Citation Nr: 0007900 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-00 566 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for status post fracture of the 4th and 5th knuckles of the right hand, currently evaluated as 10 percent disabling. 2. Whether new and material evidence has been presented to reopen a claim for service connection for chloracne related to exposure to Agent Orange. 3. Whether new and material evidence has been presented to reopen a claim for service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: D. T. Pulse WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from March 1970 to December 1971. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a November 1996 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veteran's Appeals prior to March 1, 1999) (hereinafter Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). During the course of considering this appeal, the Board undertook a determination of the status of the appellant's representation. Via a VA Form 22a dated February 11, 2000, the appellant designated as his agent the representative named in this case. The Board concludes from the submission of this document that the representation is in accordance with 38 C.F.R. § 20.605 (1999) and that the appellant is otherwise satisfied with his representation. FINDINGS OF FACT 1. Status post fracture of the 4th and 5th knuckles of the right hand is manifested by no more limitation of flexion than to within 4 cm. and 5 cm of the mid-palm. 2. Service connection for chloracne was denied in an October 1994 rating decision. The appellant did not appeal. 3. The evidence submitted in support of the petition to reopen the claim for service connection for chloracne is cumulative and does not bear directly and substantially on the matter in question. 4. Service connection for post-traumatic stress disorder was denied in August 1993, October 1993 and October 1994. The appellant did not perfect an appeal as to these rating decisions. 5. The evidence submitted in support of the petition to reopen the claim for service connection for post-traumatic stress disorder included photographs that the appellant alleged he had taken. These are relevant on the issue of whether there are verified inservice stressors that might be attributed to post-traumatic stress disorder. 6. Competent evidence of post-traumatic stress disorder due to service in Vietnam has been submitted. CONCLUSIONS OF LAW 1. Status post fracture of the 4th and 5th knuckles of the right hand is no more than 10 percent disabling. 38 U.S.C.A. § 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5223 (1999). 2. The October 1994 rating decision denying service connection for chloracne is final. New and material evidence sufficient to reopen the claim has not been received. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). 3. The October 1994 rating decision is final. New and material evidence sufficient to reopen the claim has been received. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. § 3.156, 20.200, 20.201, 20.302, 20.1103 (1999). 4. The claim for service connection for post-traumatic stress disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Service connection for status post fracture of the 4th and 5th knuckles was granted in July 1993 and a 10 percent rating was assigned. The appeal stems from a November 1996 rating decision that confirmed and continued the 10 percent evaluation. The claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on his contentions that the residuals of the fractured 4th and 5th knuckles are more disabling than currently evaluated. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The RO has met its duty to assist the appellant in the development of his claim. Under 38 U.S.C.A. § 5107 (West 1991). Records were obtained from the VA Medical Center and all identified private treatment sources. An RO hearing was held in June 1998 and a VA examination conducted in July 1998. The RO fulfilled any obligation under 38 C.F.R. § 3.103 (1999) during the course of the hearing by suggesting what evidence might necessary in order to grant the claim and offering the appellant 60 additional days to submit this evidence. Furthermore, there is no indication from the appellant or his representative that there is outstanding evidence which would be relevant to this claim. Disability evaluations are determined by the application of a schedule of rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While evaluation of a service-connected disability requires review of the appellant's medical history, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, although the Board has reviewed all the evidence of record, it finds that the most probative evidence is that which has been developed immediately prior to and during the pendency of the claim on appeal. When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant has testified that he has very little use of his 4th or 5th fingers or of any of them. It hurts all the way up. His representative argued that the evaluation should be higher since he cannot hold the cane he uses because he is blind in his right hand. The appellant is evaluated under Diagnostic Code 5223 for favorable ankylosis of multiple fingers. This rating code applies to favorable ankylosis or limited motion permitting flexion of the tips to within 2 inches (5.1 cm.) of the transverse fold of the palm. Limitation of motion of less than 1 inch (2.5 cm.) in either direction is not considered disabling. Diagnostic Code 5219 applies to unfavorable ankylosis or limited motion preventing flexion of the tips to within 2 inches (5.1 cm.) of the median transverse fold of the palm. When classifying the severity of ankylosis and limitation of motion of single digits and combinations of digits the following rules will be observed: (1) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, with either joint in extension or in extreme flexion, will be rated as amputation. (2) Ankylosis of both the metacarpophalangeal and proximal interphalangeal joints, even though each is individually in favorable position, will be rated as unfavorable ankylosis. (3) With only one joint of a digit ankylosed or limited in its motion, the determination will be made on the basis of whether motion is possible to within 2 inches of the median transverse fold of the palm; when so possible, the rating will be for favorable ankylosis, otherwise unfavorable. Diagnostic Code 5223 provides for rating where two digits of one hand are favorably ankylosed. When the ring and little finger are service connected, a 10 percent evaluation is assigned for either the major or the minor hand. Diagnostic Code 5219 provides for ratings when two digits of one hand are unfavorably ankylosed. When the ring and little finger are service connected, a 20 percent evaluation is assigned for either the major or minor hand. Combination of finger amputations at various levels, or of finger amputations with ankylosis or limitation of motion of the fingers will be rated on the basis of the grade of disability, i.e., amputation, unfavorable ankylosis, or favorable ankylosis, most representative of the levels or combinations. With an even number of fingers involved, and adjacent grades of disability, select the higher of the two grades. The Board has also considered the application of 38 C.F.R. § 4.40 and 4.45 when rating this disability. Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnson v. Brown, 9 Vet. App. 7, 10-11 (1996). In assessing the functional loss, if any, of a musculoskeletal disability, inquiry must be directed towards findings of less movement that normal; more movement than normal; weakened movement; excess fatigability; incoordination; and painful movement. Dr. J. M. evaluated the appellant in December 1995. The appellant complained of pain and stiffness in his right hand. On examination there was stiffness and tenderness in the right hand with decreased grip strength. There was decreased range of motion in the metacarpal phalangeal joints of the fingers. The rheumatoid arthritis test was negative. Post- traumatic arthritis in the right hand was diagnosed. September 1996 private medical records documented severely restricted range of motion in the right hand and fingers. He was said to be status post compound fracture of the right hand. He complained of pain and swelling in the right forearm and hand. The right hand was swollen. Right grip strength was reduced when compared with the left. The appellant complained of pain in the right hand and arm during the testing and showed facial expressions of pain. A VA examination was conducted in July 1998. The appellant reported that he had always had some trouble with his right hand but for the last six to seven years his hand had become painful to the touch. If he tried to use it, it swelled and became uncomfortable. The appellant held his hand in a position of semiflexion and dependent with the elbow slightly flexed. As the examiner touched his hand to shake and introduce himself, the appellant screamed and hollered because of the alleged pain. The circumference of the hand at the level of the metacarpal heads was the same bilaterally. The circumference of both wrists was the same. The appellant would not use his right hand and reported that it hurt to be pressed. The ring finger flexed to within 4 cm. of the mid-palm and the fifth finger flexed to within 5 cm. of his mid-palm. There was a slight claw appearance of the fifth finger. The ring and little finger extended to a neutral position with the little finger going into 10 degrees of hyperextension at the metacarpophalangeal joint. He would not fully extend his proximal interphalangeal joint. The ring finger extended to 25 degrees of flexion and the little finger extended to within 40 degrees of flexion. Nerve conduction examination and electromyography were normal. Associated X-rays showed a healed fracture of the neck of the 5th metacarpal and slight flexion. There was no other evidence of fracture in the hand. The diagnoses were a healed fracture of the neck of the 5th metacarpal, subjective dysthesia in the right hand with loss of motion at the metacarpophalangeal, proximal interphalangeal and distal interphalangeal joint, and neurosis. The preponderance of the evidence is against the claim for an increased evaluation. Service medical records revealed that the appellant fracture his 4th and 5th metacarpal bones in service and is service connected for residuals of injuries to those bones only. The VA examination in July 1998 documented that flexion in those fingers was to 4 cm. of the palm (4th) and 5 cm. of the palm (5th) respectively. Evaluation under Diagnostic Code 5219 for unfavorable ankylosis is unwarranted as the competent evidence obtained from the VA examiner demonstrated that flexion to within 5.1 cm. of the palm was not prevented. The appellant is at the maximum schedular evaluation under Diagnostic Code 5223 for favorable ankylosis of the ring and little fingers. Without evidence of unfavorable ankylosis or limitation of motion preventing flexion to within 5.1 cm. of the palm, there is no provision for a higher evaluation for this disability. Here, the appellant is at the maximum schedular evaluation for his right hand disability. No additional benefit is available under the appropriate Diagnostic Code for this disability. The Board has considered the appellant's functional impairment. Functional impairment is rated as limitation of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). See also, DeLuca, supra. Reduced grip strength and painful motion have been demonstrated by competent evidence. In order to warrant an increased evaluation, the disorder must approximate the actual or functional equivalent of unfavorable ankylosis or limitation of motion preventing flexion to within 5.1 cm. of the median transverse fold of the palm. This limitation of motion or unfavorable ankylosis was not demonstrated on examination. Although weakness in grip strength has been identified, there is no competent evidence that weakness or painful motion prevents the use of the fingers that would be the functional equivalent of unfavorable ankylosis. The Board notes that the current evaluation contemplates painful motion and a degree of functional impairment. The Board notes that post traumatic arthritis was diagnosed by a private examiner in December 1995. No X-ray evidence was reported as part of this examination. Arthritis has not been diagnosed on the basis of X-ray evidence. Neither the examiner in 1995 nor any subsequent examiner has attributed post-traumatic arthritis to the service connected fractures. Therefore, an evaluation for arthritis is not for consideration. There is no competent evidence that provides a link between the service connected disability and disability associated with the other fingers, nor have any other parts of his hand been service connected. The Board has considered the appellant's testimony as well as his representative's assertions. The Board has also considered the way he was said to hold his right hand and not use it. The appellant is competent to state that his condition is worse. However, the training and experience of the medical personnel makes their findings more probative as to the extent of the disability. His assertion that he has very little use of his fingers or that he cannot hold his cane is not supported by the medical evidence. His disability is rated under criteria that examines limitation of motion, and limitation of motion that is the actual or functional equivalent a more disabling condition has not been presented. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990). In reaching this determination, the Board has specifically considered the holdings in Hill v. Principi, 3 Vet. App. 540 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). New and Material Evidence Claims This issue is based on the denial by the RO of his petition to reopen prior final denials of a claim for service connection for chloracne due to Agent Orange and service connection for post-traumatic stress disorder. On claims to reopen previously and finally disallowed claims, the Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156 (a) (1999) in order to have a finally decided claim reopened. New and material evidence means evidence not previously submitted to the agency decisionmakers which bears directly and substantially upon the specific matter under consideration. It is neither cumulative nor redundant and by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Second, if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether, based on all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107 (a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107 (b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). a) Chloracne Service connection for chloracne including as a residual of Agent Orange exposure was denied in October 1994. The veteran was informed of this decision and did not appeal. That decision was final. (Service connection for atypical mole syndrome and recurrent dermatitis by history claimed as a skin rash was denied in July 1993. The veteran was informed of this decision and did not appeal. That decision is final. These other conditions were not raised nor considered by the RO in the October 1994 rating decision. As separate and distinct dermatological conditions, they are not for consideration on the present question of whether new and material evidence has been submitted to reopen a claim for service connection for chloracne.) The appeal stems from a November 1996 rating decision wherein the RO denied the petition to reopen the claim for service connection for chloracne based on the submission of new and material evidence. The evidence before the RO at the time of the October 1994 rating decision with regard to the skin is summarized as follows: The original claim in March 1993 was for service connection for skin rashes with treatment in 1971 in Vietnam reported. Service records documenting honorable service in the Republic of Vietnam from August 1970 to September 1971. The service medical records included normal evaluations of his skin (with a notation of scars) at a February 1970 pre- induction examination and at separation in November 1971. The appellant was treated for warts in service. A VA examination was conducted in May 1993. The appellant complained of moles and a rash with blisters that was brought out more with sun and heat. Postoperative scars were noted where moles had been removed and no rash was evident. Atypical mole syndrome and recurring dermatitis by history was diagnosed. Evidence associated with the claims folder in relation to the claim for service connection for chloracne since October 1994 consisted of the following: VA Medical Center records from June 1992 diagnosed basal cell epithelioma. A portion of an August 1992 examination wherein scars were noted and otherwise the condition of his skin was normal. May 1992 VA Medical Center records that diagnosed multiple actinic keratosis of both forearms. Sun damaged skin was diagnosed. Forehead lesions were suspicious for basal cell carcinoma. A biopsy of the forehead lesion indicated atypical fibroxanthoma. A November 1994 personal statement by L. M. that after his own return from Vietnam he found out the place had been sprayed with a toxic substance and he had rashes on his face and chest from it. He stated the appellant had to have several skin cancers taken off of him. A November 1994 Decision on Appeal for Agent Orange Veteran Payment Program Fund found sufficient credible evidence of possible exposure plus possible diagnosis of chloracne to justify according him the benefit of doubt on entitlement to benefits. A December 1995 private medical examination that noted multiple skin cancers on his face, arms, hands and legs. A December 1997 "Agent Orange Brief" issued by the VA. The appellant testified before the RO in September 1996. He maintained the lesions he had in Vietnam were chloracne. The appellant testified before the RO in June 1998. His representative indicated that he had been diagnosed with basal cell carcinoma that was not chloracne. He had a breakout on his arms that day and it was sometimes much worse. He had no medical evidence that it had broken out within a year after service. In determining whether the appellant has submitted new and material evidence, the Board must consider the basis of the previous denial. Service connection for chloracne was previously denied because chloracne has never been manifest either in service or within one year after separation from service. In other words, competent evidence of inservice chloracne, post-service chloracne or any link to service or Agent Orange exposure in service had not been presented. The evidence submitted since the prior final denial does not cure the evidentiary defects that existed at the time of the prior October 1994 decision. An inservice or post-service diagnosis of chloracne has not been presented. The November 1994 Decision on Appeal for Agent Orange Veteran Payment Program Fund that found sufficient credible evidence of a possible diagnosis of chloracne without any further clarification or support is not so significant that it must be considered in order to fairly decide the merits of the claim. The appellant and his representative have acknowledged that there is no post-service diagnosis of chloracne. Although the appellant contends that his inservice rashes were chloracne, this is not supported by the service medical records or any competent evidence. His lay assertions on a matter of medical diagnosis are incompetent on that issue and cannot suffice as new and material evidence to reopen a claim. Hickson v. West, 11 Vet. App. 374(1998). The fact that the appellant had served in the Republic of Vietnam or had alleged exposure to Agent Orange had been previously established. Additional testimony or evidence that confirms a previously known fact is cumulative and not new and material. Sagainza v. Derwinski, 1 Vet. App. 575, 579 (1991); Godwin v. Derwinski, 1 Vet. App. 419, 424 (1991). Accordingly, the petition to reopen the claim for service connection for chloracne is denied. b) Post-traumatic Stress Disorder Service connection for post-traumatic stress disorder was denied in August 1993, October 1993, and October 1994. The appellant did not perfect appeals as to these denials. These denials are final. However, the claim may be reopened if new and material evidence is received. At the time of the prior final denial in October 1994, the evidence before the RO is summarized as follows: Service personnel records documented service in the Republic of Vietnam between August 1970 and September 1971. There was no documentation of or awards or decorations indicative of combat. Service medical records were silent as to a diagnosis for post-traumatic stress disorder and his psychiatric evaluations were normal at pre-induction and separation. A VA examination in May 1993 diagnosed post-traumatic stress disorder. A Social Security Administration decision in February 1993 granted the appellant disability benefits from June 1991. Findings included that the evidence established that the appellant had a "severe" mental impairment and that his testimony was not fully credible. Post-traumatic stress disorder was diagnosed on private medical examination in September 1993. In September 1994, the appellant's representative submitted copies of photographs obtained from the appellant of corpses, alleged to be Vietnamese people. The appellant submitted a statement in support of the claim wherein he alleged inservice stressors of duty on a convoy carrying fuel tanks, cleaning latrines, burning manure and the constant sound of mortar and rocket fire. Evidence association with the claims folder in relation to the claim for service connection for post-traumatic stress disorder since the October 1994 rating decision included additional private medical evaluations diagnosing post- traumatic stress disorder, in particular a March 1998 certificate that stated post-traumatic stress disorder due to service in Vietnam 1970-1971. The appellant also testified in 1996 and 1998 and reported additional stressors including riding with another serviceman who ran over Vietnamese, sleeping under a fuel truck that could have exploded and seeing many dead. He submitted color photographs of the Vietnamese corpses with the appellant's signed statement that he took the photographs. The RO also associated a report of the U.S. Armed Services Center for Research of Unit Records dated in June 1999. They were unable to verify any of the stressors submitted by the appellant, or to verify that he provided security for convoys or participated in graves registration. In determining whether the appellant has submitted new and material evidence, the Board must consider the basis of the previous denial. The Board believes that the reasons for the prior denials must be considered. At the time of the October 1994 denial, although a diagnosis of post-traumatic stress disorder was of record, no stressors were verified. In other words, in order to grant service connection for post-traumatic stress disorder in non-combat veterans, credible supporting evidence that the claimed inservice stressor occurred was necessary, and was lacking at the time of the prior final denial. Since the prior final denial, the appellant has submitted photographs of Vietnamese corpses and offered his assertion that he took those photographs. The necessary conclusion is that the appellant was in close proximity to what he photographed. This might rise to the level of a verified stressor. The Board holds that this conclusion, taken together with the private medical certificate that linked post-traumatic stress disorder to Vietnam service is new and material evidence not previously considered by the RO and sufficient to reopen the claim for service connection. Service Connection for Post-Traumatic Stress Disorder The appellant's claim for service connection for post- traumatic stress disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. There is evidence wherein at least one examiner in March 1998 linked his post- traumatic stress disorder to service in Vietnam. The duty to assist the appellant in the development of his claim under 38 U.S.C.A. § 5107 (West 1991) has not been met. At least one examiner in March 1998 has specifically attributed post-traumatic stress disorder to Vietnam service. The service personnel records do not reflect combat. The appellant's stressors must be verified, and the appellant has not submitted any stressors that are verifiable by the U.S. Armed Services Center for Research of Unit Records and has testified that he is unable to offer any more specific information that might be verifiable. The appellant stated that he took the photographs of the corpses that he submitted to the RO. It is necessary to obtain a competent medical opinion as to whether witnessing these corpses as portrayed in the photographs is sufficient to support a post-traumatic stress disorder diagnosis, as no other verifiable stressors have been submitted. Accordingly, the claim for service connection for post-traumatic stress disorder is the subject of a REMAND below. ORDER An increased rating for status post fracture of the 4th and 5th knuckles, right hand is denied. The petition to reopen the claim for service connection for chloracne is denied. The petition to reopen the claim for service connection for post-traumatic stress disorder is granted. REMAND The Board has determined that new and material evidence has been submitted, and the claim for service connection for post-traumatic stress disorder is reopened. The Board has determined as outlined above, that the record must be supplemented before a decision as to service connection for post-traumatic stress disorder may be adjudicated. Accordingly, this claim is REMANDED for the following action: 1. The RO should state whether it accepts or rejects the appellant's unsworn statement that he took the photos of the corpses contained in the claims folder. 2. The RO should schedule the appellant for a psychiatric VA examination. The examiner should be afforded the opportunity to review the claims folder prior to the examination. The examiner should address the following inquiry of the Board: The appellant is a noncombat veteran and has provided no verified or verifiable stressors in support of his claim. Is the act of taking the photographs of the corpses that are contained in the claims folders and personally witnessing what was seen through the lens of the camera sufficient to support the diagnosis of post- traumatic stress disorder? 3. The General Counsel, in representing VA before the Court of Veteran's Appeals, has noted that the RO has duties. Pursuant to 38 C.F.R. § 3.655, when a claimant fails to report for an examination in scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the claimant pursuing an original, reopened or claim for an increase without good cause fails to report for examination, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The RO must comply with all notification requirements regarding the duty to report and the failure to report for examination. The Remand serves as notice of the regulation. If upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. H. N. SCHWARTZ Member, Board of Veterans' Appeals