Citation Nr: 0007450 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 93-09 497A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in an October 1970 rating decision which denied claims of entitlement to service connection for a psychiatric disorder, residuals of a concussion, and residuals of shrapnel wounds. 2. Entitlement to service connection for bilateral hearing loss, claimed as due to residuals of a concussion. 3. Entitlement to service connection for tinnitus, claimed as due to residuals of a concussion. 4. Entitlement to service connection for vertigo, claimed as due to residuals of a concussion. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESSES AT HEARINGS ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from December 1967 to December 1969. This matter came before the Board of Veterans' Appeals on appeal from rating decisions of the Baltimore Regional Office (RO). By a rating action in March 1993, the RO denied the veteran's claim of entitlement to service connection for vertigo. A personal hearing was held at the RO in April 1993, during which the veteran expressed his disagreement with the denial of his claim. See Tomlin v. Brown, 5 Vet.App. 355, 357-58 (1993) (holding that testimony at a hearing, once reduced to writing, can be construed as a notice of disagreement (NOD)). A lay statement was received in April 1993. A VA examination was conducted in April 1993; review of and addendum to the examination were reported in May 1993. By a rating action in January 1994, the RO found that there was no clear and unmistakable error in a rating decision of October 1970, which denied service connection for a psychiatric disorder, residuals of a concussion, and residuals of shrapnel wounds; the 1994 rating action also denied service connection for hearing loss, tinnitus, and vertigo, claimed as due to residuals of a concussion. A supplemental statement of the case, regarding all those issues, was mailed to the veteran in February 1994. A notice of disagreement with the January 1994 rating action was received in March 1994. A VA compensation examination was conducted in July 1997. A supplemental statement of the case, addressing the claim of service connection for hearing loss, tinnitus, and vertigo, was issued in December 1998. A statement from the veteran, received in January 1999, was accepted as a substantive appeal with respect to the denial of service connection for hearing loss, tinnitus, and vertigo. The case was received at the Board in April 1999. In addition to the foregoing, it is observed that the veteran's appeal also included a claim for an earlier effective date for the grant of service connection for the loss of use of his lower extremities. However, by letter dated in August 1993, the veteran withdrew that claim from appellate consideration; accordingly, the only issues currently before the Board are as set out on the first page of this decision. The veteran has been represented throughout his appeal by the Maryland Department of Veterans Affairs, which submitted written argument to the Board in July 1999. FINDINGS OF FACT 1. Bilateral hearing loss was not present in service or manifested until many years thereafter, and the medical evidence of record does not establish any etiological relationship between bilateral hearing loss and the veteran's service or any incident that occurred in service. 2. The veteran was treated for a brain concussion following a rocket blast in service in May 1969. 3. The veteran currently has tinnitus, and the evidence is in at least approximate balance as to whether tinnitus has been medically associated with his documented brain concussion sustained during active military service. 4. In May 1993, a VA physician indicated that causality for vertigo, on the basis of an etiological relationship with a concussion injury sustained in combat in Vietnam, was possible and could not be excluded. 5. The veteran's claim of entitlement to service connection for vertigo due to residuals of a concussion is plausible under the law. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for bilateral hearing loss due to residuals of a concussion is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. With resolution of reasonable doubt in the veteran's favor, it is concluded that tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. The veteran's claim of entitlement to service connection for vertigo, claimed as due to residuals of a concussion, is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The service medical records reflect that the veteran entered active duty in December 1967. Testing of his hearing, conducted that same month in conjunction with his entrance examination, revealed pure tone thresholds of -5, -5, and 5 decibels in the right ear, and -5, -5, and 15 decibels in the left ear at the 500, 1000, and 4000 Hertz levels, respectively. A clinical record cover sheet among the service medical records, dated May 14, 1969, indicates that, while serving in Vietnam, the veteran was admitted to an evacuation hospital the previous day. It was reported that he had a diagnosis of a brain concussion as a result of being injured in hostile rocket blast on May 13, 1969. The clinical records disclose that his examination upon admission revealed no wounds; the diagnostic impression was of concussion and anxiety reaction. The nursing notes indicate that, on the date of admission, neurological checks were negative, his vital signs were stable, and he was in no distress. On May 14, his neurological and vital signs were negative for any abnormality,; he had apparently slept most of the night. On that date, he