BVA9419735 DOCKET NO. 90-27 380 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased evaluation for service-connected residuals of head trauma, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for sleep apnea disorder, claimed as secondary to the service-connected head trauma disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1989 rating decision of the Indianapolis, Indiana, Department of Veterans Affairs Regional Office (VARO). The procedural history of this case has been thoroughly set forth in the Board's remand decision of November 3, 1992. In accordance with the Board's November 1992 remand, the requested development was accomplished to the extent possible, and the case has been returned to the Board for further appellate review. With respect to the development of the record on appeal, it is the Board's opinion that VARO fulfilled its statutory duty to assist the appellant in developing the pertinent facts in this case; it appears that all VA and private medical records which are available have been associated with the claims file. See Dusek v. Derwinski, 2 Vet.App. 519 (1992). The appellant's claim seeking entitlement to service connection for a sleep apnea disorder was denied by VARO rating action in May 1994. While there is no evidence of record to indicate the appellant's disagreement with that denial, VARO has apparently developed the claim for appellate consideration. See Rating Decision on Appeal, VA Form 21-6790 (August 18, 1994). Accordingly, the Board will now proceed to a disposition on the merits of the claims listed on the title page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his service-connected residuals of head trauma are more disabling than currently evaluated. He further argues, in effect, that his sleep apnea disorder was caused by the service-connected head injury. He, therefore, requests entitlement to service connection for this disorder on a secondary basis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). 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 appellant's service-connected residuals of head trauma warrant no increase in the currently assigned 10 percent disability rating. Further, it is the decision of the Board that the evidence of record does not establish entitlement to service connection for sleep apnea disorder as secondary to the head trauma disability. FINDINGS OF FACT 1. The appellant's service-connected residuals of head trauma are currently manifested by subjective complaints of headaches, with negative clinical evidence of physical or neurologic deficit. 2. There is no medical evidence of record which affirmatively establishes any etiological relationship between the appellant's sleep apnea disorder, which was not clinically identified or treated until 1988, and his service-connected residuals of head trauma. CONCLUSIONS OF LAW 1. The appellant's service-connected residuals of head trauma are no more than 10 percent disabling pursuant to the schedular criteria. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 8045-9304 (1993). 2. Secondary service connection for sleep apnea disorder is not warranted. 38 C.F.R. §§ 3.310 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VA and that a disposition on the merits is now in order. I. Factual Background The appellant filed his original claim in June 1983 seeking entitlement to service connection for a "laceration to [the] right side of forehead [in] 1966." VARO's rating action in October 1983 awarded service connection for "[status post] head injury, concussion with residuals," and assigned a 10 percent disability rating under diagnostic code 8045-7800. Evidence considered by VARO at that time consisted of his service medical records and the report of VA compensation examination (VAX) conducted in August 1983. The service medical records indicate that the veteran sustained a laceration injury to his right forehead in October 1966. The wound was treated routinely and his sutures were removed approximately one week later. In November 1966, the appellant was seen for complaints of numbness in his right forehead area. Findings were noted to be significant only for a two inch scar in the area of the laceration wound. In July 1967, he was treated for complaints of visual difficulties and occasional headaches. He was evaluated in the optometry clinic and his eyeglasses prescription was changed for corrective purposes. No additional treatment for any residuals of his laceration injury are indicated in the service medical records. In connection with his service separation examination conducted in September 1967, the appellant reported a history of "[f]requent headaches from injury to right forehead, and numbness in the area." Notwithstanding his complaints, medical findings on the separation examination were entirely negative for pathology connected to the old laceration injury except for a two inch scar on his forehead. No additional medical evidence appears of record until 1983 when the appellant was evaluated on VAX in August of that year in connection with his claim for VA disability compensation benefits. At that time, he reported a history of a head injury with loss of consciousness for several minutes sustained in Vietnam in 1967. He indicated that had been struck on his right forehead by a large overhead fan blade which required "several days" of hospitalization. His current complaints were significant for a history of chronic, recurrent headaches (two per month) in the area of the right forehead. He indicated that the pain was severe enough so as to preclude his further employment as a mortician. He further indicated that he would sometimes take eight tablets of Darvon to relieve his headaches and that in the past, he would consume alcoholic beverages to the point of unconsciousness in an effort to relieve his pain. He denied a history of alcohol abuse for the past six years. Physical examination revealed a well healed laceration scar located above the right brow with associated localized paresthesia