Citation Nr: 9809910 Decision Date: 03/31/98 Archive Date: 04/14/98 DOCKET NO. 91-48 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for generalized arthritis. 2. Entitlement to an increased rating for a left hand disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran had active service from July 1970 to January 1972. In a July 1972 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, service connection was granted for “rheumatoid arthritis, history of, no objective dysfunction,” and an effective date of January 18, 1972, was assigned. In an April 1982 RO rating decision, the disability was reclassified as “psychological musculoskeletal reaction” and a 10 percent rating was assigned, effective June 26, 1980. In a December 1990 RO rating decision, the disability was reclassified as “traumatic arthritis of left hand,” and assigned an effective date of September 1, 1982, and an increased rating was denied. This appeal arises from the December 1990 and later RO rating decisions which denied a claim for an increased rating for a service-connected left hand disability, currently rated 10 percent disabling. The veteran submitted a notice of disagreement in January 1991. Included with his notice of disagreement was a claim for service connection for arthritis of other joints. In a March 1991 rating decision, the RO denied service connection for “generalized arthritis” and issued a statement of the case addressing an increased evaluation for a left hand condition. In May 1991, the veteran submitted a substantive appeal concerning service connection for generalized arthritis and for an increased rating for a left hand condition. In a July 1991 RO rating decision, service connection for generalized arthritis and an increased rating for traumatic arthritis of the left hand were again denied. In October 1992 the Board of Veterans’ Appeals (Board) found that reclassification of a disability which had been in effect for over 10 years in effect terminated service connection for arthritis of certain joints and violated the rules against severance found at 38 C.F.R. §§ 3.105(d), 3.957. The Board remanded the appeal to the RO for additional development. In April 1996, the RO issued a supplemental statement of the case addressing service connection for generalized arthritis and denying an increased evaluation for traumatic arthritis of the left hand. In September 1997, the Board obtained an independent medical opinion concerning the etiology of the veteran’s musculoskeletal symptoms. By letter dated December 1, 1997, the Board notified the veteran's representative that they could have 60 days to submit additional evidence or argument. The veteran's representative subsequently indicated that they were submitting the case to the Board based on previously advanced arguments and evidence of record. The issue of an increased rating for a service-connected left hand condition will be addressed in the remand portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has had painful joints of the fingers of both hands, the knees, hips, back and shoulders which have existed since active service. He contends that his symptoms are worse in cold weather. He contends that he has pain, stiffness, and redness at some of these joints and that the symptoms are similar to the symptoms in his service- connected left thumb. He requests service connection for generalized arthritis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for generalized arthritis. FINDING OF FACT Generalized arthritis was not manifested during active service or to a degree of 10 percent within one year of separation from service, or otherwise shown to be related to active service or to service connected disabilities. CONCLUSION OF LAW Generalized arthritis was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran had active service from July 1970 to January 1972. According to the veteran’s service medical records, a November 1971 treatment report notes a 6 month history of pain in the left hand ring finger and that the veteran had repeatedly struck this area. The examiner’s impression was tenderness due to trauma, rule out tendinitis and arthritis. In November 1971 rheumatoid factor studies revealed a positive latex fixation screening test and that a latex fixation tube titer was negative. A December 1971 treatment report reflects that the veteran had pain in the left index finger, left fourth finger, and left wrist. Heat was prescribed. A January 1972 separation examination report indicates painful feet and that the veteran had joint problems in his hands and was taking salicylates for this. Bilateral pes planus was found. No other joint complaints were noted. In February 1972 the veteran submitted a claim for service connection for bilateral pes planus. In April 1972 the RO received a letter from the veteran’s childhood doctor indicating dates of treatment for various disorders from 1961 to 1968. No arthritis was noted in this history of treatment. In April 1972 the veteran reported that he wished to file for service connection for rheumatoid arthritis in his fingers, wrists, and knees. In June 1972 the veteran underwent a VA examination. He reported that his hands wrists and knees began to bother him while in service in 1970. Cold weather caused pain in these joints. He suffered no injuries to these joints in service. The examiner noted that there were no objective symptoms at present. X-rays of the hands, wrists, and knees showed no bony abnormality. The sedimentation rate was 8. The relevant diagnosis was rheumatoid arthritis of the hands, wrists, knees, history of, without