Citation Nr: 9814330	
Decision Date: 05/07/98    Archive Date: 05/20/98

DOCKET NO.  97-00 069A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to an increased evaluation for post-traumatic 
spondylitis with disc space narrowing of the lumbosacral 
spine, currently evaluated as 40 percent disabling.


REPRESENTATION

Appellant represented by:	American Ex-Prisoners of War, 
Inc.


WITNESSES AT HEARING ON APPEAL

Appellant and spouse





ATTORNEY FOR THE BOARD

Alice A. Booher, Counsel


INTRODUCTION

The veteran had active service from March 1943 to November 
1945, and was Prisoner of War (POW) of the German Government 
from February 1944 to April 1945.

The current appeal is brought from rating actions taken by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Petersburg.

The veteran and his wife provided testimony before a Hearing 
Officer at the RO in October 1995, a transcript of which is 
of record.  [Tr.]

Service connection is also in effect for history of irritable 
bowel syndrome and hemorrhoids, each evaluated as 
noncompensably disabling.  

The current appeal initially included the issue of 
entitlement to an increased rating for the veteran’s service-
connected psychiatric disorder characterized as anxiety 
neurosis with post-traumatic stress disorder (PTSD).  
However, during the course of this appeal, the RO increased 
the rating assigned for the psychiatric disability from 30 to 
100 percent, which is the maximum available.  

With respect to the issue presently on appeal, the RO also 
increased the rating assigned for post-traumatic spondylitis 
with disc space narrowing of the lumbosacral spine from 20 to 
40 percent disabling which is not the maximum assignable.  
Accordingly, pursuant to AB v. Brown, 6 Vet. App. 35 (1993), 
and as identified on the front page of this decision, while 
the latter issue remains in appellate status, the former 
issue does not.  

The collateral then pending issue of entitlement to a total 
rating based on individual unemployability was rendered moot 
by the grant of the 100 percent schedular rating for his 
PTSD.

At one point during the pending appeal, the veteran also 
raised the collateral issues of entitlement to educational 
benefits and entitlement to special monthly compensation 
based on the need for regular aid and attendance or 
housebound status.  

In the rating action by the RO in February 1996, in view of 
the grant of the increased ratings as noted above, the RO 
collaterally recognized the veteran’s eligibility for Chapter 
35 benefits, and that issue is not on appeal.  

The veteran has not indicated any intention to pursue an 
appeal with regard to the special monthly compensation claim 
and it is not part of the current appeal.  Nonetheless, the 
Board also notes that during the course of the appeal, the 
veteran raised various issues with regard to disabilities 
claimed to be a result of his POW experience including some 
which are included in the special revised regulations with 
regard to presumptive service connection (i.e., alleged 
ischemic heart disease as a result of beriberi, disabilities 
due to malnutrition, peripheral disabilities due to 
frostbite, etc.).  These have been partially addressed in VA 
examination and RO adjudication although further adjudication 
appears to be necessary.  

Moreover, it remains unclear whether these are in any way 
related to current service-connected disabilities which are 
not part of the current appeal, i.e., the veteran’s 
gastrointestinal disability, in which case, increased 
evaluations might be warranted.  In the event that any of 
these disorders, none of which are under current review on 
appeal, should also become service-connected, [and given the 
action taken by the Board herein with regard to an increased 
rating for his back disorder], there is a possibility that 
they, in coordination with the other already service-
connected disabilities, would establish an entirely different 
picture with regard to entitlement to special monthly 
compensation benefits under one or more theories.  

Accordingly, although this is technically neither a part of 
the current appeal nor a component of the veteran’s issue on 
appeal, pursuant to Godfrey v. Brown, 7 Vet. App. 398 (1996), 
the Board refers these questions back to the RO for 
appropriate review and consideration in that and all other 
pertinent contexts and subject, of course, to subsequent and 
separate appellate review.

On the Board’s own Motion, in March 1997, the Acting Chairman 
of the Board, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 
1991) and 38 C.F.R. § 20.900(c), (1997) advanced the case on 
the docket due to cause to include administrative error.  The 
docket number now assigned restores the case, to the extent 
practicable, to the place it would have occupied on the 
docket had the administrative error not occurred.


