Citation NR: 9719447 Decision Date: 06/05/97 Archive Date: 06/13/97 DOCKET NO. 95-20 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased rating for service-connected residuals of a right ankle injury with fusion, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Louis J. George, Associate Counsel INTRODUCTION The veteran served on active duty from June 1970 to July 1972. This claim comes before the Board of Veterans’ Appeals (Board) on appeal from a February 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for bilateral hearing loss and denied an increased rating for residuals of a right ankle injury with fusion, currently evaluated as 20 percent disabling. At his personal hearing at the RO, the veteran claimed his left knee constantly hurts as a result of his service- connected right ankle disability. Furthermore, the veteran claimed that he has numbness in his legs and in his hip (the veteran did not indicate which hip was affected), which he attributed to one of his operations, in which a bone was removed from his hip. See Transcript of Personal Hearing at RO, September 15, 1995, at 6-7. These claims have not yet been adjudicated and are referred to the RO for appropriate action. The veteran claims that his service-connected foot and ankle disabilities have affected his ability to be employed. See Transcript of Personal Hearing at RO, September 15, 1995, at 2. This claimed inability to work was noted in the report of the VA examination of January 1994. The above contentions constitute a claim for a total disability rating based on individual unemployability (TDIU). While this claim has been properly raised, it has not yet been adjudicated by the RO, and will be remanded for appropriate development. See VAOPGCPREC 6-96. For reasons set forth in the REMAND portion of this decision, appellate review is deferred regarding the claim of entitlement to an increased rating for service-connected residuals of a right ankle injury with fusion, pending further evidentiary and procedural development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he currently suffers from hearing loss which he attributes to his active service. The veteran claims that while on active duty he served as a jet mechanic, and was exposed to jet engine noise. The veteran alleges that although he was issued ear protection, he would lend his earphones to pilots who asked to borrow them. The veteran claims that he was not given adequate instructions on the proper use of ear protection, nor was he advised of the dangers of lending his ear protection to others. The veteran claims that he first noticed hearing loss within one year after separation from active service. In addition, the veteran claims that he had a hearing test before he got a job on gas rigs, which revealed that his hearing was “bad.” DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has failed to satisfy the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for bilateral hearing loss is well grounded. FINDINGS OF FACT 1. On VA audiometric examination in September 1995, the veteran’s hearing in the right ear was manifested by pure tone threshold decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz of 10, 10, 15, 30, and 25 decibels, respectively; and by a speech recognition score utilizing the Maryland CNC Test of 96 percent. 2. The veteran does not have a current hearing loss disability in the right ear. 3. On VA audiometric examination in September 1995, the veteran’s hearing in the left ear was manifested by pure tone threshold decibel loss at 500, 1000, 2000, 3000, and 4000 Hertz of 15, 15, 15, 30, and 25 decibels, respectively; and by a speech recognition score utilizing the Maryland CNC Test of 92 percent. 4. There is competent evidence of exposure to noise in service. 5. The veteran has not submitted competent medical evidence of a nexus, or link, between his current hearing loss of the left ear and any disease or injury on active service. 6. The veteran’s claim of service connection for bilateral hearing loss is not plausible. CONCLUSION OF LAW The veteran has not presented a well-grounded claim for service connection for bilateral hearing loss. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran’s service medical records contain a copy of his DD 214N (Armed Forces of the United States Report of Transfer or Discharge), which shows that the veteran’s military occupational specialty (MOS) was that of an AMH (Aviation Structural Mechanic, Hydraulics). In the Report of Medical History completed by the veteran in connection with his enlistment physical examination in February 1970, he indicated no current or previous complaint of ear, nose, or throat trouble, or hearing loss. On physical examination, a general examination of the ears was normal, and there was no ear drum perforation reported. Audiometric examination revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 - 10 LEFT 10 5 5 - 0 There is no treatment record contained in the service medical records relating to ear trouble or hearing loss. On separation physical examination in July 1972, a general examination of the ears was normal, and there was no perforation of the ear drums reported. On audiometric examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 10 LEFT 5 0 5 15 10 In addition, testing at the 6000 Hertz frequency revealed pure tone threshold decibel loss of 15 decibels bilaterally. The veteran was afforded a VA general medical examination in October 1982, at which time the examiner noted that there was a slight infection of the tympanic membranes bilaterally. The examiner indicated that there was