objective evidence of dysfunction at present. In a July 1972 RO rating decision, service connection was established for rheumatoid arthritis, history of, no objective dysfunction. An effective date of January 18, 1972, was assigned. A February 1980 VA treatment report indicates that the veteran reported increased joint pain and also that more joints were involved. He had left ear ache, back pain and chest pain as well as feet pain and left hand and thumb pain. The examiner noted that there were no signs of acute inflammation. He also noted status post rheumatoid arthritis, initial stage, relieved with anti-inflammatory drugs. A March 1980 VA treatment report notes that the examiner could find no evidence of rheumatoid arthritis at this time by examination or by X-ray. In June 1980 the veteran requested reexamination for his arthritis and flat feet. He reported chest pain, jaw pain, and ear aches from his arthritis. A June 1980 VA treatment report notes that there is no evidence of inflammation or limitation of motion; however, the report noted that the veteran was on Naprosyn which has helped him a lot. The impression was “fibrositis” and “early rheumatoid arthritis to be ruled out.” In a September 1980 statement, the veteran indicated that he had pain in "many of my joints," although he did not mention specifically his hips. A November 1980 private examination report by Edward Leib, MD, indicates that he had examined the veteran but could find no concrete evidence of an inflammatory arthritis. He also reported, “I suspect that the patient was misdiagnosed as having rheumatoid arthritis in the past on the basis of a positive rheumatoid factor, and in fact has some type of benign mild fascial syndrome. I did not think his history was consistent with any inflammatory arthritis.” The veteran reported that he had intermittent pain in his left hip with occasional stiffness in the knees. Upon examination, the veteran was found to have full range of motion in all joints of the lower extremities without pain. Tenderness over the left temporomandibular joint was noted; however, Dr. Leib attributed that to a functional etiology and doubted that it represented any relationship to systemic arthritis. Dr. Leib reported in December 1980 that the veteran had continued chest pain, left jaw pain, aching in his hands and occasionally in his feet and knees. He was taking Naprosyn and Ascriptin. Dr. Leib reported, “Examination today is totally unremarkable.” A laboratory test report showed “negative rheumatoid factor, ANA and Sed. rate of 6.” Dr. Leib noted that a VA rheumatologist felt that the veteran also had fibrositis. The assessment was fibrositis syndrome with functional temporomandibular dysfunction and pes planus. In December 1980, the RO received private medical reports from John Dickard, M.D., indicating that he had seen the veteran since September 1979 and that the veteran's current symptoms were radiating back and chest pain, jaw pain leading to ear aches, and foot and leg pains due to bilateral pes planus. Arthritis was not reported. In April 1981 the veteran underwent a VA examination. He reported radiating chest and back pains, jaw and ear pains for prolonged periods, hand joint, hip, knee, and lower back pains along with constant pain and discomfort in his feet and legs and a variety of other symptoms. The relevant diagnoses were: Rheumatoid arthritis by history, without evident deformity or dysfunction thereto at this examination; fibrositis; and, history of arthralgia. In December 1981 the veteran underwent VA psychological and psychiatric evaluations for diagnostic assistance for his arthritis. The psychiatrist reported that there was no evidence of gross intellectual impairment or psychotic manifestations and referred the veteran for psychological evaluation. The clinical psychologist noted features of depression and stress and recommended psychotherapeutic intervention. In a rating decision of April 1982, the RO reclassified the veteran’s disability as “psychological musculoskeletal reaction,” and assigned a 10 percent rating effective from June 6, 1980. In August 1982 the veteran submitted a claim for service connection for “fibrositis as being one in the same as my S/C rheumatoid arthritis condition.” He also submitted private treatment records showing treatment at various times during 1973, 1974, and 1975, by a Dr. Ludewig, chiefly for chest pains. An August 1973 letter from Dr. Ludewig indicated that a blood test for Collagen diseases associated with arthritis was negative. In September 1982 the RO received a letter from Dr. Leib who reported that he felt that earlier diagnoses of rheumatoid arthritis had been made in error. He felt that the veteran had fibrositis, a disease of long duration which causes pain, but which never becomes more serious. He classified the veteran’s condition as a musculoskeletal disorder of unknown etiology. In January 1983 the veteran underwent VA examination. He reported pain in his neck and shoulders, pain and swelling in the right ring finger joint, severe pain stiffness and swelling of the left wrist, elbow and shoulder accompanied by weakness. There was more pain and stiffness in the fingers in cold weather. He reported chest, back, jaw, ear, hip, and other joint pains occurring at varying times and duration. The examiner made diagnoses concerning foot conditions only. In March 1984 the veteran underwent VA examination. He reported continued pain similar to symptoms reported in the January 1983 report. He also noted that due to side effects, he had to discontinue taking medication for