CONTENTIONS OF APPELLANT ON APPEAL

In substance, it is argued that the veteran’s back disability 
is more severely disabling than reflected in the current 
rating.


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 file.  

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 evidence is in favor of an increased 
evaluation of 60 percent for post-traumatic spondylitis with 
disc space narrowing of the lumbosacral spine


FINDING OF FACT

Residuals of low back trauma are manifested by pronounced 
intervertebral disc syndrome.  


CONCLUSION OF LAW

The criteria for an increased evaluation of 60 percent for 
post-traumatic spondylitis with disc space narrowing of the 
lumbosacral spine are met.  38 U.S.C.A. §§ 1155, 5107 (West 
1991);  38 C.F.R. §§ 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, 
Diagnostic Code 5293 (1997). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

In general, a veteran's allegation of increased disability 
establishes a well-grounded claim.  Proscelle v. Derwinski, 2 
Vet. App. 269 (1992).  During the appellate period, rating 
action has been taken by the RO which increased the rating 
assigned for the disability at issue.  The Board now finds 
that the facts relevant to the issue on appeal have been 
sufficiently developed for an equitable disposition thereof; 
and, accordingly, the statutory obligation of VA to assist 
the veteran in the development of his claim has been 
satisfied in accordance with 38 U.S.C.A. § 5107(a).

Disability evaluations are determined by the application of a 
schedule of ratings which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  
Separate diagnostic codes identify the various disabilities.  
Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.  38 C.F.R. § 4.7.  

With respect to conclusions reached on any given medical 
issue to include a determination with regard to such things 
as degree or extent of functional impairment of a disability, 
etc., the United States Court of Veterans Appeals (the Court) 
has repeatedly admonished that VA cannot substitute its own 
judgment or opinion for that of a medical expert.  See, i.e., 
Colvin v. Derwinski, 1 Vet. App. 761 (1991).

The Court has also held that a determination with regard to 
the assignment of specific ratings must be made upon a review 
of the entire evidentiary record including thorough and 
comprehensive examinations that are representative of the 
entire clinical picture.  Brown v. Brown, 5 Vet. App. 413 
(1993).  

The Board has also considered all regulatory provisions which 
are potentially applicable through the assertions and issues 
raised in the evidence of record as required by Schafrath v. 
Derwinski, 1 Vet. App. 589 (1991).  Where entitlement to 
compensation has already been established and an increase in 
the disability rating is at issue, the present level of 
disability is of primary concern.  Although a rating 
specialist is directed to review the recorded history of a 
disability in order to make a more accurate evaluation, see 
38 C.F.R. § 4.2, the regulations do not give past medical 
reports precedence over current findings.  Francisco v. 
Brown, 7 Vet. App. 55 (1994).  The Court has held that when a 
diagnostic code provides for compensation based solely upon 
limitation of motion, the provisions of 38 C.F.R. 
§§ 4.40, 4.45 must be considered.  The examinations upon 
which the rating decisions are based must adequately portray 
the extent of functional loss due to pain “on use or due to 
flare-ups.”  DeLuca v. Brown, 8 Vet. App. 206 (1995).  

In pertinent part, 38 C.F.R. § 4.40 provides:

Disability of the musculoskeletal system 
is primarily the inability due to damage 
or infection in parts of the system, to 
perform the normal working movements of 
the body with normal excursion, strength, 
speed, coordination and endurance.  

It is essential that the examination on 
which ratings are based adequately 
portray the anatomical damage, and the 
functional loss, with respect to all 
these elements.  The functional loss may 
be due to absence of part, or all, of the 
necessary bones, joints and muscles, or 
associated structures, or to deformity, 
adhesions, defective innervation, or 
other pathology, or it may be due to 
pain, supported by adequate pathology and 
evidenced by the visible behavior of the 
claimant undertaking the motion.  
Weakness is as important as limitation of 
motion, and a part which becomes painful 
on use must be regarded as seriously 
disabled.  A little used part of the 
musculoskeletal system may be expected to 
show evidence of disuse, either through 
atrophy, the condition of the skin, 
absence of normal callosity or the like.

