Citation Nr: 0001884 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-18 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active military service from July 1953 to June 1955, and from April 1969 to March 1971, to include service in Vietnam. The veteran died on October [redacted], 1992. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision from the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). At the time of the veteran's death, a claim was pending as he had perfected an appeal of service connection for chronic lung disease. Subsequent to the veteran's death, the appellant filed a VA form 21-534. That form is, according to its title, an application for dependency and indemnity compensation (DIC), including accrued benefits and death compensation where applicable. Therefore, a claim for dependency and indemnity compensation is also taken as a claim for accrued benefits. By statute, the appellant takes the veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). It does not appear that the RO adjudicated the claim of accrued benefits in connection with the appellant's original claim. Herein below the Board reopens the appellant's claim of service connection for the cause of the veteran's death claim and finds it to be well grounded, then remanding it for further development. Accordingly, the Board refers the issue of accrued benefits to the RO for consideration and action accordingly. FINDINGS OF FACT 1. The RO denied service connection for the cause of the veteran's death in a rating decision issued in March 1994. The RO notified the appellant of that decision by letter dated May 3, 1994; the appellant did not appeal. 2. The evidence submitted since the March 1994 rating decision bears directly and substantially upon the issue at hand, and because it is neither duplicative nor cumulative, and is so significant, it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for the cause of the veteran's death is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Evidence received since the final March 1994 determination wherein the RO denied the claim of service connection for the cause of the veteran's death is new and material, and the appellant's claim for those benefits is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of entitlement to service connection for the cause of the veteran's death is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The evidence which was of record prior to the March 1994 rating decision wherein the RO denied the claim of service connection for the cause of the veteran's death is reported below. Service medical records show no complaints or diagnoses of a pulmonary disorder at the veteran's enlistment examination in January 1969. The veteran's pulmonary and cardiovascular systems were reported as normal. The separation examination report dated February 1971 shows that the veteran's pulmonary and cardiovascular systems were normal. Results of an x-ray examination were noted to be within normal limits. Subsequent medical records during the veteran's Naval Reserve service are negative for any pulmonary or vascular system disorders. Private medical evidence reflects that the veteran was hospitalized in February 1988 for a complaint of shortness of breath. The hospital report indicates that the veteran had been exposed to Agent Orange while in Vietnam. A pulmonary lesion was noted and biopsied. The pathology report reflects diagnoses of lymph node highly suspicious for coccidioidomycosis; and partial resection of the right upper lobe showing coccidioidomycosis, interstitial fibrosis and emphysematous changes. In a May 1988 statement, W. Weese, M.D., referred the veteran to the VA in regard to his pulmonary disease. Dr. Weese asked for any comments that the VA physician might have regarding the etiologic role of Agent Orange in the veteran's interstitial fibrosis. The veteran filed an application for compensation or pension in May 1988 citing lung disease that was reported to have begun in 1975. The RO denied entitlement to service connection for chronic obstructive pulmonary disease in a rating decision dated in April 1989. The RO determined that while the veteran had a current diagnosis of chronic obstructive pulmonary disease and coccidioidomycosis there was no finding of any link to service. The veteran appealed. In a May 1989 statement, Dr. Weese noted, in part, that the etiology of the veteran's pulmonary fibrosis was not known but "perhaps" it was related to Agent Orange exposure 20 years earlier. The veteran provided testimony at a personal hearing held in December 1989. At the hearing, the veteran's representative specifically referred to a medical opinion, dated December 11, 1989, from Dr. William Weese regarding the connection between the veteran's then current diagnoses of interstitial pulmonary fibrosis with emphysematous changes and Agent Orange exposure. Transcript, p 1. The representative indicated that he believed the doctor's statement to be contained in the claims folder. However, this was not confirmed at the hearing. The veteran died on October [redacted], 1992. The death certificate lists the immediate cause of death as pulmonary embolism (massive), due to or as a consequence of phlebitis in the left leg, due to or as a consequence of diffuse interstitial pulmonary fibrosis with chronic respiratory failure. The appellant filed an application for DIC in November 1992 claiming the cause of the veteran's death was due to service- connected exposure to Agent Orange. The RO denied the appellant's claim in