fibrositis. An attached psychiatric examination report indicates that the veteran’s previous history was reviewed and that a diagnosis of psycho-physiological musculoskeletal reaction was made on Axis I. Diagnosis on Axis III was “rule out rheumatoid arthritis by history.” In February 1990 the RO received a letter from Christopher Reid, MD. According to Dr. Reid, the veterans January 1990 symptoms of chronic arthritis were consistent with soft tissue rheumatism. X-rays were positive for the left thumb only. In May 1990 the veteran submitted a request for an increased evaluation indicating that he had received private treatment from 1979 to the present by Drs. John Dickard, Edward Leib, Christopher Reid, and Pamela Reinhardt. In a May 1990 letter, Dr. Leib noted that the veteran’s prior diagnosis of fibrositis was made “for lack of a better diagnosis.” The veteran’s symptoms did not fit the typical pattern; however, neither did the symptoms fit any other known pattern. He added: “It has never been clear that that is the appropriate diagnosis and a degenerative condition such as you have developed in the thumb may be associated with your original arthritic problem.” In June 1990 the RO also received a letter from Pamela Reinhardt, MD. She indicated that the veteran had complained of increasing pain in his left thumb since 1987. He also had significant pain of the fourth proximal interphalangeal (PIP) joint, right greater than left. Appreciable swelling about the left first CMC joint was noted with moderate localized tenderness. Also received in June 1990 was a July 1980 letter from Dr. John Dickard indicating that he was currently treating the veteran for painful joints which were often stiff and slightly swollen. In July 1990 to RO received reports dated from 1980 to 1988 indicating that Dr. Leib examined the veteran at various times. Continued symptoms of pain were noted. In September 1988 mild crepitation of the left CMC joint was noted. The veteran had bilateral hand pain and possible mild right carpal tunnel syndrome was reported. The veteran received an injection of Aristospan in his left CMC joint. In July 1990 the veteran underwent a VA general medical examination. The examiner noted that the veteran presented an array of vague, nondescript, symptoms, chest pain, back pain, temporomandibular junction syndrome, pain in the hands, particularly in the left MP joint and in the thenar space. Knee, hip and other joint pains were reported. Upon examination, moderate tenderness was noted at the left MP joint. The left thumb was limited in motion. The relevant diagnoses were: Degenerative joint disease of the left MP joint, possibly secondary to trauma. Rheumatoid arthritis cannot be clearly identified as the cause. Other joints are also not involved with rheumatoid arthritis; psycho- physiological musculoskeletal reaction, no relationship to organic condition, symptoms indicate the presence of marked functional overlay. Patient is to be examined by psychiatrist; degenerative joint disease of the right hand, probably due to trauma; vague pains of multiple joints with no abnormalities, dysfunction, or disability. The examiner noted that the veteran’s “litany of symptoms” were excessive and disproportionate to the degree of positive findings. Upon VA psychiatric evaluation in July 1990, the examiner reviewed the entire claims file and found that X-rays manifested arthritic-like changes. No diagnosis was made on Axis I. On Axis III, the diagnosis was “arthritic-like changes with arthritic-like illness.” Records reflect that in December 1990 the veteran underwent surgery for left carpometacarpal (CMC) joint fusion. In January 1991 the RO received the veteran’s notice of disagreement and statement indicating that his arthritis had been present since Army days and was not limited to his left hand. He requested a diagnosis of “non-specific arthritis of the body.” In May 1991 the veteran submitted his substantive appeal and also submitted a May 1990 letter from Dr. Reid indicating complaints of pain in the left 1st CMC joint. Dr. Reid found appreciable swelling around the left 1st CMC joint with tenderness. X-rays showed moderately severe degenerative changes of the left 1st CMC joint. Arthrodesis of the joint was recommended. Also received by the RO in May 1991 was a letter from a registered nurse indicating that she had observed some of the veteran's symptoms and limitations due to pain, stiffness and weakening of both hands and both feet over the years since shortly after he left the Army. Several lay witnesses also submitted letters to the effect that they had known the veteran since he was in the Army or shortly afterward and that the veteran's arthritis symptoms seemed to have been consistent throughout the years. In March 1992 the RO received a written memorandum from the veteran’s representative noting that service connection for the veteran’s rheumatoid arthritis is protected by statute. An independent medical opinion was requested on the question of whether fibromuscular rheumatism was part of the service connected disability. In October 1992, the Board remanded the appeal to the RO for an orthopedic examination and a diagnosis concerning the claimed multiple joint disorder. In this remand, the Board found that the grant of service connection for rheumatoid arthritis of multiple joints extended to other joints, not just to the left hand and thumb. The Board also found that service connection for rheumatoid arthritis and for psycho- physiological musculoskeletal reaction were protected by statute from severance. In October 1994, the