38 C.F.R. § 4.45 provides:

As regards the joints the factors of 
disability reside in reduction of their 
normal excursion of movements in 
different planes. Inquiry will be 
directed to these considerations:

(a) Less movement than normal (due to 
ankylosis, limitation or blocking, 
adhesions, tendon-tie-up, contracted 
scars, etc.).

(b) More movement than normal (from flail 
joint, resections, nonunion of fracture, 
relaxation of ligaments, etc.).

(c) Weakened movement (due to muscle 
injury, disease or injury of peripheral 
nerves, divided or lengthened tendons, 
etc.).

(d) Excess fatigability.

(e) Incoordination, impaired ability to 
execute skilled movements smoothly.

(f) Pain on movement, swelling, deformity 
or atrophy of disuse.  Instability of 
station, disturbance of locomotion, 
interference with sitting, standing and 
weight-bearing are related 
considerations.  For the purpose of 
rating disability from arthritis, the 
shoulder, elbow, wrist, hip, knee, and 
ankle are considered major joints; 
multiple involvement of the 
interphalangeal, metacarpal and carpal 
joints of the upper extremities, the 
interphalangeal, metatarsal and tarsal 
joints of the lower extremities, the 
cervical vertebrae, the dorsal vertebrae, 
and the lumbar vertebrae, are considered 
groups of minor joints, ratable on a 
parity with major joints.  The 
lumbosacral articulation and both 
sacroiliac joints are considered to be a 
group of minor joints, ratable on 
disturbance of lumbar spine functions.

The Court also held in Hicks v. Brown, 8 Vet. App. 417 (1995) 
that once degenerative arthritis is established by X-ray 
evidence, there are three circumstances under which 
compensation may be available for service-connected 
degenerative changes: (1) where limitation of motion of a 
joint or joints is objectively confirmed by findings such as 
swelling, muscle spasm or satisfactory evidence of painful 
motion, and that limitation of motion meets the criteria in 
the diagnostic code or codes applicable to the joint or 
joints involved, the corresponding rating will be assigned 
thereunder; (2) where the objectively confirmed limitation of 
motion is not of sufficient degree to warrant a compensable 
rating under the code or codes applicable to the joint or 
joints involved, a rating of 10 percent will be assigned for 
each major joint or joints affected “to be combined, not 
added”; and (3) where there is no limitation of motion, a 
rating of 10 percent or 20 percent, depending upon the degree 
of incapacity, may still be assigned if there is X-ray 
evidence of the involvement of 2 or more major joints or 2 or 
more minor joint groups.  

In addition, Diagnostic Code 5003 is to be read in 
conjunction with 38 C.F.R. § 4.59, and it is complemented by 
a separate regulation, 38 C.F.R. § 4.40, which relates to 
pain in the musculoskeletal system.  Finally, the Court noted 
that “Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful 
motion of a major joint or groups caused by degenerative 
arthritis that is established by X-ray evidence to be limited 
motion even though range of motion may be possible beyond the 
point when pain sets in”. 

Evaluations are assignable for lumbosacral strain at zero 
percent when there are subjective symptoms only; a 10 percent 
rating is assignable with characteristic pain on motion.  A 
20 percent rating is assignable when there is muscle spasm on 
extreme forward bending, loss of lateral spine motion, 
unilateral, in standing position.  A 40 percent rating is 
assignable when severe, with listing of the whole spine to 
the opposite side, positive Goldthwait's sign, marked 
limitation of forward bending in standing position, loss of 
lateral motion with osteoarthritic changes or narrowing or 
irregularity of joint space, or some of the above with 
abnormal mobility on forced motion.  38 C.F.R. § 4.71a, 
Diagnostic Code 5295.  

Alternatively, a rating might be made on the basis of 
limitation of motion of the lumbar spine with the assignment 
of a 10 percent disabling when slight, 20 percent when 
moderate, or 40 percent when severe.  38 C.F.R. § 4.71a, 
Diagnostic Code 5292.  