and mild effusion of surrounding tissue, but with no evidence of boney deficit. Neurological evaluation was negative except for the aforementioned localized paresthesia. Pertinent diagnosis was status post head injury, concussion, with residuals. VAX in August 1983 included a psychiatric evaluation. The appellant reported experiencing "some difficulty" adjusting to civilian life after service. Immediately following service, he returned to his old job as a materials inspector with the RCA Corporation. He terminated his employment with RCA Corp. in 1976, evidently on account of feeling responsible for the deaths of fellow employees in a plane crash. He reported that he drank to excess during that time period. Subsequently, he attended Indiana University for one year but continued his studies in a specialized school for a degree in mortuary science, eventually receiving a license as a funeral director. He reported that he had just recently been told by his employer (a funeral home director) that he had been laid off, the reasons for which he was unsure. Since that event, he reported an onset of depression and thoughts of suicidal/homicidal ideation. He also reported complaints of headaches and bursitis in his shoulder, for which he took Indomethacin and Butazolidin. With respect to his alcohol abuse, he related that he stopped drinking approximately fours years ago (1979) following an incident of alcohol induced loss of consciousness. Essentially on the basis of the above findings, an Axis III diagnosis of "[h]eadaches of undetermined etiology" was established. The appellant's psychiatric profile was diagnosed as an adjustment disorder with mixed anxiety and depression. Clinical findings on mental status examination were entirely negative; he was alert, well oriented, and his intellectual functioning, memory and calculation abilities appeared intact. The appellant was considered competent for VA purposes. His psychosocial functioning was described as "minimally impaired"; his occupational capacity was described as intact. The appellant's service-connected head trauma disability was next evaluated on VAX conducted in September 1984. He stated the following concerning his disability: "I have severe headaches, I don't remember things that happened in the past. People say they happened but I don't remember." The appellant reported that he was unemployed at the time of the examination. Physical and neurological evaluations were negative for any pertinent abnormalities. The examiner indicated that the "vet[eran] appears to have many personal and emotional problems." Skull series x-rays were negative; the impression was "[n]ormal skull." X-rays showed normal skull size and configuration and there was no evidence of fractures or destructive lesions. Diagnosis was old injury to head with probable concussion. VAX in September 1984 included a special psychiatric examination. Pertinent social, industrial and medical history was essentially similar to that which was previously reported on VAX in 1983. The appellant reported continued difficulties in obtaining and/or retaining employment. He reported a history of headaches secondary to his old head injury. He also reported complaints of transient blackout spells. He denied abusing drugs or alcohol. Notwithstanding his complaints, clinical findings on mental status examination were essentially negative except for a mildly angry mood. Specifically, he was well oriented with good memory and abstraction ability. Pertinent Axis III diagnosis was "[h]istory of head injury with residual scar of the forehead." The prevailing Axis I diagnosis was adjustment disorder. The clinical findings established on the above-cited psychiatric examination were essentially equivalent to those made on a special protocol psychiatric examination conducted in September 1984 in connection with his claim for service connection for post traumatic stress disorder (PTSD). With respect to the appellant's somatic complaints, the examining VA clinical psychologist provided the following compelling commentary: [The appellant] tended to overexaggerate his symptoms but retained sufficient control to focus on his depressive feelings which are overlayed with a paranoid tendency to rationalize and project his present situation onto his prior service as being the cause of all his troubles. His affect appeared appropriate, generally his thought processes were quite clear and logical, as well as focused on his financial difficulties. He was alert, well oriented and quite aware of his surroundings. His intellect appears to be at the lower end of the average range but well within normal limits. His memory for recent and remote events is intact especially his ability to recall exactly how he was forgetful and in what ways he has been irritable, irritating and hostile/threatening towards his family and others.... Therefore, it is our opinion that while [he] does show signs of generalized anxiety by being tense, overanxious, [etc.], one cannot positively [establish PTSD]. The appellant's claim which is now on appeal to the Board was filed in November 1987. He stated the following, in pertinent part: I would like to file for a re-evaluation of my [service-connected disability]. I lost my Post Office Rural Route Carrier Job because it was taking me 9 hours to do what other people do in 7 hrs. I will be working along when my mind goes blank for 10 to 20 minutes and then I regain [consciousness].... I am also starting to lose my memory for information that I knew 3 to 4 months ago and I was a straight "A" student. Evidence submitted in conjunction with his claim included a hospital report which indicated a period of hospitalization from November 5 to 16, 1987, for evaluation of the appellant's complaints of a sore throat, shortness of breath and memory lapses. He indicated that his recurrent memory lapses were responsible for his recent job loss as a mail carrier. Notwithstanding his complaints, pertinent medical findings were entirely negative; physical