RO received VA inpatient and outpatient treatment records indicating treatment during the 1980's and 1990's for various health problems. Numerous treatment reports during the 1980's and 1990's indicated joint pain. A February 1980 treatment report indicated arthritis and feet pain. A June 1980 X-ray report shows that both hands and major portion of the wrist joints were normal. Also noted was minimal left convex scoliosis of the lumbar spine with normal disc spaces and vertebral appendages and no evidence of fracture, dislocation, or other significant bone or joint abnormality. In March 1991 X-rays of the left thumb showed sclerosis at the carpometacarpal joint of the 1st digit of the left hand showing no significant change from the previous examination. In April 1991 X-rays of the left thumb showed mild “osteopenic” changes and status post metacarpal phalangeal (MP) joint fusion of the left third digit and sclerosis at the CMC joint of the first digit of the left hand. A September 1991 X-ray report noted no obvious bony or joint abnormalities and no soft tissue calcifications. The impression was a grossly normal right hand and arthritis in the left and right bone unions. A September 1991 Neuro- diagnostic laboratory report indicated no evidence for carpal tunnel syndrome at that time. In October 1994, the veteran indicated that anti-inflammatory medications had affected his stomach and digestive system. In July 1995, the RO received a letter from the veteran indicating concern with the number of X-rays that had been taken. He indicated that he was exposed to over two dozen X-rays on one day. In a July 1995 letter, the veteran's representative requested an independent medical opinion from a private rheumatologist. The representative also indicated that the veteran's medications had resulted in a secondary gastrointestinal complication and requested service connection for that disorder. X-rays taken in August 1995 showed minimal degenerative changes involving the hips, bilaterally. The pelvis bones were unremarkable. There were very few degenerative changes in either hand. There were a few small subcortical cysts in the distal end of the first metacarpal, bilaterally. Both feet showed no significant findings and a degenerative change was extremely minimal and appeared to be limited to the first metatarsal head, bilaterally. Both knees were normal and showed no degenerative disease. The lumbosacral spine showed no apparent degenerative changes. The disc spaces were normal. There was no spondylolysis or spondylolisthesis. A phlebolith in the right side of the pelvis near the midline was noted. The examiner’s impression was that the areas studied were free of any significant disease. There were minimal degenerative changes in the bilateral first metatarsal and metacarpal areas and in both hips. The X-rays of the bilateral hands showed status post fusion of the left first CMC joint, otherwise unremarkable hands. An August 1995 rheumatology clinical treatment report notes that the veteran had degenerative joint disease of the first CMC joint of the left hand. The X-rays of the hands did not show degenerative joint disease elsewhere. A letter from a private physician, Fern E. Likhite, M.D., indicated that the veteran had been treated by Drs. Dickard, Leib, and himself during the 1970's and 1980's. Dr. Likhite indicated that the veteran had been treated for tendinitis in 1986 and that the veteran was intolerant of Motrin and Naprosyn, which caused stomach distress, and that Clinoril caused stomach pain and burning. Dr. Likhite reported that in October 1988 the veteran had been taking Ecotrin for musculoskeletal symptoms and developed stomach distress for which he was treated with Zantac. The veteran also underwent an upper endoscopy for epigastric distress. He was treated with Reglan and Gaviscon and Carafate. In July 1993 the veteran developed back pain and was treated with Clinoril and Ecotrin but developed stomach distress for which he was given Carafate and Pepcid. The veteran currently had heartburn for which he took Carafate and antacids. In July 1997 the Board requested an independent medical opinion to determine whether ongoing complaints of joint pain, along with physical, X-ray, and laboratory findings represented a current chronic musculoskeletal disorder and, if so, what would the most appropriate diagnosis be. The independent medical expert was also asked to furnish an opinion as to whether it is at least as likely as not that the symptoms demonstrated during service and/or during the first year after service represented on the onset of a current, chronic musculoskeletal disorder. In September 1997, the Board received the independent medical opinion from a Fellow of the American College of Rheumatology. This expert reviewed the history of the veteran's musculoskeletal symptoms dating back to 1971. He felt that at no time did the veteran have the criteria for a diagnosis of “fibromyalgia.” He also reported that at no time did the veteran have objective evidence of rheumatoid arthritis. He noted that 2 out of 3 psychological evaluators suggested a psychological overlay to the veteran's symptoms and that these opinions were supported by MMPI (Minnesota Multiphasic Personality Inventory). The expert reported that there was objective evidence of osteoarthritis in the CMC joint of the left thumb in 1987. X-rays in August 1995 showed mild osteoarthritis in the hips. The veteran has also had pes planus since military service. The veteran had no other chronic musculoskeletal disorders despite 25 years of symptoms. II. Legal Analysis The record shows that the veteran's claim is well grounded, meaning that it is plausible. The Board finds that all relevant evidence for equitable disposition of this claim has been obtained and that no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). In order to establish service connection for a disability, the evidence must show it resulted from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1137 (West 1991); 38 C.F.R. § 3.303 (1996). A chronic disease will be considered to have been incurred in service when manifested to a degree of 10 percent or more within 1 year from the date of separation from active service. 