Another alternative rating [under which the RO has assigned 
the current 20 percent rating] may be pursuant to Diagnostic 
Code 5293, intervertebral disc syndrome, when zero percent is 
warranted when postoperative cured; a 10 percent rating is 
assignable when mild; a 20 percent rating is assignable when 
moderate with recurring attacks; a 40 percent rating is 
assignable when severe with recurring attacks and 
intermittent relief; and a 60 percent rating is assignable 
when pronounced with persistent symptoms compatible with 
sciatic neuropathy with characteristic pain and demonstrable 
muscle spasm, absent ankle jerk or other neurological 
findings appropriate to the site of the diseased disc, with 
little intermittent relief.  

There appear to be no other potentially applicable Diagnostic 
Codes which would provide for a higher rating other than 
those which contemplate ankylosis.  In that regard, under 
Diagnostic Code 5289, when there is favorable ankylosis of 
the lumbar spine, a 40 percent rating is assignable; when the 
ankylosis is unfavorable, a 50 percent rating is assignable.  

Further, under Diagnostic Code 5286, when there is complete 
bony fixation of the spine at a favorable angle, a 60 percent 
rating is assignable; or at an unfavorable angle with marked 
deformity and involvement of major joints (Marie-Strumpell 
type) or without other joint involvement (Bechterew type), a 
100 percent rating is assignable.

Under diagnostic code 5285 a 60 percent evaluation may be 
assigned for residuals of a fracture of the vertebra without 
cord involvement, abnormal mobility requiring neck brace 
(jury mast).  A 100 percent evaluation may be assigned for 
residuals of a fracture of a vertebra with cord involvement, 
bedridden, or requiring long leg braces.

A pertinent General Counsel Opinion [VAPGCPREC 36-97 (O.G.C. 
Prec. 36-97)] addressed the issue of applicability of 38 
C.F.R. §§ 4.40, 4.45 and 3.321(B)(1) in rating disabilities 
under Diagnostic Code 5293.  In essence, the opinion noted 
that it was essential in rating disabilities of the 
musculoskeletal system that the examination on which the 
ratings were based adequately portray any functional loss 
which may be due to pain.  While § 4.40 did not require a 
separate rating for pain, the impact of pain on movement must 
be considered.  See Spurgeon v Brown, 10 Vet. App. 194, 196 
(1997).  It further reflected upon the mandates of § 4.45.  
See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  The 
opinion concluded that under Code 5293, which involved loss 
of range of motion because the nerve defects and resulting 
pain associated with injury to the sciatic nerve may cause 
limitation of motion, pursuant to Johnson, the provisions of 
§§ 4.40 and 4.45 must be considered when a disability was 
evaluated thereunder.  And when a veteran received less than 
the maximum under Code 5293, based upon symptomatology which 
included limitation of motion, consideration must be given to 
the extent of the disability under §§ 4.40 and 4.45 even 
though the rating corresponds to the maximum rating under 
another diagnostic code pertaining to limitation of motion.  
It further stated that § 3.321(b)(1) had to be considered 
when there was evidence of exceptional or unusual 
circumstances indicating that the rating schedule, including 
§§ 4.40, 4.45 and 4.71a might be inadequate to compensate for 
the average impairment of earning capacity due to 
intervertebral disc syndrome regardless of the act that the 
veteran may have received the maximum schedular rating under 
a Code based on limitation of motion.

Factual Background

The veteran’s back injury was a result of his airplane being 
shot down over Anzio, and his parachuting hard to the ground 
at which time he was taken as a POW and during which time he 
reportedly received no relevant treatment.    

Outpatient records are in the file showing that the veteran 
has been seen for various complaints, some of which relate to 
his back problems.

A statement is of record dated in 1993 from the veteran’s 
wife with regard to his back and other disabilities as they 
have impacted on his life and work.