examination of his head revealed no abnormalities, cranial nerves II-XII were normal and sensations were intact. Magnetic resonance imaging (MRI) scan of his brain revealed a "[n]ormal flow study." An electroencephalogram (EEG) was within normal limits; however, the examiner noted attenuation of the background rhythm and appearance of vertex sharp waves with drowsiness. On the basis of the EEG findings, the possibly of an epileptogenic disorder was indicated and further testing was recommended. Pertinent discharge diagnoses was transient amnesia, etiology unknown. VARO rating action in December 1987 denied an increased evaluation for the appellant's service-connected head trauma disability on the basis of the above-cited medical evidence. His disability was considered appropriately rated as 10 percent disabling according to the criteria under diagnostic code 8045- 8100. The appellant submitted additional medical evidence in May 1989; however, the prior denial of his claim was confirmed and continued by rating actions in June and November 1989. Evidence considered by VARO in 1989 included the report of neurological consultation dated in February 1988 which noted the examiner's impression that the appellant was having spells which appeared to represent partial complex seizures. Additional evidence included the results of a computerized tomography (CAT) scan of his brain taken in March 1988 which revealed a normal study without any focal abnormalities, and an EEG taken in March 1988 which also revealed a normal study. However, while the EEG study showed no epileptogenic activity, the interpreting technician raised a concern regarding possible sleep apnea. Additional evidence included the report of VAX conducted in September 1989. At that time, the appellant reported that he was employed as a driver for the state highway authority. He reported a 22 year history of staring spells and headaches. He indicated that his headaches were aggravated by stress. Clinical findings on physical and neurologic evaluations were negative, notwithstanding his complaints. Assessment was headaches, unknown etiology, possibly post traumatic, probably aggravated by smoking. His staring spells were indicated to be possibly related to sleep apnea; additional testing, to include video EEG monitoring, was recommended. The appellant filed his substantive appeal to the Board in January 1990. At that time, he requested a hearing before a VARO hearing officer. Evidence submitted along with his appeal included a copy of probationary period evaluation report from his former employer, the United States Postal Service. The report indicated that he was to be placed on probation for a one year period commencing February 28, 1987. The report indicated that his seizures or "staring spells" were seriously impairing his ability to perform his duties as a rural route carrier. The appellant and his wife testified at a hearing held at VARO in March 1990. He testified that his "staring spells" cost him his job with the Postal Service. He indicated that his spells caused memory lapses; however, he stated that his condition was well controlled on a regimen of Dilantin. He testified that he was currently employed as a painter for the Indiana Department of Transportation. He also testified that he experienced headaches nearly every day and that the pain was so severe that he controlled it by hurting other body parts in order to take his mind of the headache pain. The appellant indicated that his right forehead scar would protrude during a headache attack. He further indicated that stress and concentration would cause his headaches and that he took Tylenol for pain relief. The appellant's wife testified that she had been married to him since he was in the service and that she recalled him experiencing his staring spells since that time. She further indicated that he experienced headaches and that since he had been on Dilantin his seizures had abated but his headaches continued. She indicated that he was not taking any medications for his headaches. On the basis of the above, the hearing officer by decision in April 1990 confirmed and continued the prior denials of an increased evaluation for the appellant's service-connected head trauma disability. In December 1990, the Board remanded this case for additional development, to include video EEG and psychological testing. VA neurological examination conducted in February 1991 noted the appellant's complaints of staring spells which were well controlled on a regimen of Dilantin (none in the last two years). Clinical findings were essentially negative except for slowness in remembering the date and poor presidential name recall ability. The impression was status post head trauma with mild cognitive deficits and possible partial complex seizures. Additional testing was recommended. Accordingly, the appellant was hospitalized for three days in February 1991 at which time he underwent CAT scan of the brain, EEG testing and psychiatric evaluation. The CAT scan was significant only for mild atrophy. Baseline and sleep deprived EEGs were reported as normal. Physical examination was entirely normal and there was no indicated psychiatric basis for any of his complaints or symptoms. Pertinent discharge diagnosis was amnestic spells. A VAX conducted in March 1991 noted his complaints of memory impairment, headaches and a history of one staring spell seizure in the past two years. The appellant indicated that he had been employed since 1988 with the Indiana Department of Transportation but that he had missed 10 weeks in the past year due to numerous medical evaluations for his seizure disorder. Notwithstanding his complaints, physical and neurologic evaluations were entirely within normal limits. Pertinent diagnosis was seizure disorder, post-closed head injury. The appellant was scheduled for admission for video EEG testing on March 19, 1991. Submitted at the time of his March 1991 VAX was the report of an Agent Orange Protocol Examination which