an unappealed rating decision dated March 1994. The RO determined that the available scientific and medical evidence did not support the conclusion that the veteran's condition was associated with herbicide exposure. The appellant was notified of that decision by letter dated May 3, 1994. The appellant did not appeal within one year and that rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In a report of X-ray interpretation dated in April 1979, which appears to have been submitted after the March 1994 rating decision, it was noted that there were findings suggesting minimal interstitial fibrosis in a 1975 study film. Also received was a copy of an application for disability payments under the Agent Orange Veteran Payment Program completed by the veteran indicating that he had served in Vietnam with the Navy's Mobile Construction Battalion (MCB) FIVE from February 26 to September 27, 197. He reported that his duty assignment had involved constructing military/naval bases and that spraying had been required at all sites. The veteran also listed the various areas in which he served. It appears that the veteran and appellant as his survivor were awarded limited monetary benefits under the program. The appellant filed an application to reopen the claim of service connection for the cause of the veteran's death in July 1996. Accompanying the application was a copy of a medical opinion rendered by Dr. William C. Weese, dated December 11, 1989. Dr. Weese indicated that the veteran had been in his care since January 1988. The diagnoses were coccidioidomycosis and interstitial pulmonary fibrosis with emphysematous changes. Dr. Weese opined that, "[a]lthough we cannot prove the etiology of the fibrosis with certainty, it is highly probable that the disease relates to exposure to Agent-Orange during his military service in Vietnam." The appellant also submitted a copy of the autopsy report showing that the relevant pathologic diagnoses were thrombosis of the left popliteal vein, bilateral pulmonary thromboembolism,; and pulmonary fibrosis, panlobular emphysema, bronchopneumonia, and absent right upper lobe. A summary report indicates that the veteran's death could most reasonably be attributed to a massive bilateral pulmonary thromboembolism, noting that the veteran had clinically documented deep venous thrombosis and that thrombus was identified in the left popliteal vein at autopsy. Factors predisposing to the development of deep venous thrombosis were noted to be endothelial or vascular injury, hypercoagulable states, and venous stasis. It was noted that the veteran had required continuous oxygen supplementation and that he likely was not very active, thus predisposing him to deep venous thrombosis on the basis of venous stasis. The reporting physician noted that the veteran had a history of exposure to Agent Orange in Vietnam; that there were no autopsy findings that could be directly linked to exposure to Agent Orange; and that there had been numerous studies of humans exposed to dioxin. It was reported that the results had been equivocal and that only chloracne undisputedly resulted from exposure. It was further stated that studies of veterans exposed to Agent Orange had not been supportive of an association between dioxin exposure and increased mortality. In a rating decision dated in December 1996 the RO denied the appellant's application to reopen the claim for service connection for cause of death. The RO determined that evidence submitted in support of reopening the claim was not new and material and had been previously considered. The appellant timely filed a Notice of Disagreement. The appellant provided testimony at a personal hearing held in May 1997. The appellant testified that immediately following the veteran's separation from service in 1971, he developed a fibrosis in the lung. The appellant further testified that the veteran told her that he was constantly exposed to spraying and burning in Vietnam. Criteria If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on the VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). Despite the finality of a prior final RO decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Court has held that VA is required to review for its newness and materiality only the evidence submitted by an appellant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In order to reopen a claim by providing new and material evidence, the appellant must submit evidence not previously submitted to agency decision makers 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 CFR § 3.156(a) (1999). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). If the Board determines that new and material evidence has been presented under 38 C.F.R. §3.156(a), the claim is reopened, and it must next be determined whether the appellant's claim, as then reopened, is well-grounded in terms of all the evidence in support of the claim, generally presuming the credibility of that evidence. See Elkins v. West, 12 Vet. App. 209, 218-219 (1999). The Court noted in Elkins and Winters v. West, 12 Vet. App. 203 (1999) that by the ruling in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit Court "effectively decoupled" the determinations of new and material evidence and well-groundedness. Thus, if the Board determines that additionally submitted evidence is "new and material," it must reopen the claim and perform the second and third steps in the three-step analysis, evaluating the claim for well-groundedness in view of all the evidence, both new and old, and if appropriate, evaluating the claim on the merits. Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The Court has held that 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)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has 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." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed.Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. 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). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. VA regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide that veterans who served on active duty in Vietnam during the Vietnam era and develop specified diseases are presumed to have been exposed to Agent Orange or similar herbicides. See McCart v. West, 12 Vet. App. 164, 168 (1999). The regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The specified diseases are chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, soft-tissue sarcoma, multiple myeloma, and respiratory cancers. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). In Combee v. Brown, the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the veteran had a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam (see 38 C.F.R. § 3.309(e)), but must also determine whether his disability was the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). In other words, the fact that the veteran does not meet the requirements of 38 C.F.R. § 3.309 does not in and of itself preclude him from establishing service connection. Service connection may alternatively be established by way of proof of actual direct causation, showing exposure to Agent Orange during service and that it caused the claimed disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). However, for direct service connection, where the dispositive issue involves a question of medical causation (such as whether a condition claimed is the result of active service in the military), then competent medical or other probative evidence is necessary to render the claim plausible or well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Analysis The appellant seeks to reopen a claim of entitlement to service connection for the cause of the veteran's death. The March 1994 rating decision is final based on the evidence of record at that time. 38 U.S.C.A. § 7104(c); 38 C.F.R. § 20.1103. In the case at hand, the Board finds that evidence has been submitted which was not in the record at the time of the March 1994 rating decision. This evidence includes a statement dated December 11, 1989 from Dr. William Weese and the veteran's autopsy report as well as appellant's testimony from a personal hearing conducted in May 1997. Although there is earlier evidence from Dr. Weese suggesting a link between the veteran's interstitial fibrosis and claimed exposure to Agent Orange during service, the December 11 statement is the only one that expresses any link as being "highly probable." The above-mentioned medical statement bears directly and substantially upon the issue being considered in this case: service connection for the cause of the veteran's death. Such evidence is significant and must be considered in order to fairly decide the merits of the claim. In this regard, the Board notes that the December 1989 medical opinion relates the veteran's post-service pulmonary condition to service. Dr. Weese opined that, "[a]lthough we cannot prove the etiology of the fibrosis with certainty, it is highly probable that the disease relates to exposure to Agent-Orange during his military service in Vietnam." The specified basis of the prior denial of the claim by the RO was that there was no material evidence of a link between any post- service pulmonary condition and the veteran's service. The Board notes that while this medical opinion was referred to by the veteran's representative at the hearing in 1990, the opinion was not contained in the claims folder at that time and therefore, was not of record. The representative's reference to it did not constitute competent medical evidence. The Board therefore finds that new and material evidence has been received since the March 1994 rating decision, and the appellant's claim is therefore reopened. 38 C.F.R. § 3.156(a). As the Board noted above, the Court recently announced a three-step test with respect to new and material cases. Under the new Elkins test, VA must first determine whether the appellant has submitted new and material evidence under 38 C.F.R. § 3.156 to reopen the claim; and if so, VA must determine whether the claim is well-grounded based on a review of all the evidence of record; and lastly, if the claim is well-grounded, VA must proceed to evaluate the merits of the claim but only after ensuring that the duty to assist has been fulfilled. Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). As new and material evidence has been submitted to reopen the appellant's claim of entitlement to service connection for the cause of the veteran's death, the first element has been met. Accordingly, the Board's analysis must proceed to a determination of whether the appellant's reopened claim is well grounded. The Board finds that the appellant has presented a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a). The record shows medical evidence of a pulmonary condition. There is also the December 1989 medical opinion which links the veteran's pulmonary disease to claimed in-service herbicide exposure while the veteran served in the Republic of Vietnam. See Cohen, supra, at 137. Therefore, the Board finds that the appellant has presented a well-grounded claim of service connection for the cause of the veteran's death. ORDER New and material evidence having been presented, the claim for service connection for the cause of the veteran's death is reopened. The claim of service connection for the cause of the veteran's death is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for the cause of the veteran's death is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). There is medical opinion on file relating the veteran's pulmonary condition to claimed Agent Orange exposure during service. However, the basis for that opinion is unknown and it is noted that the physician who expressed the opinion (Dr. Weese) previously had been less positive regarding a relationship between Agent Orange and the development of pulmonary fibrosis. Although the veteran's report of having been exposed to Agent Orange in Vietnam was accepted as credible to establish a well-grounded claim, that matter must now be developed in an attempt to obtain corroborating evidence. Additionally, there appears to be additional medical evidence that should be obtained before the claim is decided. Thus, the Board finds it necessary to remand the case for further development. 1. The appellant and her representative should be provided the opportunity to present any additional arguments or evidence in support of her claim. Additionally, the appellant should be asked to identify any additional medical records pertaining to the veteran's pulmonary condition, including but not limited to the names and addresses of all doctors, clinics and the like by which the veteran was examined or treated in the 1970s, when it appears that chest X- rays first showed noteworthy findings, and thereafter until his death. The RO should then attempt to obtain the records identified by the appellant, after obtaining any necessary authorization or medical releases. Included should be any records from the Deer Lakes Medical Association pertaining to treatment of the veteran in about 1979 by P. Nicklas, M.D., any records from Joseph Mazzei, M.D., and the veteran's complete records from Dr. Weese and from Dr. Tom Linkous. All information obtained should be associated with the claims file. 2. The RO should contact Dr. Weese and ask him to explain his December 11, 1989 statement that it is "highly possible" that the veteran's interstitial pulmonary fibrosis "relates" to Agent Orange exposure in Vietnam. He should be asked whether by "relates" he meant that Agent Orange caused the fibrosis and he should be asked to provide the bases for his opinion, to include citing any statistics and studies pertaining to human beings that support his opinion. It is noted that he provided an abstract of an article that appeared in a nursing journal in regard to animal studies and another that cites one Vietnam veteran with diffuse alveolar damage thought probably to be due to herbicide exposure. If possible he should provide the text of those articles. Also, he should be asked why, after stating in May 1989 that the etiology of the veteran's pulmonary disease was unknown but "perhaps" was related to Agent Orange exposure, he then stated a few months later that a relationship was "highly possible." He also should be asked whether in his opinion (without resort to speculation) it is at least as likely as not that the veteran's interstitial pulmonary fibrosis was caused by exposure to Agent Orange and to give the rationale for his opinion. 3. The RO should try to obtain any additional information regarding the award of benefits to the veteran and then his surviving spouse under the Agent Orange Veteran Payment Program, to include the basis for the award, the evidence pertaining to the veteran that was used to establish entitlement, etc. 4. The RO should submit this case to the USASCRUR at 7798 Cissna Road, Springfield, Virginia 22150-3197 to try to determine whether and to what extent the veteran was exposed to Agent Orange or other herbicides while stationed in Vietnam with Mobile Construction Battalion FIVE. USACRUR should be provided a copy of the veteran's DD 214 for that period of service, a copy of the veteran's Navy personnel records, and a copy of his "Application for Disability Benefits" under an Agent Orange program in which he indicated his locations in Vietnam. USACRUR should be asked to advise if the required (or additional) information can be obtained from the Navy; if so, the RO should obtain it. 5. After the above development has been completed to the extent possible and any additional development deemed essential is undertaken, the RO should adjudicate the issue of service connection for the cause of death on a de novo basis. The RO should also adjudicate the issue of entitlement to service connection for chronic lung disease for accrued benefits purposes. If the latter is denied, the appellant should be advised of the need to initiate an appeal if she disagrees. The RO should ensure that all evidence obtained is associated with the claims file so that if the case is returned to the Board a medical opinion can be obtained by the Board if necessary. If the benefits requested on appeal are not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case containing all applicable criteria pertinent to the appellant's claim. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until she is notified by the RO. 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. JANE E. SHARP Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).