At the time of a MRI evaluation of the lumbar spine in 
December 1993, the veteran was complaining of recently 
increased and severe pain.  At the L-2/L-3 level the MRI 
showed a mild degree of spinal stenosis; facet degeneration 
of the ligamentum flavum hypertrophy; and circumferential 
disc bulging without significant thecal sac or nerve root 
compression.  At the L-3/L-4 level, there was a central disc 
herniation into the vertebral body of L-3, consistent with a 
Schmorl’s node; no focal ventral disc herniation; and a mild 
degree of spinal stenosis.  At the L-4/L-5 level, there was 
Grade I spondylolisthesis and posterior discogenic narrowing; 
ventral disc protrusion was shown, consistent with broad-
based ventral disc herniation; there was moderately severe 
spinal stenosis with marked lateral and posterolateral 
narrowing of the thecal sac secondary to marked facet joint 
hypertrophy and ligamentum flavum hypertrophy.  A trefoil 
configuration of the thecal sac was also noted at that level.

On VA orthopedic examination in July 1994, the veteran 
reported having severe back pain which caused him to have a 
great deal of difficulty sleeping.  On examination, he had 
severely limited range of motion of the lower portion of the 
spine.  His muscles paraspinally to the lumbar spine were 
rigid and fixed, especially on the left side.  The sacroiliac 
joint and ischial joint areas were not tender.  He had 
positive Lasegue’s sign to 45 degrees.  He had positive Ely’s 
sign.  Babinski was not present.  He had negative Fabere 
sign.  He was unable to perform increased intraspinal 
pressure tests without creating excessive pain.  The examiner 
noted that he had postural abnormalities and flat lumbar 
spine area, fixed deformities, with loss of normal lumbar 
curve.  Range of motion was forward flexion to 45 degrees 
only; backward extension was to 15 degrees; lateral flexion 
to the left was 20 degrees while lateral flexion to the right 
was 15 degrees.  Rotation to the left was 20 degrees and to 
the right was to 15 degrees.  There was objective evidence of 
pain with facial grimacing on all spinal motions, even those 
motions of a minimal nature.  

Pertinent diagnoses include severe spinal stenosis of L-4/L-
5; degenerative changes in the lumbar spine; grade I 
spondylolisthesis; ventral and right lateral disc herniation 
of L-5/S-1; spinal stenosis, mild at L-2/L-4. 

When examined by VA in February 1995, the veteran complained 
of chronic severe low back pain syndrome.  He walked to the 
examining room with a shuffle, and when asked to flex the 
lumbosacral spine, rotate or extend it, he was unable to do 
so and the examiner noted that one could not force the 
maneuvers.  Another VA neurological examiner noted that there 
was tenderness of the lower back region with diminished 
extension ability in the hips.  He had reflexes 1+, absent 
Achilles tendon and plantars were flexor.  The gait was 
ataxic with poor tandem,.  There was positive Romberg with 
diminution of gait with eyes closed.  Certain physiologic 
neurological changes in other areas were also noted.

Low back X-rays showed grade I spondylolisthesis of L-4 on L-
5 with associated bilateral pars defect of L-5 and loss of 
disc space at L-4/L-5.  Further degenerative changes at L-
5/S-1 with loss of disc space were present and there was 
partial assimilation of L-5 onto the sacrum.  Diagnoses were 
Grade I spondylolisthesis with bilateral spondylolysis at L-
4/L-5 with associated degenerative disease and loss of disc 
space at L-5/S-1.

The veteran and his wife testified at a personal hearing at 
the RO in October 1995.  They described his back problems in 
detail, stating that the back problems and pain had become 
unbearable.  Tr. at 11.  The veteran stated that he is now 
trying to do physical therapy for an hour or an hour and a 
half twice a week under medical supervision, but the only 
thing that really helped was laying on a huge heating pad 
before physical therapy for 20 minutes which helped relax, 
and that as soon as the pad was taken away, the pain came 
back. Tr. at 11.  He had tried exercises along with the heat 
but was unable to do them and it had not done him much good.  
Tr. at 11-12.  He had had a bad history with adverse impact 
from pain medications in that they made him drowsy and he 
could not get out in the sun, which was difficult in Florida, 
so he had reverted to Tylenol which did not help much.  Tr. 
at 12.  