38 C.F.R. § 3.307 (1996). Arthritis shall be considered a chronic disease within the meaning of 38 C.F.R. § 3.307. 38 C.F.R. § 3.309 (1996). As noted in the introduction, in October 1992, the Board found that the grant of service connection for rheumatoid arthritis of multiple joints extended to other joints, not just to the left hand and thumb. The Board also found that service connection for rheumatoid arthritis and for psycho- physiological musculoskeletal reaction were protected by statute from severance. Hence those issues are not for review. However, rheumatoid arthritis is not demonstrated in any joint at issue, so the fact that it is considered service-connected wherever it might appear does not benefit the veteran at this time. An independent medical expert determined that, based on the entire history of the veteran’s symptoms, the veteran's current diagnoses are osteoarthritis of the left thumb, CMC joint, and both hips, and pes planus. The examiner also found that the onset of osteoarthritis of the left thumb and CMC joint was 1987. The onset of osteoarthritis of the hips was 1995. There was no connection found between osteoarthritis of these joints and other various disorders reported throughout the past. The Board notes that the independent medical examiner considered the lengthy history of various diagnoses and the evidence to the contrary in making this independent diagnosis and the Board finds this persuasive. After consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim for service connection for generalized arthritis. Because the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for generalized arthritis is denied. REMAND The veteran indicated that fusion of his left thumb has impacted his productivity at his job working with small and intricate electric meters and wiring. He has reported increased pain and limitation of motion. When evidence of underlying pathology is adduced that seemingly accounts for problems with pain, consideration of the functional loss due to that pain must be undertaken. 38 C.F.R. § 4.40 (1996). Specifically, any examination of musculoskeletal disability done for rating purposes must include certain findings and conclusions that heretofore have not been included in the VA examinations of record. In the case of in DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Veterans Appeals pointed out that such examinations must include consideration of all the factors identified in 38 C.F.R. §§ 4.40, 4.45. Additionally, because criteria upon which a rating for the left hand and left thumb may be based or cast in terms of limitation of motion, any functional loss found must be expressed in terms of the degree of additional range of motion loss, whether due to pain on use, incoordination, weakness, fatigability, or pain during flare-ups, and etc. DeLuca, supra. Accordingly, in light of the veteran's complaints of pain, an addendum to the most recent VA examination is requested which includes a medical determination as to whether the left hand and thumb exhibit pain with use, weakened movement, excess fatigability, incoordination, or any other disabling symptom, and the determinations should be expressed in terms of range of motion loss beyond that clinically demonstrated. The claim for an increased rating is consequently remanded for the following actions: 1. The veteran should be given an opportunity to supplement the record and/or identify all sources of treatment for the disability at issue. The RO should assist the veteran in this endeavor by seeking copies of all records from the sources identified by the veteran, which are not currently on file. 2. The examiner should then review the claims file, and provide findings that take into account all functional impairments identified in §§ 4.40, 4.45, and 4.59, including pain on use, incoordination, weakness, fatigability, and abnormal movements. Each such functional disability should be expressed in terms of additional range of motion loss beyond that which is clinically observed. See DeLuca, supra. All findings, opinions, and bases therefore, should be set forth in detail. If warranted, the veteran should be afforded a VA orthopedic examination. 3. The RO should undertake any additional developments suggested by the examiners findings and opinions or lack thereof. If the benefit sought is denied, a supplemental statement of the case should be issued. The veteran and his representative should be given an opportunity to respond to the supplemental statement of the case. Thereafter, the claims file should be returned to the Board for further appellate review. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. 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. 1997) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the RO 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. E. Day Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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) (1997). - 2 -