was examined by a physician and discharged to duty; the examiner noted that the veteran had been observed for concussion, was neurologically intact, and was doing well at discharge. The service medical records do not reflect any complaints or medical findings of hearing loss, tinnitus, or vertigo. A report of X-ray study of the skull, performed in August 1969, noted a history of head injury, with current complaints of headaches and passing out. It was noted that the examination showed no significant abnormality. The service separation examination, conducted in November 1969, reported no pertinent abnormal findings. Testing of hearing acuity revealed pure tone thresholds of 0, 0, 0, and 0 decibels in both ears at the 500, 1000, 2000, and 4000 Hertz levels. Postservice medical records dated from 1979 through 1990, including VA as well as private treatment reports, reflect clinical evaluation and treatment for several unrelated disabilities. Among those records was the report of a VA neurological examination, conducted in February 1982, which indicated that the veteran reported having sustained a shrapnel wound in the right side of the face and forehead and being knocked unconscious during service. The veteran reported that, since that time, he had had headaches once or twice a week, which would last approximately two hours; he also indicated that he had passed out on two or three occasions. On examination, it was noted that his hearing was within normal limits. A neurological evaluation was also reported to be within normal limits. It was noted that the veteran had a history of post-traumatic headaches. Received in September 1991 was a VA hospital discharge record, dated from August 1991 to September 1991, which reflects hospitalization and treatment for an unrelated neurological disorder. Received in October 1991 were VA medical records dated from January 1982 to October 1991, reflecting clinical evaluation for several disabilities. During a clinical evaluation in September 1991, the veteran complained of occasional lightheadedness and nausea ever since military service in Vietnam. A medical statement dated in March 1992 reflects discussion of an unrelated psychiatric disorder. Of record is a medical statement from a VA audiologist, dated June 30, 1992, indicating that the veteran was seen in the audiology and speech pathology service on September 19, 1991, to determine the cause of his balance/vertigo problem. The examiner noted that the veteran's medical history revealed numbness of the arms and legs, head trauma, exposure to Agent Orange, a balance problem, and post-traumatic stress disorder (PTSD). The examiner reported that the veteran was evaluated for his hearing on June 29, 1992, at which time he reported that his vertigo had increased. The examiner noted that test findings suggested normal hearing through 3000 Hertz in the right ear and 2000 Hertz in the left ear, with mild to moderate decrease of hearing sensitivity for the higher frequencies. Poor speech recognition was noted for the left ear. The examiner further noted that electro-nystagmography (ENG) findings suggested a central dysfunction which, coupled with numbness of the arms and legs, could cause the veteran to lose his orientation in space, causing him to fall. The examiner explained that the veteran's inability to orient himself in space might, over time, increase his chances of physical injury due to loss of balance. He noted that the veteran would occasionally experience vertigo, and he would have difficulties following conversational speech, especially from the left side, in the presence of background noise. He further noted that the veteran would experience tinnitus and head noises as a characteristic of his hearing loss. At his personal hearing in July 1992, the veteran testified that his vertigo had developed as a direct result of his multiple facial wounds, which he received during combat in Vietnam. The veteran indicated that he was diagnosed as suffering from vertigo in September 1991. The veteran's wife reported that they had been married for 12 years, and she had started noticing the symptoms of poor balance and a tendency to fall a while ago. During a VA examination in October 1992, it was noted that the veteran had occasional falling episodes, which began around 1979 or 1980, and basically had episodes in which he became dizzy and would fall and hurt himself. It was noted that the veteran had been evaluated and had an abnormal ENG, indicating central dysfunction. Following an evaluation, the pertinent diagnosis was peripheral neuropathy. The veteran was afforded a neurological evaluation in February 1993, at which time it was noted that he had begun complaining of dizziness in 1969; ENG's of September 1991 and June 1992 had suggested central dysfunction with abnormal saccade tracings and frequent falls because of unsteadiness. On examination, the veteran was alert and oriented "times 3"; cranial nerves II through XII were intact. He was described as being very tremulous. Finger-to-nose and heel- to-shin coordination was intact. Rapid alternating movements were done moderately poorly, bilaterally. Gait was very hesitant and broad-based, and the veteran required assistance in walking. It was noted that he fell on attempting to close his stance or tandem walk. The Romberg test was markedly positive. The pertinent diagnoses were peripheral neuropathy and vertigo, apparently secondary to central dysfunction. On an authorized audiological evaluation in February 1993, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 20 LEFT 10 15 35 55 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 