The veteran had also been using a back brace daily but this 
too had not been particularly helpful.  Tr. at 12-13.  He and 
his wife indicated that he was unable to walk, sit or do 
anything that required movement.  They stated that they had 
been told that they had been given no hope for the situation 
ever being corrected, although they lived on hope.  Tr. at 
12-14.  He stated that there were virtually no movements he 
could do, even when in bed and that on occasions when he had 
muscle spasms, he would have to quit no matter what he was 
doing.  Tr. at 15-16.  He described his prior employment and 
stated that he was now unable to work as a result of the 
limitations placed on him by his back.  Tr. at 16. 

Analysis

The evidence of record which includes extensive clinical 
evaluations, X-rays and MRI studies, as well as the veteran 
and his wife’s testimony, appear to provide the Board with an 
ample evidentiary basis for rating the veteran’s back 
disability.  

It is clear that the veteran’s inservice trauma to the low 
back and subsequent lack of care as a POW has had serious 
consequences.  As for current findings, while the MRI, done 
at the time of increased pain in 1993, showed only mild 
spinal stenosis at several vertebral levels, there was also 
evidence of central and ventral herniations at multiple 
levels.  

And more importantly, at the L-4/L-5 level the spinal 
stenosis was significantly worse, of a moderately severe 
degree overall, with additional signs of marked lateral and 
posterolateral narrowing of the thecal sac secondary to 
marked facet joint and ligamentum flavum hypertrophy.  These 
and the other MRI findings are entirely consistent with the 
X-ray findings on VA examinations in 1994 and 1995 reflective 
of both the stenosis and herniation.  

As for movements, the VA examination in 1994 did show some 
limited ability to undertake certain motions (i.e., forward 
flexion to 45 degrees, backward extension to 15 degrees; 
lateral flexion to the left of 20 degrees and to the right of 
15 degrees, and rotation to the left was 20 degrees while 
rotation to the right was to 15 degrees).  However, these 
were all done with facial grimacing reflecting of pain, which 
must, pursuant to the aforementioned regulations and judicial 
mandates, be considered in the rating equation.  




It is significant, therefore, to note that at the time of the 
subsequent VA 1995 examination, the capacity to render these 
motions, already minimal in nature, had diminished even 
further.  The veteran and his wife’s testimony in that regard 
is helpful to delineating the actual impairment on a day to 
day basis.  He also has demonstrable muscle spasm and other 
associated symptoms including collateral evidence of the 
neurological impact of this bony and muscular deterioration 
such as the confirmed absence of Achilles tendon reflexes.  

In assessing the veteran’s low back disability under the Code 
5293, the Board finds that the veteran clearly has symptoms 
which are reflective of no less than pronounced 
symptomatology with symptoms compatible with sciatic 
neuropathy and characteristic pain and demonstrable muscle 
spasm, absent ankle jerk, and that there is little 
intermittent relief, thereby warranting assignment of the 
maximum schedular evaluation of 60 percent rating under Code 
5293.  

The evidentiary record clearly shows that the veteran does 
not have complete bony fixation of the spine or residuals of 
a fracture of a vertebra with cord involvement which would 
warrant a grant of a 100 percent evaluation under diagnostic 
codes 5286 and 5285.  

The Board has also considered the criteria under 38 C.F.R. 
§ 4.40, 4.45, and 4.59, as well as the tenets of the earlier 
cited General Counsel’s opinion; however, no clinical 
objective pathology of functional loss due to pain, 
limitation of motion, weakness, etc., has been presented upon 
which to predicate a grant of a rating in excess of the level 
of impairment contemplated in the 60 percent evaluation 
granted on appeal.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. 
§§ 4.2, 4.7, 4.40, 4.45, 4.59, 4.71, Diagnostic Code 5293.



ORDER

An increased evaluation of 60 percent for is warranted for 
post-traumatic spondylitis with disc space narrowing, 
lumbosacral spine, subject to the regulatory criteria 
relating to the payment of monetary awards.


		
	RONALD R. BOSCH
	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 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.
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