had been previously conducted in June 1983. The appellant's primary complaint indicated on that examination concerned pain in his right upper arm; however, he also complained of tension headaches. Neurologic and psychiatric evaluations were negative for any pertinent abnormalities. In accordance with the Board's December 1990 remand, a special VA psychiatric examination was conducted in March 1991. Reported complaints included staring spell seizures, chronic headaches, irritability and poor concentration. Mental status examination was essentially negative except for emotional frustration related to difficulties caused by his head injury and mild difficulties with concentration. Diagnosis was no primary psychiatric illness. Video EEG was recommended to confirm the presence of seizures. The appellant was hospitalized for three days in March 1991 at which time he underwent baseline EEG and prolonged video EEG monitoring of approximately eight hours duration. Baseline EEG was normal in both the awake and asleep hours. During the prolonged video EEG monitoring, no episodes of seizures with staring spells were recorded; however, episodes of sleep apnea lasting 10 to 20 seconds were recorded. Neurological examination in March 1991 was negative except for evidence of impairment of recent and remote memory and periods of inattention. Concentration was indicated to be good and thought processes were intact. VARO rating action in March 1992 confirmed and continued the prior denials of an increased evaluation for the appellant's service-connected head trauma disability on the basis of the above-cited medical evidence. In November 1992, the Board remanded this case for additional medical evaluation of his sleep apnea condition, to include a request for a medical opinion concerning a possible relationship between his head trauma disability and any diagnosed sleep apnea disorder. In April 1993, the appellant underwent an overnight polysomnogram which confirmed a diagnosis of "severe" obstructive sleep apnea with some central sleep apnea with continuous positive airway pressure. In July 1993, the appellant was evaluated on a VA neurologic examination. Complaints and prior medical history were essentially unchanged as previously indicated above in this decision. The examining VA neurologist, M. Kachaduirian, M.D., concluded the following on the basis of his findings on neurologic and mental status examinations: This is a 46 year old white male who has a history of closed head injury in 1967 with brief loss of consciousness and result[ing] in post-traumatic stress disorder, [ch]ronic headaches, memory loss and spells or seizures. His neurologic examination at this time shows clear mentation, a normal aphasia screen, and a neurologic examination that is normal and nonfocal, without lateralized deficits. The appellant was hospitalized in November 1993 for his complaints of shaking spells and sharp pains in his head, symptomatic for the last two to three weeks. Medical history was essentially unchanged as previously indicated above in this decision. The appellant's shaking spells appeared related to stress caused by the recent death of his father as well as other stressful domestic situations. Physical and neurologic examinations revealed no pertinent abnormalities; his right forehead scar was described as well healed. A CAT scan revealed some atrophy with multiple unidentified bright spots, but with no abnormal masses. An EEG was performed; however, the results of that test were indicated to be pending at the time of his hospital discharge after only two days of hospitalization. The appellant feared the loss of his job if he remained hospitalized any longer. Pertinent diagnoses were seizure disorder, post traumatic; anxiety disorder; and, obstructive sleep apnea. In April 1994, the VA neurologist who examined the appellant in July 1993 was requested to re-examine the appellant and to submit his medical opinion concerning a possible relationship between his sleep apnea and the head trauma disability. The appellant's claims file was reviewed in conjunction with the examination. Medical history was essentially as reported above in this decision. With respect to the appellant's head trauma residuals, Dr. Kachaduirian indicated that "[he] appears to have had a very mild head injury and has no evidence of residual damage on his neurologic examination, no evidence of old contusions visible on MRI, and has had all normal EEG's to date..." Finally, with respect to a relationship between his sleep apnea and his head injury, Dr. Kachaduirian indicated "[g]iven all of this information and given the fact that obstructive sleep apnea is not a neurologic problem, but is a structural problem related to the airway, it is very unlikely that this patient's sleep apnea is related to his head injury." II. Analysis Increased Evaluation for Residuals of Head Trauma Initially, the Board notes no objective evidence of actual psychiatric or epileptiform manifestations positively associated with the appellant's head injury disability which would warrant direct application of the schedular criteria set forth under diagnostic code 9300 et seq. A longitudinal review of the record indicates that his disability appears manifested by subjective complaints of headaches, with essentially negative physical and neurologic findings on recent VAXs conducted in July 1993 and April 1994, as well as on VAXs conducted in 1983, 1984, 1989 and 1991. In addition, multiple psychiatric evaluations conducted in the post service years are consistently negative for any psychiatric basis for his head trauma residuals. Further, exhaustive diagnostic testing during separate periods of hospitalization for evaluation of his disability in the post service years, to include skull series x-rays, MRI of the brain, sleep study, and multiple CAT scans and EEG's, are similarly negative for evidence of abnormal pathology connected to his head trauma disability. Such testing has confirmed only the presence of an obstructive sleep apnea disorder. Neurologic manifestations of symptomatology associated with an organic mental disorder, to include as in this case, headaches, are rated separately as distinct disabilities under the appropriate schedular criteria. 