56 percent in the left ear. It was noted that there was mild-to-moderate high frequency hearing loss in the left ear; hearing loss was essentially normal in the right ear, with evidence of a slight decrease of hearing in the higher frequencies. The veteran reported tinnitus bilaterally. It was also reported that ENG revealed a 6 percent left-sided weakness with strong evidence of central vestibular dysfunction that would cause the veteran to exhibit balance difficulties. In an addendum to the February 1993 neurological examination, prepared in March 1993, the VA physician who had conducted the examination opined that, although the patient attributed his vertigo to a head injury sustained in the military in 1969, it appeared from a review of the records that no significantly severe head injury was really established. The physician indicated that his current diagnostic impression was of peripheral neuropathy, and that the patient's vertigo is very likely based upon emotional problems rather than organic impairments. In April 1993, the Adjudication Officer at the RO requested a clarification of the veteran's diagnosis from the VAMC in Baltimore. In response, a statement was provided, later that month, by the physician who had conducted the October 1992 VA examination. Upon review of the claims file and the previous examination findings, the physician stated that there was no indication that the veteran had a head injury, or that he was complaining of dizziness, until 1979 or 1989. He stated that he was unable to find any evidence of service connection; his diagnostic impression was of vertigo and peripheral neuropathy, both of unknown etiology. Received in April 1993 were duplicate VA treatment records dated from July 1981 to June 1992, the findings of which were previously discussed above. Also received in April 1993 was a copy of General Orders from the Department of the Army, dated in May 1969, indicating that the veteran was awarded the Purple Heart medal, for wounds received in connection with military operations against a hostile force, based upon action on April 20, 1969. Also received in April 1993 was a statement from [redacted] [redacted], indicating that he had served with Company D, 3rd Battalion, 21st Infantry, of the 196th Brigade in Vietnam during the period from June 1968 to June 1969. Mr. [redacted] noted that the veteran had served with the same unit during that period of time. Mr. [redacted] described an incident which occurred on April 20, 1969, when an incoming enemy rocket had exploded near the unit. Mr. [redacted] indicated that he was temporarily knocked unconscious, when he came to his senses moments later, their company had backed into the woods and taken a position. He reported that the veteran was beside him, his face covered with blood and complaining that he was blind. Mr. [redacted] stated that he carried the veteran to where the company had taken its position, and helped put him on a helicopter. He noted that the veteran was obviously in pain and out of control. That was the last he saw of the veteran. At another personal hearing, in April 1993, the veteran testified that he suffered a head injury in service as a result of rocket attack that blinded him for 3 days, and had caused his current balance problems. The veteran contended that, although a VA examination in 1992 indicated that his hearing was within normal limits, he was recently issued a hearing aid. With further regard to the aforementioned April 1993 statement as to the etiology of the claimed disorders, a handwritten annotation by another physician, dated in May 1993, appears thereon. The latter entry indicates that additional evidence recently secured from the VARO confirmed a brief hospital admission in Vietnam for concussion and anxiety. It was further noted, "At this time examinations cannot establish causality for vertigo and cannot exclude causality." Also, in a typewritten memorandum bearing the same date, that physician reiterated, "The record now documents concussion experienced in Vietnam. Causality for vertigo is possible and cannot be excluded. . . . The veteran functionally is incapacit[at]ed and is limited at this time to a wheelchair. How much the disability is related to neuropathy, PTSD and vertigo is impossible to define." In addition, the March 1993 medical statement also bears a handwritten anotation, dated in May 1993, by the physician who had conducted the February 1993 examination. The latter entry indicates that additional evidence from Vietnam from 1969 had just been reviewed, showing that the veteran had sustained a head injury, with mild concussion and anxiety reaction, and with neurological examination intact. It was further noted that the veteran had been observed overnight and then discharged, with no record of neurological sequelae. On the authorized audiological evaluation in July 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 40 LEFT 15 10 15 30 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 in the left ear. The pertinent diagnosis was moderate high frequency sensorineural hearing loss, bilateral. The examiner indicated that the veteran still reported occasional tinnitus, bilateral. The examiner stated that the veteran had occasional high pitched tinnitus, bilaterally, which has been present since military service. II. Legal analysis In order to establish service connection for a disability, there must be objective evidence which establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. § 1110 (West 1991). If a disability is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post service. 38 C.F.R. § 3.303(b) (1999). Regulations also provide that service connection may be granted for a disease diagnosed after service discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet.App. 309, 314 (1993). In the case of any veteran who engaged in combat with the enemy in active service during a period of war, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred by such service satisfactory lay or other evidence of service incurrence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (1999). The United States Court of Appeals for Veterans Claims has established criteria for the determination of a well-grounded claim, based upon the chronicity and continuity of symptomatology provisions of 38 C.F.R. § 3.303(b). The Court has held that the chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet.App. 488, 493 (1997). The standard by which lay evidence suffices to demonstrate that a current disability relates to a disability suffered during service is whether a competent medical opinion is required to identify whether a present disability is related to an inservice disability, or whether such a determination can be made by the observation of a lay person. Id., at 495. The initial question that must be answered in this case, however, is whether the appellant has presented a well- grounded claim for service connection. In this regard, the appellant has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded;" that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for a claim to be well-grounded, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997) cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet.App. 465, 469 (1994); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A. Service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of these frequencies 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 (1999). After careful review of the evidentiary record, the Board notes that the service medical records are completely devoid of any complaints, findings, or diagnoses of hearing loss. Post-service medical records, including VA examinations and reports of hospitalization in the 1970's and 1980's, also fail to show any complaints, findings, or diagnoses of hearing loss. The earliest medical evidence of hearing loss was found many years following the veteran's discharge from military service; a mild to moderate hearing loss in the left ear was noted in February 1993, and bilateral moderate sensorineural hearing loss was found in July 1997. In addition, there is no competent medical evidence of record which relates the veteran's currently diagnosed hearing loss to military service or any injury therein. Although the veteran in seeking service connection for a hearing disability may reasonably be seen as relying upon Hensley v. Brown, 5 Vet.App. 155 (1993), and 38 U.S.C.A. § 1154, the Board must point out that the claim lacks medical nexus evidence critical to a well-grounded claim, and neither authority cited would create an exception to that requirement in this case. The Court of Appeals for the Federal Circuit has held that, although the combat-veteran rules "considerably lighten" the evidentiary burden for the claimant, section 1154(b) "does not create a statutory presumption" and the issue of service connection is still a question of fact to be resolved by VA. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Moreover, the Court of Appeals for Veterans Claims has reaffirmed that the Collette decision did not affect the Caluza requirements. Libertine v. Brown, 9 Vet. App. 521, 524 (1996). While the Board acknowledges that the evidence of record clearly indicates that the veteran sustained a brain concussion as a result of a rocket explosion in service, no medical provider has ever reported that there is a causal connection between current bilateral hearing loss and military service. It is noted that audiometric testing was normal at all times during service, to include upon testing in November 1969, shortly before service separation. The veteran's lay statements, standing alone, do not provide a basis to conclude that his current bilateral hearing loss is due to service or any occurrence therein. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). We have also considered the dictates set forth by the Court in Savage; however, the Court still requires a medical nexus between service and the hearing loss, and this case does not present such medical evidence. Thus, all the requirements of Caluza are not met for the claim for service connection for bilateral hearing loss, and the Board must find that service connection for his disability is not well grounded, and the claim must be denied. B. Service connection for tinnitus The Board observes that, with respect to the claim of entitlement to service connection for tinnitus, the veteran has established a well-grounded claim. While the service medical records do not reflect any complaints or findings of tinnitus, the record clearly documents that he suffered a concussion as a result of a rocket explosion in service in May 1969. It is noteworthy that the record contains a notice of award of the Purple Heart medal to the veteran for injuries sustained in Vietnam, and there is a "buddy" statement of record which confirms that the veteran was injured during a rocket attack in service. In addition, there is supporting evidence of current tinnitus and competent medical evidence which establishes a nexus between tinnitus and military service. The report of a VA examination conducted in July 1997 provides competent evidence of a nexus between in-service events and the current disability; at that time, the examiner stated that the veteran had occasional high pitched tinnitus, bilaterally, which had been present since the military accident. In light of the medical evidence of record, including the VA examiner's opinion, and resolving any reasonable doubt in this combat veteran's favor, as required under the provisions of 38 U.S.C.A. §§ 5107(b) and 1154(b), the Board concludes that the veteran's current complaints of tinnitus cannot be disassociated from the concussion he suffered in service as a result of a rocket attack. Accordingly, the Board concludes that service connection for tinnitus is warranted. C. Service connection for vertigo As already noted, the service medical records show that the veteran suffered a brain concussion as a result of a rocket explosion in Vietnam in May 1969; the report of an X-ray study of the skull, performed in August 1969, reported a past history of head injury, with current complaints of headaches and passing out. Moreover, the evidence demonstrates that the veteran has consistently reported problems with dizziness and passing out since 1969, and he has been diagnosed with vertigo since June 1992. In addition to the June 1992 VA audiologist report noting a problem with vertigo, February, April, and May 1993 VA examinations and clinical records noted findings of vertigo. These findings document competent medical evidence of a current diagnosis of vertigo, thereby satisfying the first two elements of a well-grounded claim. See id. Therefore, in order for the claim to be well-grounded, the record must include competent medical evidence of a nexus, or link, between the current disorder and service. Of particular importance are the May 1993 medical reports by a VA physician who, acknowledging that the record contained recently available documentation that the veteran sustained a concussion during service in Vietnam, noted that causality for vertigo (presumably, to the inservice concussion injury) was possible and could not be excluded. In the opinion of the Board, this comment is sufficient to well ground the claim for service connection. Medical opinion evidence need not be expressed in terms of medical certainty. Lathan v. Brown, 7 Vet.App. 359 (1995). The "use of cautious language does not always express inconclusiveness in a doctor's opinion on etiology, and such language is not always too speculative for purposes of finding a claim well grounded." Lee v. Brown, 10 Vet.App. 336, 339 (1997). Compare Tirpak v. Derwinski, 2 Vet.App. 609 (1992) (doctor's statement that service-connected injuries "may or may not" have contributed to veteran's death was too speculative to create nexus). See also Mattern v. West, 12 Vet. App. 222 (1999) (holding that a well-grounded claim needs only to be plausible, not conclusive). The record shows, therefore, presuming the truthfulness of this evidence, Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993), a current disorder, an injury in service, and a link between the current disorder and service, thereby satisfying the three elements of a well-grounded claim. See Caluza, 7 Vet.App. at 506. Thus, the veteran has presented a claim that is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). ORDER The veteran's claim of entitlement to service connection for bilateral hearing loss is denied as not well grounded. Service connection for tinnitus is granted. To the extent the Board has determined that the veteran's claim of entitlement to service connection for vertigo due to residuals of a concussion is well grounded, the appeal is granted. REMAND As the claim of service connection for vertigo due to residuals of a concussion is well grounded, VA is under a duty to assist the veteran in further development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet.App. at 81. The duty to assist is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). The United States Court of Appeals for Veterans Claims has also held that the duty to assist includes the duty to obtain adequate and contemporaneous VA examinations. Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). In this case, a VA examination is needed to address the medical issue presented on appeal. The postservice VA medical evidence is conflicting as to the etiology of the veteran's vestibular dysfunction/vertigo. While a diagnosis of vertigo was reported on VA examinations in February and April 1993, the examiners indicated that the etiology was unknown. However, upon review of previously unavailable evidence documenting the veteran's inservice concussion injury, a physician subsequently indicated, as discussed above, that the veteran's vertigo was possibly caused by his inservice concussion. It is clear from the record that, although the RO attempted to secure a comprehensive medical opinion as to the etiology of the veteran's vertigo, the physicians involved did not have access to all pertinent records at all stages of their review/examination of the veteran. In view of the foregoing, the Board finds that the record raises a close, and as yet unresolved question as to the etiology of the veteran's vertigo. On another matter, the Board further notes that, in August 1970, the veteran filed a claim for service connection for various conditions, including anxiety reaction, concussion, and shrapnel wounds. The veteran was notified by letter from the RO in October 1970, that, due to his failure to report for a VA examination, his claim was denied. The veteran did not appeal that decision. In a VA Form 9 (Appeal to Board of Veterans' Appeals) filed in June 1993, the veteran raised the issue of whether the October 1970 rating action, which denied service connection for anxiety reaction, concussion, and shrapnel wounds, was a product of clear and unmistakable error (CUE). This CUE claim was initially adjudicated in a rating action of January 1994. The RO determined that the October 1970 rating action did not contain CUE in its denial of service connection for the above-cited issues. A supplemental statement of the case (SSOC), addressing other issues already on appeal, was issued in February 1994. That SSOC included notice as to the denial of the CUE claim, and noted that it had not previously been in appellate status. In the letter transmitting the SSOC, the veteran was informed that, "If you have already filed a Substantive Appeal with respect to the issues contained in the original Statement of the Case or prior [SSOC], a response at this time is optional." He was further advised that his case would be returned to the Board if no reply was received within 60 days. Because the veteran's CUE claim was first denied in the SSOC, the RO's February 1994 letter, although well-meaning, did not properly inform him of his appellate rights. He was not advised that he needed to file a timely notice of disagreement (NOD) with the RO's initial denial of the CUE issue in the SSOC, if he wished to appeal that issue. In fact, he was told that a response was optional. That advice would have been correct if he had already received notice of the CUE denial and filed an NOD, but he had not. In a letter dated in March 1994, the veteran essentially argued that the October 1970 rating decision was clearly and unmistakably erroneous in its denial of service connection for a psychiatric disorder, residuals of a concussion, and shrapnel wounds. In light of the procedural irregularities described above, and the confusion in the furnishing of the veteran's appellate rights as to his CUE claim, the Board finds that the veteran's statement in March 1994 constitutes a timely NOD with the RO's determination that the October 1970 rating action did not include clear and unmistakable error. In light of the foregoing, the Board finds that the RO should issue an additional SSOC, which includes all relevant law and regulations as to the issue of CUE. The transmittal letter accompanying the SSOC must properly inform the veteran of his appellate rights, specifically, that he has 60 days from the date of mailing of the SSOC in which to perfect his appeal by filing a substantive appeal. The Board finds that a remand for this action is necessary. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (1999); see also Manlincon v. West, 12 Vet.App. 238, 240-241 (1999); Godfrey v. Brown, 7 Vet.App. 398 (1995); Archbold v. Brown, 9 Vet.App. 124 (1996). In view of the foregoing, and to ensure full compliance with due process requirements, the case is hereby REMANDED to the RO for the following development: 1. The veteran should be requested to identify all health care providers, VA and non-VA, who have examined and/or treated him for balance problems/vertigo since his discharge from service. All records, which are not duplicative of evidence already received, should be obtained and associated with the claims file. 2. The veteran should undergo a comprehensive VA neurological examination to determine the full nature and etiology of the veteran's vertigo. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The veteran's claims folder, along with a complete copy of this REMAND, must be made available to and be reviewed by the examiner. Based upon examination of the veteran and review of the case, and with particular attention to the service medical records, the examiner should render an opinion as to whether it is at least as likely as not that a relationship exists between the veteran's vertigo and his active military service, particularly the concussion which the veteran sustained in service, and, if so, the nature of that relationship. All examination findings, along with the complete rationale for all opinions expressed and conclusions drawn (with citation, as necessary, to specific evidence of record) should be contained in a typewritten report. 3. After completion of the foregoing, and any other development shown to be warranted by the record, the RO should readjudicate the claim for service connection for vertigo on the merits, taking into consideration all applicable regulations and the relevant law noted above. If the decision remains adverse to the veteran, both he and his representative should be provided a supplemental statement of the case, which summarizes the pertinent evidence, all applicable law and regulations, and reflects detailed reasons and bases for the decision. They should then be afforded the applicable time period in which to respond. 4. The RO should ensure that any indicated further development is conducted with respect to the issue of whether the October 1970 rating action, which denied service connection for an anxiety reaction, concussion, and shrapnel wounds, contained clear and unmistakable error. The claim should then be readjudicated with consideration of all evidence received since the last final determination. In any event, if the claim remains denied, a supplemental statement of the case must be issued which addresses this issue and includes all relevant laws and regulations. The veteran must be advised of the time in which he may file a substantive appeal. Thereafter, if an appeal has been perfected, this issue should be returned to the Board. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. No actions is required of the veteran unless he receives further notice. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals