and asserted entitlement to an increased rating based on his continuing complaints of pain and functional impairment. In addition, in a July 1995 statement, he argued that, in the event that a higher evaluation for his right shoulder disability, then evaluated as 20 percent disabling, was not warranted based on the criteria contained in the Rating Schedule, VA should consider entitlement to an increased rating on an extraschedular basis. In addition, in written argument, the veteran's representative, citing DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. § 4.40, 4.45 and 4.59, essentially echoed the veteran's contentions. Analysis As a preliminary matter, the Board finds that the veteran's claim of entitlement to increased rating for his right shoulder disability is plausible and capable of substantiation and is therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service- connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. In this regard, the Board acknowledges that pertinent VA outpatient treatment records, as well as, potentially, records from the Social Security Administration, have not been associated with the claims folder. However, the pertinent evidence of record includes VA examination reports dated in September 1993, July 1994 and May 1996; a March 1994 evaluation conducted to determine the veteran's suitability for physical therapy; transcripts of the veteran's June 1994 and April 1996 hearing testimony; VA outpatient treatment records dated from July 1993 to September 1994; pertinent private treatment records, dated from January to September 1999; written argument by his accredited representative; and numerous statements submitted by the veteran in support of this claim. Moreover, in light of this decision, in which the Board has determined that the veteran's service-connected right shoulder disability warrants the maximum schedular evaluation under the Rating Schedule based on limitation of right arm motion, the Board finds that the veteran is not prejudiced by its review of the claim on the basis of the current record. See Allday v. Brown, 7 Vet. App. 517, 530 (1995) (the duty to assist does not extend to seeking records that would make no difference in the outcome of this appeal). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 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; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, as pointed out by the veteran's representative, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 204-7. The veteran's right shoulder disability is currently evaluated as 30 percent disabling pursuant to 38 C.F.R. §4.71a, Diagnostic Code 5201. This code provides that a 30 percent evaluation is warranted for limitation of motion of the major (right) arm midway between the side and shoulder level. A 40 percent evaluation under this code requires motion of the major (right) arm be limited to 25 degrees from the side. After a careful review of the record, the Board finds that the evidence supports a grant of a 40 percent evaluation for the veteran's right shoulder disability. In reaching this determination, the Board notes that the objective medical evidence demonstrates that the veteran's right shoulder flexion and abduction are limited to 30 degrees, and has been limited to that extent for several years. In addition, his internal and external rotation have been shown to be limited to zero degrees. As such, the disability most closely approximates the criteria for a 40 percent rating under Diagnostic Code 5201. Moreover, because VA and private physician have indicated that even these findings were accomplished with significant pain, the Board finds that the disability is comparable to limitation of right shoulder flexion and abduction to 25 degrees from the side. This is especially so as the veteran likely experiences additional functional loss during flare-ups beyond that which has objectively been shown. Moreover, the evidence shows that the disability is manifested by weakness, which is most clearly reflected in the numerous findings of significant atrophy of the veteran's right shoulder muscles, and that has been objectively reported since March 1994. In reaching this determination, the Board further observes that, in March 1994, a VA examiner noted that, as a result of the veteran's pain, weakness and limitation of motion, he had difficulty redressing himself and performing many activities of daily living. In addition, the July 1994 VA examination report reflects that the disability had "markedly increased" since 1990. Further, in September 1994, a VA physician recommended that he continue to treat the disability with NSAIDs discussed the option of having total right shoulder replacement surgery. The July and September 1999 private medical reports show that this surgery remains the recommended course of treatment. In addition, these findings are fully consistent with the symptoms reported by the veteran in his numerous lay statements and in his sworn hearing testimony, which the Board finds credible. See Evans v. West, 12 Vet. App. 22, 30 (1998); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the criteria for a 40 percent evaluation under Diagnostic Code 5201 are met. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 204-7. A disability rating in excess of 40 percent, however, is not warranted. In this regard, the Board notes that, in the absence of evidence of, or of disability comparable to, ankylosis, Diagnostic Code 5200, which provides for a maximum evaluation of 50 for unfavorable ankylosis of the major upper extremity, is not applicable. In addition, although the X- ray evidence shows that the veteran's right shoulder disability is manifested by flattening and deformity of the humeral head, even if such were considered to be best characterized as "marked" deformity of the humerus, pursuant to Diagnostic Code 5202, the maximum schedular evaluation is 30 percent. Further, in the absence of any evidence or allegation of fibrous union, nonunion or the loss of the head of the humerus, further consideration of this disability under Diagnostic Code 5202 is not warranted. There are no other potentially applicable diagnostic codes under which to evaluate this disability. As a final point, the Board notes that the record does not establish that the schedular criteria are inadequate to evaluate the veteran's right shoulder disability so as to warrant assignment of an evaluation higher than 40 percent on an extra-schedular basis. In this regard, the Board notes, notwithstanding the veteran's stated fear that he would lose his employment as a result of his right shoulder disability, that there is no showing that the disability under consideration has resulted in marked interference with employment. In addition, there is no showing that the right shoulder disability has necessitated any, much less, frequent, periods of hospitalization, or that the disability has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence such factors, the Board finds that the criteria for submission for assignment of assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the law and regulations governing payment of monetary benefits, a 40 percent rating for right shoulder disability is granted. REMAND Also before the Board is the veteran's application to reopen a claim for service connection for left shoulder disability. As noted above, the RO interpreted the veteran's July 1993 statement, in which he specifically alleged that service connection for left shoulder disability was warranted solely on the ground that the disability was secondary to his service-connected right shoulder disability, as an application to reopen a claim for service connection for left shoulder disability as secondary to his right shoulder disability, and formally developed the claim on that basis only. However, the record shows that the veteran and his representative have subsequently also argued that direct service connection is warranted. The claims folder reveals that service connection for left shoulder disability was denied on a direct basis in April 1981 on the ground that the disability was not found on examination. Thereafter, in a September 1984 rating action, the RO denied the veteran's application to reopen his claim for service connection for this disability. In doing so, the RO essentially reasoned that there was no evidence connecting his current left shoulder disability to service connection. In addition, however, the RO also determined that his left shoulder disability was not secondary to his service- connected right shoulder disability. Consistent with the veteran's contentions, the service medical records show that the veteran received treatment on numerous occasions for left shoulder problems and was objectively noted to exhibit left shoulder pathology, including dislocation of the shoulder. In addition, he was diagnosed as having left shoulder subluxation. Moreover, at service separation, his left shoulder disability was noted. The veteran maintains that the disability has been chronic since that time. In addition, in numerous statements and in his June 1994 and April 1996 hearing testimony, the veteran reported that he was receiving treatment for his left shoulder disability at VA medical facilities in Butler, Pennsylvania, and Cleveland, Ohio. However, outpatient treatment records from the Butler, Pennsylania VA Medical Center (VAMC), dated subsequent to September 1994, have not been associated with the claims folder. Further, although these records indicate that the veteran was receiving treatment at the neurological clinic at the Cleveland, Ohio, VAMC, no recent outpatient treatment records from the latter facility have been associated with the claims folder. This is significant because all potentially relevant evidence should be associated with the claims file prior to the adjudication of the claim. Furthermore, records generated by VA facilities that may have an impact on the adjudication of a claim considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition, the record reflects that the veteran has recently filed a claim for disability benefits with the SSA. Further, the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims) (Court) has held that VA has a duty to inform the veteran of the evidence necessary to complete his application. See 38 U.S.C.A. § 5103 (1997); Graves v. Brown, 8 Vet. App. 522 (1995). In this case as in Graves, VA is on notice that relevant evidence in support of the veteran's application to reopen his claim for service connection for left shoulder disability is ostensibly available. Because the veteran's statements and testimony raise questions as to whether all relevant VA and private medical records have been associated with the claims folder, further development of this case is necessary. As a final point, in readjudicating this claim, the RO should be advised that, subsequent to its most recent consideration of this issue, in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Court expressly rejected the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim is set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991). In overturning this standard, the Federal Circuit held that there is no requirement that, in order to reopen a claim, that the new evidence, when viewed in the context of all the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. Instead, the Federal Circuit, reviewing the history of 38 C.F.R. § 3.156(a), including comments by the Secretary submitted at the time the regulation was proposed, concluded that the definition emphasized the importance of a complete record rather than a showing that the evidence would warrant a revision of a previous decision. See Id. at 1363. In light of the foregoing, the Board is REMANDING the case for the following actions: 1. The RO should obtain and associate with the claims file all outstanding records of treatment of the veteran. This should specifically include any outstanding records from the VA Medical Centers in Butler, Pennsylania, and Cleveland, Ohio; Butler Memorial Hospital; Dr. Samuel I. Han; Dr. John F. Steele, or any other examiner at Steele Orthopedic Centers; Daniel V. Corso, a physical therapist, or any other examiner at Preferred Physical Therapy, Inc; as well as from any other facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorization(s), should be enlisted, as needed. If any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. The RO should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the veteran and copies of the medical records that served as the basis for any such decision(s). 3. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Upon completion of the above development, and after undertaking any other development deemed warranted by the record, the RO should readjudicate the veteran's application to reopen a claim for service connection for left shoulder disability, to include as secondary to his service-connected right shoulder disability, on the basis of all pertinent evidence of record, and all pertinent legal authority, to specifically include the recent decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 5. If the benefit sought by the veteran continues to be denied, he and his representative must be furnished a Supplemental Statement of the Case (SSOC) and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals