Citation Nr: 0006030 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-24 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from March 1968 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. FINDINGS OF FACT 1. In May 1990, the Board denied service connection for a back disorder on the basis that the evidence received since the prior Board denials in March 1978 and March 1983, did not establish a new factual basis showing that a back disorder was of service origin. 2. The evidence associated with the claims file subsequent to the May 1990 Board denial includes opinions offered by a VA examiner, A. M., M.D., a private physician, Nelson Colon, M.D., and the VA examiner in December 1998, bears directly and substantially upon the subject matter now under consideration (i.e., whether the appellant currently has a chronic low back disorder of service origin) and, when considered alone or together with all of the evidence, both old and new, has significant effect upon the facts previously considered. CONCLUSIONS OF LAW 1. The May 1990 Board decision, denying service connection for a back disorder is final. 38 U.S.C.A. §§ 511(a), 7103(a), 7104(a) (West 1991); 38 C.F.R. § 20.1100 (1999). 2. The evidence received since the Board's May 1990 decision is new and material, and the claim for service connection for a back disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence The claim for service connection for a back disorder was originally denied by the Board in a decision dated in March 1978. That decision was predicated on findings that while the veteran was shown to have sustained a back injury during service, no back disorder was noted upon separation from service. Therefore, his inservice back strain was determined to have been acute and subsided without residual disability. Thereafter, the Board entered separate decisions dated in March 1983 and May 1990 which determined that the evidence received since the prior Board denial did not establish a new factual basis for allowing the claim for service connection for a back disorder. "If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim." 38 U.S.C.A. § 5108. Except as provided by 38 U.S.C.A. § 5108, when the Board disallows a claim, it may not thereafter be reopened and allowed, and no claim based on the same factual basis shall be considered. 38 U.S.C.A. § 7104(b) (West 1991). When a claimant seeks to reopen a claim after an appellate decision and submits evidence in support of that claim, a determination must be made as to whether this evidence is new and material and, if it is whether it provides a new factual basis for allowing the claim. 38 C.F.R. § 20.1105; see also 38 U.S.C.A. §§ 5108, 7104. Therefore, once a BVA decision becomes final under section 7104(b), "the Board does not have the jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). "New and material evidence" is defined by regulation as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. 38 C.F.R. § 3.156(a) (1999). With regard to petitions to reopen previously and finally disallowed claim, the Board must conduct a two-step analysis. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, the Board must determine if the evidence submitted by the claimant is new and material. Id. Second, if the Board determines that the claimant has produced new and material evidence, it must reopen the claim and evaluate the merits of the claim in light of all of the evidence, both old and new. Manio, supra. The United States Court of Appeals for the Federal Circuit has entered a decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) concerning the definition of the term "new and material evidence" found in 38 U.S.C.A. § 5108 (West 1991). In that determination, the Court of Appeals for the Federal Circuit held that the United States Court of Appeals for Veterans Claims (Court) in Colvin v. Derwinski, 1 Vet. App. 171 (1991), had "overstepped its judicial authority" by adopting a social security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [VA] regulation." Hodge, 155 F.3d at 1364. The Court of Appeals for the Federal Circuit further held that the Court's "legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened" as to what constitutes "material evidence" Id. at 1363, and remanded the case for review under the Secretary's regulatory definition of "new and material evidence." In Hodge, Court of Appeals for the Federal Circuit found that the definition of "new and material evidence" applied by the Court under Colvin was as follows: Evidence is 'new and material' if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and if it is 'new' and 'probative' (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record. Hodge, 155 F.3d at 1359 (hereafter Colvin definition). The Court of Appeals for the Federal Circuit found that part (iii) imposed a higher burden on claimants than the VA regulatory definition because it: . . . specifically focuses on the likely impact the new evidence submitted will have on the outcome of the veteran's claim; it requires that 'there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome.' (citations omitted). Id. at 1361. Citing the regulatory history, the Court of Appeals of the Federal Circuit held that: . . . the purpose behind the [VA] definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. at 1363. Subsequent to Hodge, the United States Court of Appeals for Veterans Claims (Court), in Elkins v. West, 12 Vet. App. 209 (1999), announced a three-step analysis to apply in determining whether to reopen previously and finally denied claims. Under the Elkins test, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based upon all the evidence of record in support of the claim, the claim as reopened (as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a) (1991). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. In Winters v. West, 12 Vet. App. 203 (1999), the Court held that even assuming the Board had committed error in refusing to reopen a claim by application of the now invalid Colvin test of materiality, such error would not be prejudicial if it is clear on the record that claim would not be well grounded. In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court further concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, that should end the Board's analysis as to whether the evidence is "new and material." Accordingly, if the evidence is not new, it is not necessary to go on and determine whether it is material, and thus any error arising from the application of the now invalid Colvin test of materiality would be harmless and a remand for readjudication consistent with Hodge would not be warranted. The Court has further held that in determining if the veteran has presented new and material evidence, the Board must consider the evidence submitted since the most recent decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Hence to determine if new and material evidence has been submitted, the Board must consider the evidence received with regard to the issue of entitlement to service connection for a back disorder since the May 1990 decision. Considering first the issue of whether the veteran has submitted new and material evidence with regard to the issue of entitlement to service connection for a back disorder, the Board notes that the veteran submitted duplicate copies of medical treatment he received in service and subsequent to discharge for a back disorder. As these records were of record at the time of the Board decisions in 1978 and 1983, by definition, they may not be considered new. Not previously considered by the Board were reports of treatment at a VA facility in 1991 and 1992. The veteran was hospitalized from August 26, 1991, to September 9, 1991, for psychiatric complaints and back pain. Following treatment that included therapy, he was able to return to work. In March 1992, he complained of low back pain for the past 23 years. It was noted that the veteran had degenerative joint disease (DJD) of the back and left L5 radiculopathy and a herniated nucleus pulposus. Additional VA records include a computerized tomography (CT) scan from July 1993 which showed bulging of the disc at L3-L4; osteophytes at L4-L5 on the right side; vacuum phenomenon at L5-S1; and intervertebral foramen obliteration at L4-L5 and L5-S1. Magnetic resonance imaging (MRI) of the lumbar spine from July 1993 was interpreted as showing DJD and narrowing the intervertebral disc spaces at the level of L3-4, L4-5, and L5-S1 without thecal sac deformity. VA examination in September 1993 resulted in diagnoses of degenerative disc spaces with disease at L3 to L5 with narrow disc spaces, and radiculopathy - nerve root irritation. Added to the record in 1994 were statements by a fellow serviceman and the veteran's daughter. The serviceman asserted that he recalled that the veteran injured his back during service. While he was treated during service for his back complaints, no X-rays were taken. The veteran's daughter noted that her father's condition had continuously deteriorated over the years. At a May 1995 hearing, the veteran and his daughter testified in support of his claim. The veteran contended that he hurt his back in service while removing wall lockers and was placed on light duty. A private physician saw him in 1971 and again in 1987. He said that he worked in the post office for 22 years, but had poor attendance due to physical problems. He did not realize until 1977 that he could apply for benefits. He reported treatment by VA beginning in 1987. The veteran's daughter recalled that her father had a bad back in the early 1970s. Also submitted at the hearing was a duplicate of the fellow serviceman's statement as summarized above. In an August 1995 VA examination report, it was noted that the veteran had been seen since 1988 for lower back pain which radiated to both buttocks and the right leg. It was noted that he gave a history of having initially hurt his back in 1968 and having had episodes of lower back pain off and on since 1970. Testing from 1990 to the date of this report showed DJD, spur formation, disc bulging at L3, 4 and L4, 5, and narrowing of various neural foramina. In an August 1995 statement, a private chiropractor, Serafin Izquierdo, D.C., noted that the current diagnoses were sciatic neuritis and lumbosacral strain, sprain. In a September 1995 statement, Nicholas Walsh, M.D., a psychiatrist, indicated that the veteran had many psychiatric problems that he attributed to his "complicating physical illness and the long, harrowing challenge for him to receive appropriate benefits." A statement by a VA physician, A. M., M.D., from August 1995 related a history of the veteran being treated since October 1988 to that date. Additional VA and private records through 1995 showed continued treatment for back problems, as well as other ailments. In a January 1997 statement, Dr. M. stated that spine disease and arthritis were most often the result of the accumulation of previous, repetitive, smaller injuries, and he opined that a connection of partial cause-effect could be made between the appellant's initial injury sustained while in service and his present condition. In a February 1997 statement, Nelson Colon, M.D., opined that there was a causal relationship between the inservice accident and the appellant's present impairment and disability. Upon VA examination in December 1998, the veteran's medical history was noted to include an inservice back injury and a postservice work injury in 1974. While an X-ray in 1982 was interpreted as normal, he ultimately developed severe low back pain with radiation to the central lower extremities in 1987. It was also noted that previous X-rays in 1977 had shown mild disc narrowing at L5, S1 and mild rotator scoliosis. He had received physiotherapy from 1987 to the present time. It was also noted that his condition was diagnosed as chronic fibromyalgia pain syndrome. The examiner indicated that he reviewed lumbar spine CT scans in 1987, 1995, and a MRI in 1993. X-rays from December 1998 showed advance degenerative disc disease (DDD) with marked narrowing of disc space at last 3 lumbar vertebrae. There was also impingement of the intervertebral foramina bilaterally at L3-4. The examiner's final diagnoses included chronic low back pain, lumbar strain, recurrence of lumbar strain, chronic and severe DDD, L-3 to S-1 and degenerative changes at intervertebral foramina, and chronic fibromyalgia pain syndrome. The examiner noted that he reviewed the claims folder and all medical opinions of record. The examiner cited Dr. M.'s and Dr. Colon's opinions specifically. It was this examiner's opinion that there was no causal relationship between the veteran's current low back disability and inservice back injury. The examiner added that postservice injury to the back at the post office in 1974 had not been mentioned by Drs. M. and Colon. At present, the veteran showed extreme pain in the low back that could not be supported by clinical findings. The apparent sensory deficit demonstrated on the examination of the left lower extremity was not consistent with peripheral neuropathy or lumbosacral plexopathy. There was no muscle weakness or atrophy in the lower extremities, but he did show multiple trigger points in the paraspinal area, scapula region, buttocks, hips, knees, and ankles bilaterally, with associated other symptoms such as fatigue, headaches, loss of concentration, sleep disturbance, and depression which was compatible with fibromyositis. It was noted that the veteran had been treated in the rehabilitation department from 1989 until recently with the diagnosis of chronic fibromyositis. The physician stated that there was no documentation "in the literature" that the etiology of chronic fibromyalgia pain syndrome was due to either single or repeated episodes of trauma. He added that it was a fact that the majority of patients with chronic low back pain with multiple trigger points had a history of mild trauma, however, it was not a causal relationship. In conclusion, the examiner opined that it was not likely that the veteran's current back condition, fibromyalgia, was the result of a lumbosacral strain suffered in service. At a November 1999 personal hearing, the veteran and his daughter reiterated their contention that the veteran's current back problems were the result of an inservice back injury. It was also asserted that the December 1998 VA examination was inadequate. It was argued that the opinions in favor of the veteran's claim were provided by specialists whose opinions should be viewed as more probative. The Board has reviewed the above summarized evidence submitted since the May 1990 decision and has determined that some of this additional evidence is both "new" and "material." As pointed out earlier, however, duplicates copies of medical treatment the appellant received in service and subsequent to discharge for a back disorder, by definition, are not considered new. Turning to the evidence which had not been previously submitted, the Board concludes that much of this evidence is not so significant that it must be considered in order to fairly decide the merits of the claim. For example, records reflecting continuing postservice back treatment from 1991 to the present day are not considered so significant that they must be considered in order to fairly decide the merits of the claim. In this regard, the Board notes that this evidence relates to treatment of the veteran's back disorder and does not discuss the etiology of the back disorder, particularly as to whether the back problems originated in service. As such, these records are merely cumulative and redundant, and have no significant effect upon the facts previously considered. As a consequence, they are not "new and material" as contemplated by 38 C.F.R. § 3.156(a), and provide no basis to reopen the veteran's claim of entitlement to service connection for a back disorder. See 38 U.S.C.A. § 5108 (West 1991). Lay statements as to inservice back problems and continuity of symptoms ever since as provided by a fellow serviceman and his daughter are noted. While they and the veteran's assertions are competent to provide an account of the events and symptoms experienced during service and thereafter, these individual are not shown to be qualified to offer evidence that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As previously stated, "new and material" evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of a claim. 38 C.F.R. § 3.156. The Board finds that there has been evidence submitted since May 1990 that does bear directly and substantially on the issue of whether the appellant current has a back disorder of service origin. For example, the physician's statements of record that offer opinions on the etiology of the veteran's current back problems are deemed to be new and material evidence. It is the Board's conclusion that the opinions offered by Drs. M. and Colon represent new and material evidence to reopen the claim for service connection for a chronic back disorder. Well Grounded Claim Having found that the appellant has submitted "new and material evidence," the threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded claim is "[a] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The Court has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Also controlling in this case are decisions of the Court concerning the types of evidence required to establish important facts. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu, supra. The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet. App. at 93. The basic framework of the law and regulations provides that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). In the case of DJD, service incurrence may be presumed if the disease is manifested to a compensable degree within one year of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). For a showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). In this case, there is evidence of current back disability, of back injury in service and of competent medical opinions linking the current back disability to service. Accordingly, all three elements of a well-grounded claim are satisfied with competent evidence and the claim is well grounded. ORDER New and material evidence has been submitted and the claim for service connection for a back disorder is reopened. Remand Before addressing the merits of the claim, the Board must first determine whether it would be prejudicial for the Board to address the claim on the merits in light of the procedural development by the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the diagnosed current back disorders include arthritis (degenerative joint disease). Unfortunately, the Board can not locate in the statements of the case of April 1993 and May 1995, or the supplemental statements of the case of April 1996 or May 1999, the provisions of the law and regulations governing the presumptive provisions of the law concerning arthritis (degenerative joint disease). Also the RO appears to have provided the regulatory provisions, but not the statutory provisions governing service connection on the basis of incurrence or aggravation. Accordingly, the case must be returned to the RO to correct this procedural defect. In addition to this requirement, the Board notes that in November 1999, the claimant submitted additional evidence. He waived consideration by the RO. This evidence includes a June 1999 report from T. D., M.D., containing an opinion that a current back disability is related to service. The additional evidence also includes a photocopy of POU Form 1997 (April 1969 Edition) reflecting entries dated between October 1970 and apparently May 1977. The entries from October 1970 to September 1973 run in sequence. The date stamp for what appears to be May 1977 actually appears above the entry for October 1970. There are notations on the form that appear across from the May 1977 entry that read "Walks [with] cane, Back Pain (Claims from armed service Vet. Hosp 1968)." There is also a notation of what appears as an editing "carrot" and connecting lines apparently intended to show this entry is associated with the October 1970 entry. The rest of the entry across from the October 1970 entry bears no relationship to the reference to a back disability. The editing "carrot" and lines may possibly also show the notation appearing directly across from the May 1977 date stamp of "* occasional extra systole" were intended to be associated with the October 1970 entry. There is an additional notation marked over the pre-printed headings on the form where the block for "vet" appears. This notation is "Army 1968 discharge 1970 (circled)" with a line connecting this notation to the words "Back pain" in the notation described above. There is also within the headings in this area what appears to be evidence of "whiting out." The ink and style of the writing for the insertions appear on their face to not match the October 1970 entry. Insofar as there appears to be an entry referring to VA hospital treatment in 1968, the veteran's original claim in 1977 made no reference to VA care and his testimony in May 1995 was that his first VA treatment was in 1987. It is obvious that the original or a better copy of this document may assist in both the interpretation of the document and possibly in ascertaining its authenticity. Accordingly, the Board finds that further development is required with respect to these matters in order to comply with the duty to assist: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should take appropriate action to obtain from the veteran's former employer the original, or a certified copy of, the document from which the photocopy was made that was submitted in November 1999 of the POU Form 1997 (April 1969 Edition) reflecting entries dated between October 1970 and apparently May 1977. The veteran should provide any necessary assistance in obtaining these documents. If the original or a certified copy of the document can not be obtained from the employer, the RO should take necessary action to obtain the original document in the veteran's possession. In that event, the veteran, of course, must be left with a copy of the document. The Board must point out that the Court has held that while the duty to assist is neither optional nor discretionary (See Littke v. Derwinski, 1 Vet. App. 90, 92 (1991)), the duty is not always a one-way street; nor is it a "blind alley." Olson v. Principi, 3 Vet. App. 480, 483 (1992). "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the veteran only in a passive role." Gober v. Derwinski, 2 Vet. App. 470, 472 (1992) (citations omitted). In this case, it is particularly important that the claimant cooperate in providing any necessary release in order for VA to obtain the necessary records. Failure to cooperate may have adverse consequences. 3. The veteran should be requested to provide a statement concerning the date and place of the reported 1968 treatment at a VA hospital apparently reflected on the photocopy submitted in November 1999 of the POU Form 1997 (April 1969 Edition) reflecting entries dated between October 1970 and apparently May 1977. The RO should then review the statement and, if the veteran affirms such care was provided, determine whether a request has been made to the VA facility to obtain the records of such reported treatment. 4. The RO, with any necessary assistance of the veteran, should request that Dr. Cestero provide copies of his original treatment records, including specifically those dated between March and April 1971, including any X-ray films. 5. Following the above development, if additional medical records are obtained, the RO should refer them back to the VA physician who provided the opinion in 1998. That physician should be requested to indicate whether the additional records would warrant any change in his opinion. If that physician is no longer available, and additional medical records have been obtained, then the RO should take appropriate action to obtain an opinion from another suitably qualified physician. If that physician believes an examination of the claimant is required to formulate an opinion, appropriate action should be taken to obtain the examination. It is essential that the veteran cooperates in this development action, and a failure to cooperate may have adverse consequences. 6. Following the above, the RO should assure that all of the development actions have been completed to the extent feasible. Thereafter, the RO should readjudicate the claim. If the determination remains adverse, the veteran and his representative should be provided with a supplemental statement of the case that contains all pertinent law and regulations, including specifically the statutory and regulatory provisions governing incurrence and aggravation and those that pertain to presumptive service connection for arthritis (degenerative joint disease). Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. 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. Richard B. Frank Member, Board of Veterans' Appeals