38 C.F.R. Part 4, Code 9300, et seq., note (2) (1993). As such, and if warranted by the objective medical evidence, the appellant's disability would warrant a more appropriate rating under diagnostic code 8100, since the appellant's complaints of headaches are essentially neurologic manifestations of the head injury sustained in October 1966. 38 C.F.R. § 4.20 (1993). However, the Board concludes that the appellant's disability is more appropriately rated under diagnostic code 8045 for purely subjective complaints of headaches recognized as symptomatic of brain trauma. See 38 C.F.R. Part 4, Code 8045 (1993). Code 8045 prescribes that purely subjective complaints such as headaches, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, are rated 10 percent and no more under diagnostic code 9304. In this case, the objective medical evidence, which includes the service medical records and the reports of VAXs conducted in 1983, 1984, 1989, 1991, 1993 and 1994, reflects that the appellant has been treated for his complaints of headaches that have been recognized as residual symptoms of the in-service head injury. However, notwithstanding his complaints, clinical findings of record are negative for objective pathology connected to his headache complaints. According to the schedular criteria, the appellant's subjective complaints, recognized in this case as residuals of a head injury, would warrant no greater than a 10 percent disability evaluation under diagnostic code 8045; there is simply no evidence of objective clinical findings of record showing any significant abnormal pathology connected to his old head injury. Moreover, there is no evidence which suggests that the appellant is more functionally impaired due to his service- connected disability than he was when originally granted a 10 percent rating in October 1983; the appellant has been employed throughout the post service period and the record reflects a long history of subjective complaints without supporting clinical findings. Based on the above findings, the Board concludes that the disability picture presented more nearly approximates a 10 percent evaluation under diagnostic code 8045-9304. 38 C.F.R. §§ 4.3, 4.7, 4.20 (1993). The Board notes that the record in this case reflects an apparent attempt by the appellant to exaggerate the extent of his in- service head injury. Specifically, he has repeatedly stated that he was rendered unconscious by his head injury and that he required hospitalization during service. Service medical records show only a minor laceration to his right forehead which was treated routinely on an outpatient basis. Further, service records do not indicate that he sustained a concussion as a result of the head injury. Moreover, the Board notes a 16 year gap in time after service (1967 to 1983) where there is no evidence of treatment for any residuals of his head injury. Further, there is another gap of three years (1984 to 1987) where no complaints or treatment is indicated. Interestingly, the record reflects that the appellant filed claims for increased disability compensation in 1983, and then again in 1987. In view of these findings, the Board concludes that the probative value of the appellant's contentions of record, as well as his and his wife's testimony at a hearing on appeal in March 1990, has been placed into question and, accordingly, such evidence is nullius juris with respect to the disposition of this issue. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral by VARO to VA officials under the above-cited regulation was not required. Further, the undersigned does not believe that the evidence in this case is so evenly balanced so as to allow consideration of the benefit of the doubt rule as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). Service Connection for Sleep Apnea Disorder The appellant seeks entitlement to service connection for sleep apnea disorder, a condition which he believes was caused by his service-connected head trauma disability. 38 U.S.C.A. § 1110 (West 1991). Under pertinent VA regulations, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). The Board has concluded that the preponderance of the evidence of record indicates that appellant's sleep apnea disorder, first clinically identified in 1988, is causally and medically unrelated to his service-connected head trauma disability. An etiological relationship is not shown; while post service medical records reflect treatment for complaints of headaches associated with his in-service head injury, no medical relationship between those complaints and his sleep apnea disorder has been affirmatively established. Indeed, a VA neurologist concluded in April 1994 that considering the fact that sleep apnea is not a neurologic disorder, "... it is very unlikely that this patient's sleep apnea is related to his head injury." No additional medical evidence reveals any connection between these conditions. In summary, no medical evidence of record affirmatively establishes any etiological relationship between his service-connected residuals of head trauma and the claimed sleep apnea disorder, and accordingly, the evidence does not form a basis to warrant service connection. 38 C.F.R. § 3.310 (1993). The Board cannot entertain unsupported lay speculation on medical issues. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as set forth under 38 U.S.C.A. § 5107(b) (West 1991). ORDER An increased disability evaluation for residuals of head trauma is denied. Service connection for sleep apnea disorder, claimed as secondary to the service-connected head trauma disability, is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), 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), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.