no hearing loss noted. The veteran’s claims folder contains a substantial amount of VA medical records relating to his service-connected ankle and foot disabilities dating from July 1982 to August 1990, including VA compensation examinations conducted prior to the commencement of the claim on appeal. Although these records primarily related to the veteran’s ankle and foot conditions, no reference was made to hearing loss of any kind. The veteran commenced the claim on appeal in June 1994. In his request for service connection for hearing loss, the veteran indicated that he had just received a hearing test at the VA Medical Center in Bay Pines, Florida. The RO associated with the claims folder outpatient treatment reports from the VA Medical Center in Bay Pines. These reports include an outpatient treatment report dated in June 1994, which related to the veteran’s complaints of left ear pain. The examiner noted that the veteran reported having had an insect in the left external auditory canal for four weeks, and that there had been a failed attempt at extraction. The examiner noted that the veteran had a 20 year history of decreased hearing, which was nonservice- connected. On physical examination of the left external auditory canal, the examiner found a patent dry insect, which was removed, and the external auditory canal was irrigated. The examiner noted that the left tympanic membrane was hyperemic and intact. The right ear was reported as negative for abnormality. The veteran presented testimony at a personal hearing held at the RO in September 1995. At the hearing, the veteran claimed that he worked as a jet mechanic during active service. Although the veteran acknowledged that he was provided ear protection during active service, he claimed that he was not given adequate instructions or warned of the dangers of lending his earphones. The veteran attributed much of his hearing loss to the fact that he would lend his earphones to pilots who asked to borrow them. See Transcript of Personal Hearing at RO, September 15, 1995, at 3-4. Also at his personal hearing, the veteran claimed that he knew he had hearing loss within a year after his separation from active service, and his hearing had gradually deteriorated since then. The veteran claimed that before he took a job working on an oil rig, he had a hearing test, and was told that his hearing was “bad.” See Transcript of Personal Hearing at RO, September 15, 1995, at 4. The veteran claimed that the previous year, a VA audiologist told him that his hearing loss was definitely related to noise. The veteran added that the audiologist did not actually test his ears, but “[the audiologist] could tell the way she looked at my ears...” that he would need a hearing aid eventually. Id. at 4-5. In connection with his claim, the veteran was afforded a VA audiological evaluation in September 1995. The examiner noted that the veteran reported decreased hearing which began approximately one year after his separation from active service. The examiner reported that the veteran complained of experiencing increasing difficulty with his hearing. The veteran denied any history of otitis media, otorrhea, or otosurgery. The veteran reported removal of an insect from his left ear by a VA physician. The veteran reported having bilateral tinnitus and noted that his spouse complained about his hearing and was aware of the need for visual clues in order to understand speech. The examiner reported as history that the veteran served two years in the U.S. Navy as a jet mechanic, and in this position he was exposed to continuous jet engine noise. The examiner noted that the veteran reported having worked as a civilian on gas rigs, which were somewhat noisy, however the noise was not as severe as that coming from jet engines. On authorized VA audiological examination in September 1995, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 30 25 LEFT 15 15 15 30 25 The average decibel loss for 1000, 2000, 3000, and 4000 Hertz for the right ear was 20 and for the left ear was 21. Speech audiometry utilizing the Maryland CNC Test revealed speech recognition ability of 96 percent for the right ear and 92 percent for the left ear. The examiner indicated that the veteran reported experiencing constant bilateral tinnitus. The veteran was unable to identify the date of onset, but indicated that he was aware of the condition for years. In the summary of the test results, the examiner said that pure tone test results for the right ear indicated that hearing sensitivity was within normal limits according to VA guidelines, however, the right ear exhibited a mild sensory hypacusis at 6000 Hertz and 8000 Hertz. The examiner indicated that the left ear results showed a mild to moderately severe sensory hypacusis from 3000 Hertz to 8000 Hertz. II. Analysis A. Entitlement to service connection for bilateral hearing loss 1. Applicable law relating to service connection Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That same statute mandates a duty to assist the veteran. However, the duty to assist applies only after a well-grounded claim has been submitted. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In making a claim for service connection, the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Generally, a well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation.” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or was aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet.App. at 81. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1996). In order to establish service connection, either the evidence must show affirmatively that such a disease or injury was incurred in or aggravated by service, or statutory presumptions may be applied. A veteran who has 90 days or more of wartime service may be entitled to presumptive service connection of a chronic disease that becomes manifest to a degree of 10 percent or more within one year from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 1991 & Supp. 1996); 38 C.F.R. § 3.307 (1996). It is appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and, therefore, a presumptive disability. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. § 3.309(a) (1996). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1996). A claim for service connection requires three elements to be well-grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Truthfulness of the evidence is presumed in determining whether a claim is well-grounded. Id. at 504. For purposes of applying the laws administered by VA, impaired hearing is considered disabling when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1996). On VA audiometric examination in September 1995, the veteran’s hearing in the right ear did not meet any of the criteria necessary to establish a current hearing loss disability. In Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992), the Court noted that, "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability...In the absence of proof of a present disability there can be no valid claim." Accordingly, the claim for service connection for hearing loss of the right ear is not plausible for the reason that no present disability, for VA compensation purposes, is shown. In this case, on VA examination in September 1995, the speech recognition score for the left ear was 92 percent, so the veteran meets the regulatory requirement to establish a current hearing loss disability in the left ear. 38 C.F.R. § 3.385 (1996). Although the veteran has presented competent medical evidence of hearing loss of the left ear, he has not submitted evidence showing that his current hearing loss was incurred in or aggravated by active service. On the veteran’s entrance physical examination in February 1970, and on separation physical examination in July 1972, he was accorded audiometric examinations which showed no hearing loss disability for purposes of VA guidelines or as has been interpreted by the Court. See Hensley v. Brown, 5 Vet.App. 155, 157 (1993) (“[T]he threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.”). Although the veteran served as an Aviation Structural Mechanic during active service, and in such capacity he may have been exposed to jet noise, there is no mention in his service medical records that he sustained any hearing loss related to his active service. In addition, the veteran has not submitted competent medical evidence of a nexus, or link, between any current hearing loss disability and his active service. Although the veteran has claimed that he began to experience hearing loss within one year of separation from active service, he has not provided medical evidence to corroborate his contention. Although the veteran claimed that a pre-employment physical examination conducted in connection with his employment on a gas rig revealed hearing impairment, the veteran has not indicated the date on which he was examined. In addition, the Board notes that in his first VA compensation examination, conducted in October 1982, there was a space on the examination report (VA Form 21-2545) in which the veteran was asked to indicate his occupational history since his discharge from military service or since his most recent VA examination. The veteran indicated that he worked on a gas rig from September 1981 to October 1982. Therefore, even if a pre-employment physical examination was conducted prior to September 1981, that is still over nine years after his separation from active service. In addition, the Board notes that in the report of the October 1982 VA compensation examination, the examiner noted that there was a slight infection of the tympanic membranes, bilaterally, however, hearing loss was not noted. The first medical notation of any currently manifested hearing loss was reported in a VA outpatient report of June 1994, which related to the veteran’s treatment for an insect in his left ear. The examining physician noted that the veteran had decreased hearing for 20 years. However, the physician’s statement appears to have been based solely on the history as provided by the veteran, with no reference to objective, supporting medical evidence or medical records. See Godfrey v. Brown, 8 Vet.App. 113, 121 (1995) (The Board is not required to accept doctors’ opinions that are based upon the veteran’s recitation of medical history); Owens v. Brown, 7 Vet.App. 429 (1995); Elkins v. Brown, 5 Vet.App. 474, 478 (1993); Swann v. Brown, 5 Vet.App. 229 (1993). The first instance in which hearing loss disability in the left ear was clinically diagnosed was on VA examination in September 1995. Accordingly, the veteran’s claim of entitlement to service connection for bilateral hearing loss is not plausible. The Board notes that the Court has held that when a claimant fails to submit a well-grounded claim under 38 C.F.R. § 5107(a) (West 1991), VA has a duty to advise the claimant of the evidence required to complete the application. 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet.App. 69, 77-80 (1995). In this case, the Board finds that this procedural consideration already has been satisfied. The RO fulfilled its procedural obligations under § 5103(a) by informing the veteran of the reason for its denial of service connection, in the rating decision on appeal, and in the statement of the case (SOC) and in the supplemental statement of the case (SSOC). In addition, this Board decision informs the veteran of the evidence that is lacking to make his claim well grounded. Although in the rating decision that is the subject of this appeal, the RO did not notify the veteran that his claim was not well grounded, any such error was nonprejudicial. See Edenfield v. Brown, 8 Vet.App. 384 (1995) (“Assuming, arguendo, that it was error to express a disallowance in terms of the merits where the claim is, in fact and law, not well grounded, the Court should nonetheless affirm the Board’s ‘erroneous’ disallowance of the claim on the merits unless to do so would prejudice the appellant.”; citations omitted). In this case, any such error by the RO was nonprejudicial, since the rating decision, the SOC, and the SSOC provided the reasons and bases for the RO’s denial. The February 1995 rating decision advised the veteran that there was no evidence of inservice incurrence of hearing loss, and the SOC advised the veteran of the relevant law relating to service connection for hearing loss, including 38 C.F.R. § 3.385. In March 1997, the veteran’s representative cited provisions of the VA Adjudication Procedure Manual M21-1 (M21-1), specifically, Part III, Paragraph 1.03a, and Part VI, Paragraph 2.10f. The representative requested that “[i]f the Board finds that a current claim is not well grounded. . . that the Board determine whether the RO followed the M21-1 substantive rules requiring that full development of all claims be undertaken prior to the well grounded determination.” The representative has requested that if the Board finds that such development in accordance with M21-1 did not occur, then the case should be remanded for full development of the claim. The representative also requested that in the Board’s remand order, the RO be directed to notify the veteran of the one year time limit to produce evidence in accordance with 38 U.S.C. § 5103(a). See Written Brief Presentation, March 28, 1997. In addressing these contentions, the Board notes that the RO developed the veteran’s claim in accordance with the provisions of M21-1, by affording the veteran a VA audiological examination, and by associating VA medical records with the claims folder. The veteran has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. Because the veteran has not submitted a well-grounded claim, VA does not yet have a duty to assist the veteran in developing the claim pursuant to 38 U.S.C.A. § 5107(a). ORDER Having found the claim not well-grounded, the claim of entitlement to service connection for bilateral hearing loss is denied. REMAND Additional evidentiary and procedural development must be accomplished prior to further consideration of the veteran’s claim for an increased rating for residuals of a right ankle injury with fusion, currently evaluated as 20 percent disabling. Service connection has been established for the following disabilities: residuals of right ankle injury with fusion, evaluated as 20 percent disabling under Diagnostic Code 5270; equinus deformity, right foot, evaluated as 10 percent disabling under Diagnostic Code 5299-5280; tender scars, right foot, evaluated as 10 percent disabling under Diagnostic Code 7804; and tender scar, bone graft site, iliac crest, evaluated as 10 percent disabling under Diagnostic Code 7804. The combined evaluation is 40 percent. Service connection was established for the veteran’s equinus deformity of the right foot in an October 1985 rating decision. In the rating decision, the RO characterized the disability as directly due to and proximately the result of the veteran’s service-connected ankle disability, and assigned a 10 percent evaluation pursuant to Diagnostic Code 5299-5280. Since the veteran’s equinus deformity of the right foot was established as a secondary condition, it is considered a part of the original service-connected right ankle disability. See 38 C.F.R. § 3.310(a) (1996). Accordingly, the veteran’s equinus deformity should be considered as part and parcel of the original service-connected residuals of a right ankle injury with fusion, and it should be considered in the adjudication of the veteran’s claim for an increased disability rating. While the veteran complained of constant foot pain on VA examination in September 1995, the examiner did not evaluate the disability attributable to the equinus deformity. Furthermore, the RO did not consider in its adjudication whether an increased evaluation for the veteran’s equinus deformity under all potentially applicable regulations was warranted. The RO also did not evaluate the veteran’s service-connected scars. Accordingly, the Board will REMAND this case so that all disabilities that are part and parcel of the veteran’s right ankle disability, to include his equinus deformity of the right foot and service-connected scars, may be evaluated. The Board notes that the veteran indicated in January 1995 that he had a series of examinations conducted at the VA Medical Center in Bay Pines, Florida, and that he wanted them associated with his claims folder. Although the RO associated with the claims folder a VA treatment notation of August 1995, this treatment notation referenced a bone scan report of January 1995, which was not associated with the claims folder. In addition, a VA outpatient treatment report of June 1994 referenced contemporaneous x-ray reports and a follow-up orthopedic appointment of December 1994, none of which are contained in the claims folder. Since the above records relate to treatment at a VA medical facility for the veteran’s service-connected disabilities and could be relevant to his claim for an increased rating, the Board will REMAND this case so that the RO may obtain these treatment reports and make them a part of the record on appeal. See Bell v. Derwinski, 2 Vet.App. 611, 613 (1992) (VA medical records are in constructive possession of the Secretary and the Board, and must be obtained if the material could be determinative of the claim). In addition, as part of this REMAND, the RO should ask the veteran if he has received any further private or VA treatment for his service-connected disabilities and obtain such treatment records. Once the above medical records have been associated with the claims folder, the veteran should be afforded appropriate VA examinations, including orthopedic and dermatological examinations, in order to determine the nature and severity of his residuals of a right ankle injury with fusion, equinus deformity of the right foot, tender scars of the right foot, and tender scar, bone graft site, iliac crest. Thereafter, the veteran’s claim should be readjudicated. Since VA has a duty to consider all potentially applicable regulations, to include appropriate diagnostic codes, the RO should consider whether the medical evidence implicates a rating for the veteran’s right ankle and foot disabilities under other potentially applicable diagnostic codes. In addition, as noted in the Introduction, the veteran has claimed entitlement to a total disability rating based on individual unemployability (TDIU). The RO should adjudicate this claim as part of this REMAND. Accordingly, this claim is REMANDED for the following: 1. Obtain and associate with the claims folder all examination and treatment reports from the VA Medical Center in Bay Pines, Florida, documenting treatment for the veteran’s right ankle and right foot disabilities from June 1994 to the present. 2. Ask the veteran if he has received any further treatment from private or VA health care providers for his service- connected right ankle and right foot disabilities. If so, obtain appropriate releases and obtain the treatment records. Associate all records received with the claims folder. 3. The veteran should be afforded appropriate VA examinations, including orthopedic and dermatological examinations, in order to determine the severity of his service-connected residuals of a right ankle injury with fusion, equinus deformity of the right foot, tender scars of the right foot, and tender scar, bone graft site, iliac crest. The claims folder is to be made available to each examiner before the examination, and each examiner is asked to indicate in the examination report that he or she has read the claims folder. All necessary testing is to be done, to include range of motion testing, with normal range of motion indicated. If limitation of motion is present, all objective evidence of pain is to be noted, and the examiner is asked to determine whether additional functional limitation is likely to result with use or during flare-ups and to describe as fully as possible what the additional functional limitation would be. All factors on which the assessment is based are to be set forth. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all required development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the reports do not include fully detailed descriptions of pathology and all test reports, including adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (1996). 5. Thereafter, the RO should adjudicate the issue of entitlement to a total rating based on individual unemployability, and readjudicate the claims for an increased rating for residuals of a right ankle injury with fusion, equinus deformity of the right foot, tender scars of the right foot, and tender scar, bone graft site, iliac crest, with consideration given to all of the evidence of record and all potentially applicable diagnostic codes and regulations. If the RO determines that rating codes pertaining to arthritis and limitation of motion are applicable, the RO should exercise care to consider the applicability of DeLuca v. Brown, 8 Vet.App. 202 (1995). 6. If any benefit sought on appeal, for which an appeal has been perfected, remains denied, or if the issue of entitlement to a TDIU is denied, the veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and provided a reasonable opportunity to respond thereto. If the issue of entitlement to TDIU is decided adversely to the veteran, he must be specifically advised of the need to file a substantive appeal with respect to that issue and of the time limit within which to perfect his appeal in order to assure Board review. While this case is in remand status, the veteran and his representative are free to submit additional evidence and argument on the question at issue. Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992); Booth v. Brown, 8 Vet.App. 109, 112 (1995). Thereafter, this case should be returned to the Board for further review, as appropriate. The veteran need take no action until he is so informed. The purpose of this REMAND is to obtain additional evidence and to accord the veteran due process. The Board intimates no opinion as to the outcome of this case by virtue of this REMAND. 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 Veterans Appeals 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. 1996) (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. J. SHERMAN Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1996). - 2 -