BVA9402996 DOCKET NO. 91-46 359 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased evaluation for hemorrhoids, rated as 30 percent disabling. 2. Entitlement to an increased evaluation for prostatitis with urethritis, rated as 20 percent disabling. 3. Entitlement to an increased evaluation for anxiety reaction, rated as 70 percent disabling. 4. Entitlement to a total rating based on unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his son ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION This matter came to the Board of Veterans' Appeals (Board) on appeal from a May 1989 Rating Decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The veteran served on active duty from August 1941 to August 1945. The Board denied the veteran's claims in a July 1990 decision, and the veteran appealed to the United States Court of Veterans Appeals (Court). In response to the Court's memorandum decision, [citation redacted], the Board, in January 1993, remanded the case to the RO for required action. The RO issued a supplemental statement of the case in August 1993, and the case was returned to and redocketed at the Board in November 1993. An attorney, Keith D. Snyder, represents the veteran in his appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that because of his service-connected hemorrhoids he experiences not only persistent bleeding or fissures but also bowel incontinence, warranting a higher disability rating. He asserts that his service-connected prostatitis with urethritis causes urination at intervals of 1 hour or less and that he is constantly changing clothes because of dripping and wetting. He also states that from time to time he wears pads due to urinary incontinence. He argues that his psychoneurotic symptoms meet the requirements for a 100 percent schedular rating and that, in any event, his service-connected disabilities together are incapacitating, requiring a total rating based on unemployability. 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 files. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claims. 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 preponderance of the evidence is against an increased rating for hemorrhoids, but that the evidence supports an increased rating for the veteran's prostatitis with urethritis. It is also the decision of the Board that the preponderance of the evidence is against an increased rating for the veteran's anxiety reaction. However, the evidence supports the assignment of a total rating based on unemployability due to service-connected disabilities. FINDINGS OF FACT 1. The veteran's hemorrhoids are manifested primarily by recurrent anal fissures and abscesses, occasional bleeding, and poor rectal sphincter tone with fecal leakage for which the veteran wears pads. 2. The veteran's prostatitis with urethritis is manifested primarily by frequent urination, approximately equivalent to urination at intervals of 1 hour, with pain and tenesmus; he has occasional urinary incontinence, but the requirement for constant wearing of an appliance has not been demonstrated. 3. The veteran's anxiety reaction is manifested primarily by irritability, sleep disturbance, avoidance of others and obsession with combat experiences and somatic complaints; his anxiety is marked and accompanied by considerable depression. 4. The veteran completed high school and studied accounting and business in his one year of college. After discharge from service he worked as a salesman and last worked in 1973 as co-owner and manager of a drive-in market. 5. The veteran's service-connected disabilities prevent him from obtaining or maintaining any substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 30 percent for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7336-7332 (1993). 2. The schedular criteria for a 40 percent rating for prostatitis with urethritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.7, 4.115a, Diagnostic Code 7527-7512 (1993). 3. The schedular criteria for a rating in excess of 70 percent for anxiety reaction have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1993). 4. A total rating based on unemployability due to service-connected disabilities is warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we note that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a), in that his claims are plausible. Further, we are satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Evidence of record shows that in late December 1944 the veteran was diagnosed as having subacute external hemorrhoids and chronic moderately severe prostatitis and urethritis. He was hospitalized in early January 1945 and in late January was transferred to a general hospital where he immediately underwent a hemorrhoidectomy. During hospitalization, the veteran complained of vertigo and headaches, and after a neuropsychiatric consultation, it was determined that his essential problem was psychosomatic. In a March 1945 neuropsychiatric case report, it was noted that the veteran had had 26 months of combat in Africa, Sicily and Italy, including the 4 months immediately prior to hospital admission. The diagnosis was neurosis, anxiety state, with psychosomatic genitourinary manifestations. After Medical Board proceedings, the veteran was transferred to a convalescent hospital in the United States where he received treatment until his discharge from service in August 1945. The final neuropsychiatric diagnosis was anxiety reaction with conversion features, chronic, moderate, manifested by tension, sleeplessness, and gastrointestinal complaints without organic basis. A September 1945 rating sheet shows that at that time the RO granted service connection for prostatitis with chronic urethritis and evaluated it as noncompensably disabling. The RO also granted service connection for psychoneurosis, anxiety, manifested by stomach disorder, nervousness, and headaches, evaluated as 50 percent disabling. In May 1947, after VA neuropsychiatric and general medical examinations, the RO reduced the rating for the veteran's anxiety state from 50 percent to 30 percent, continued the noncompensable rating for prostatitis with chronic urethritis, and denied service connection for hemorrhoids. The prior decisions were confirmed and continued as indicated by rating sheets dated in August 1947 and June 1948. Following a May 1949 VA neuropsychiatric examination, at which the physician noted that despite numerous vague somatic complaints the veteran seemed to have made a very satisfactory social and economic adjustment, the RO reduced the rating for the veteran's psychiatric disability to 10 percent. In an October 1949 rating sheet, the RO noted that following review of the record, occasioned by the veteran's testimony at an August 1949 hearing, it had been determined that there was clear and unmistakable error in the May 1947 rating decision that had denied service connection for hemorrhoids. The RO evaluated the veteran's hemorrhoids as noncompensably disabling and continued the 10 percent rating for the veteran's psychiatric disability and the noncompensable evaluation for his prostatitis with chronic urethritis. In a November 1949 decision, the Board denied increased ratings for each of the veteran's service-connected disabilities. Following a June 1961 fee-basis VA neuropsychiatric examination, the RO confirmed and continued the prior ratings. The veteran reopened his claims in January 1975, including a letter from a private physician, William W. Leifer, M.D., who reported he had first treated the veteran for acute prostatitis and cystitis in 1954, had treated him for subsequent episodes of subacute prostatitis, and since 1971 had treated him for low grade prostatitis. At a May 1975 VA neuropsychiatric examination, the physician noted that the veteran reported that he slept poorly, was irritable, tended to get depressed and had multiple somatic complaints. At a May 1975 VA medical examination, the veteran reported occasional burning on micturition and stated that sometimes, once or twice a week, he noticed a cream colored discharge from the urethra. On examination, the prostate was slightly enlarged, and appeared to be markedly tender. In an August 1975 rating decision, the RO increased the rating for the veteran's anxiety reaction from 10 percent to 50 percent, increased the rating for prostatitis with urethritis to 10 percent, and denied an increased rating for hemorrhoids. The RO also denied a total rating based on unemployability due to service-connected disabilities. In a January 1976 decision, the Board affirmed the denial of the total rating claim. In an October 1975 decision, the Social Security Administration had granted disability benefits, finding the veteran totally disabled because of back disability. Rating decisions in March and June 1979 confirmed and continued the prior ratings for the veteran's service-connected disabilities, and the Board affirmed the ratings in a July 1980 decision. The ratings were continued until a June 1987 rating decision in which the RO reduced the rating for the veteran's psychiatric disability from 50 percent to 30 percent, increased the rating for prostatitis with urethritis from 10 percent to 20 percent, and increased the rating for hemorrhoids from noncompensable to 20 percent. At a May 1987 VA psychiatric examination, the physician had reported that the veteran had difficulty explaining how his psychiatric condition had worsened, but complained of flashbacks, nightmares of combat, lack of interest in daily activities, chronic anxiety, and poor appetite. The diagnosis was generalized anxiety disorder. VA outpatient records dated in March and April 1987 had shown that the veteran was followed for minimal rectal abscess drainage and chronic prostatitis manifested by complaints of nocturia, hesitancy, and dribbling. The veteran appealed the reduction of the rating for his psychiatric disability, and in an August 1988 decision, the Board restored the 50 percent rating. The Board noted that at a March 1987 hearing, the veteran's son had testified that the veteran's temper had grown worse every day and that June 1987 VA outpatient records had shown that the veteran reported that he had taken Valium with some alleviation of his anxiety, which was manifested by irritability, impatience with others and a tendency to avoid the company of others. The RO implemented the Board's decision in a September 1988 rating decision. In a statement received in December 1988, the veteran claimed increased ratings for his service-connected disabilities. VA outpatient records dated from January 1988 to March 1989 show that in February 1988 the veteran requested gauze bandages for his rectal abscess. In June 1988, it was noted that the veteran had undergone a transurethral resection of the prostate a week earlier and that he had a history of recurrent prostatitis. In February 1989, when the veteran was seen at a VA mental hygiene clinic, it was noted that he had withdrawn from most social interactions. In March 1989, the VA physician noted that the veteran was anhedonic, shunned the company of others and was essentially unimproved from a psychiatric standpoint. In a May 1989 rating decision, from which the current appeal arose, the RO confirmed the prior ratings for the veteran's service- connected disabilities. In September 1989 additional VA outpatient treatment records and records of treatment at private medical facilities were received at the RO. An operation report from Menorah Medical Center shows that because of significant urinary complaints, including frequency in small amounts with decrease in force and caliber of stream, the veteran underwent urodynamics and cystoscopy with bilateral retrogrades in May 1988. No uninhibited bladder contractions were noted during the procedure. Following prostate surgery in late May 1988, the pathology consultation report included diagnoses of chronic prostatitis and urethritis and focal acute prostatitis. VA mental hygiene clinic records show that the veteran received continuing treatment from 1987 to 1989 and that in June 1989 the VA physician noted that the veteran remained depressed to the point that he was essentially non-functional, with impaired sleep and appetite, anhedonia, and feelings of helplessness and hopelessness. Impaired concentration, lack of motivation, social isolation and withdrawal were also noted. The physician suggested that the veteran's prominent intrusive painful recollections of combat experiences and nightmares warranted a diagnosis of post-traumatic stress disorder along with elements of anxiety and depression. At a November 1989 hearing, the veteran testified that he had continuing problems with his hemorrhoids and accompanying rectal abscesses. He said that because of leakage he wore pads from time to time, particularly when an abscess burst and drained. He testified that his urinary problems had increased, stating it was not uncommon for him to pass water 15 or 20 times a day and to experience urinary incontinence for no apparent reason. He also testified that he constantly had flashbacks of combat and because of his nervousness and sleep problems was unable to do any work around the house and had no outside activities other than going to doctors. The veteran reported that he had last worked in 1973 and had no hobbies. The veteran's son testified that it was not uncommon for the veteran to wet or soil his clothing three or four times a day. He reported that his father experienced flashbacks of combat, was unable to sleep, was unable to tolerate being around others and was despondent and depressed. In a July 1990 decision, the Board denied increased ratings for the veteran's service-connected anxiety reaction, prostatitis with urethritis, and hemorrhoids. The veteran appealed to the Court, and in its August 1992 memorandum decision, the Court reversed the Board's denial of an increased rating for anxiety reaction, vacated its decision on the issues of increased ratings for hemorrhoids and prostatitis with urethritis, and remanded the case to the Board for further proceedings consistent with its decision. In January 1993, the Board remanded the case to the RO for required action. In response to the Court's decision and the Board's remand, the RO, in a February 1993 rating decision assigned a 70 percent evaluation for the veteran's anxiety reaction. Subsequently received records from a VA mental hygiene clinic, dated from January 1990 to February 1993, show that the veteran continued to receive regular treatment including a trial of Prozac which was discontinued after several months due to the veteran's complaints of its ineffectiveness. Throughout the period, the VA physician reported that the veteran's persistent, long-standing dysphoria remained, along with his anhedonia and rather hopeless outlook. In October 1991, it was noted that there had been no progress with respect to the veteran's nightmares and flashbacks, and again in February 1992 it was reported there had been no significant improvement in the veteran's symptoms. On a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in February 1991, the veteran again reported that he had last worked in 1973 when he had been owner and manager of a drive-in market. He reported that he had subsequently applied for sales jobs, but was told he could not be hired because the prospective employers' insurance policies would not allow them to hire someone with a mental disorder. On the form, the veteran reported that he had completed high school and one year of college. We note that at a VA neuropsychiatric examination in May 1947, the veteran reported that he had voluntarily left college to accept a job as an insurance salesman and that his studies had included accounting and business courses. At a VA psychiatric examination in April 1993, the VA physician noted that on mental status examination the veteran rambled about all of his physical complaints and focused on them. The veteran's affect was anxious and his temper was quite irritable. He complained of sleep problems and frequent dreams about his combat experiences. The veteran said he mainly stayed depressed. He reportedly had trouble getting along with people and tended to avoid them when he could. The physician noted that the veteran obsessed on his numerous somatic complaints and that he had a history of some significant physical problems. He stated that the veteran was unable to hold gainful employment and that his incapacity was marked from a psychiatric standpoint. The diagnosis was generalized anxiety disorder with considerable depression and marked somatization of complaints. At an April 1993 urology examination, the veteran gave a history of transurethral resection of the prostate and complained of frequency of urination, including nocturia four to five times. He also reported occasional pus in his urine, some burning pain and tenesmus on voiding, and occasional stress incontinence of the urine. Findings on examination included poor anal sphincter with an extremely small benign prostate. Laboratory studies at the time of the examination were within normal limits. The final diagnosis was benign prostatic hypertrophy previously operated, with some recurrent bladder infections and prostatitis as evidenced by the frequency of urination. At a VA examination of the anus and rectum on the same date, the veteran gave a history of having had four operations in the previous three years, each involving perianal abscesses and anal fissures. The veteran complained of occasional bright red blood passed from his rectum and stated he continuously soiled his underclothes and had poor rectal sphincter control. He complained of tenesmus off and on, with constipation. The physician noted some fecal leakage on the veteran's underclothes. There was no evidence of anemia. The diagnosis was recurrent anal fissures, numerous previous hemorrhoid and rectal fissure operations resulting in poor rectal sphincter tone and occasional bleeding from the previous scar tissue. In a July 1993 rating decision, the RO continued the 70 percent evaluation for the veteran's psychiatric disability and the 20 percent evaluation for his prostatitis with urethritis. In the same decision, the RO assigned a 30 percent evaluation for the veteran's hemorrhoids and denied a total rating based on unemployability due to service-connected disabilities. As the veteran has continued his appeal, we must determine whether the assigned ratings for the veteran's service-connected disabilities should be increased and whether the veteran is entitled to a total rating because of his service-connected disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1993). Hemorrhoids are included in the Rating Schedule under 38 C.F.R. § 4.114, Diagnostic Code 7336, with a maximum rating of 20 percent where there are external or internal hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. However, as was pointed out by the Court, because the veteran's symptomatology more closely resembles that set forth in rating criteria for "Rectum and anus, impairment of sphincter control," under § 4.114, Diagnostic Code 7332, the application of that code must be considered. Under Diagnostic Code 7332, occasional involuntary bowel movements, necessitating wearing of pad warrants a 30 percent evaluation and the next higher rating, 60 percent, requires extensive leakage and fairly frequent involuntary bowel movements. The evidence shows that the veteran has had repeated surgeries involving his hemorrhoids and rectal abscesses, and the veteran has testified that from time to time he wears a pad because of leakage. At the November 1989 hearing, the veteran's son implied that the veteran has occasional involuntary bowel movements, and at VA examinations in April 1993, it was noted that the veteran had poor anal sphincter control. Also, it was noted that there was some fecal leakage on the veteran's underclothes. These findings do not signify the extensive leakage and fairly frequent involuntary bowel movements required for a 60 percent evaluation. The veteran's symptoms including constant slight leakage, occasional involuntary bowel movements, and wearing pads when an abscess bursts and drains, are encompassed by the currently assigned 30 percent evaluation. 38 C.F.R. § 4.115a, Diagnostic Code 7527 provides that prostate gland infections and post-operative residuals will be rated as for chronic cystitis, depending upon functional disturbance of the bladder. A 20 percent evaluation is warranted for cystitis when it is moderately severe and there is diurnal and nocturnal frequency with pain and tenesmus. 38 C.F.R. § 4.115a, Diagnostic Code 7512. A 40 percent evaluation is warranted when cystitis is severe with urination at intervals of 1 hour or less and the bladder is contracted. Id. The veteran has testified that he must urinate up to 20 times a day. This, together with the notation of nocturia 4 to 5 times at the April 1993 urology examination, suggests, as has been argued by the veteran, that his urination amounts to frequency at intervals of 1 hour or less, a requirement for a 40 percent evaluation. Although the most recent cystoscopy in 1988 did not show contracted bladder, in the Board's opinion the high frequency of urination, together with his pain, tenesmus, and occasional stress incontinence more closely approximate the criteria for the 40 percent evaluation than those of the currently assigned 20 percent rating. In such a situation, the higher evaluation is to be assigned. 38 C.F.R. § 4.7. The veteran has argued that his November 1989 testimony that he wore pads from time to time for urinary incontinence along with his other statements regarding dripping and wetting raise a question as to whether his prostatitis with urethritis should be evaluated as 60 percent disabling under Diagnostic Code 7512. Under the Rating Schedule, a 60 percent evaluation is warranted where incontinence exists, requiring constant wearing of an appliance. Review of the record shows that the veteran has reported some urinary incontinence, but there is no indication that there is a requirement for the constant wearing of an appliance. We note that the veteran's November 1989 hearing testimony that he wore a pad from time to time was in response to questions concerning leakage associated with his hemorrhoids, and he testified that he wore pads when an abscess burst and drained. In the Board's opinion, the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for the veteran's prostatitis with urethritis. With respect to the veteran's service-connected anxiety reaction with multiple somatic complaints, under the Rating Schedule, a 100 percent rating is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community and there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400. A 70 percent rating is warranted when the ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. Id. The evidence shows that the veteran's anxiety reaction with multiple somatic complaints is manifested primarily by irritability, sleep disturbance, avoidance of others and obsession with combat experiences and somatic complaints; his anxiety is marked and accompanied by considerable depression. In the Board's opinion, the veteran's social and industrial impairment is severe, warranting the currently assigned 70 percent rating. However, in the Board's opinion, the evidence does not show that the veteran's psychoneurotic symptoms are totally incapacitating and that they border on gross repudiation of reality as required for a 100 percent rating under Diagnostic Code 9400. Although the veteran's symptoms, including withdrawal from others, depression, marked anxiety and obsession with combat experiences and somatic complaints are extremely disabling, the evidence does not show profound retreat from mature behavior and his overall disability from his psychiatric disability does not more nearly approximate the total social and industrial impairment required for the 100 percent schedular rating, and 38 C.F.R. § 4.7 is not for application here. Although the veteran has had multiple surgeries over the years for his hemorrhoids and rectal abscesses and each of his service- connected disabilities has resulted in recognized degrees of impairment in his earning capacity, it is the Board's opinion that each disability can be rated fairly and satisfactorily under the Rating Schedule. That is, none presents such an exceptional case as to render impractical the application of the regular schedular standards thereby warranting an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321 (1993). With a 70 percent rating for his psychiatric disability and 30 percent and 40 percent ratings for hemorrhoids and prostatitis with urethritis, respectively, the veteran meets the minimum schedular requirements for a total disability rating based on unemployability due to service-connected disabilities. 38 C.F.R. § 4.16. VA will grant a total rating for compensation purposes based on unemployability where the evidence shows that the veteran, by reason of his service-connected disabilities, is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In evaluating whether the veteran's service-connected disabilities preclude substantially gainful employment, we note that the VA Adjudication Manual, M21-1, Paragraph 50.55(8) defines substantially gainful employment as that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the veteran resides. This suggests a living wage. Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet.App. 356, 358 (1991). Service connection is currently in effect for no disabilities other than hemorrhoids, prostatitis with urethritis, and anxiety reaction with multiple somatic complaints. The veteran in various statements and in his November 1989 hearing testimony emphasized that because of his problems with anal sphincter and urinary bladder control, he was virtually confined to home and always needed to be near a bathroom. As to his psychiatric disability, the evidence shows that it is severely disabling and in pertinent part is manifested by intrusive thoughts of combat, depression, irritability, lack of interest in activities, and avoidance of others. The veteran last worked in 1973 when he was owner and manager of a drive-in market. Although he thereafter reportedly applied for several sales jobs, he was not able to find employment, and in 1975 was awarded Social Security Administration disability benefits due to his nonservice-connected back disability. At the November 1989 hearing, the veteran testified that he had attempted to do volunteer work with abused children, but that lasted only about a year because he could not tolerate the emotional stress. Work as a store manager or in sales clearly would require contact with others on a regular basis, and although the veteran's one year of college included accounting and business courses, there is no indication that courses taken more than forty years ago provided him with the skills now necessary to obtain or retain a job that would allow him to be totally isolated from other people. In light of the restrictions imposed by the veteran's service-connected disabilities, we find that the evidence shows that they allow no more than marginal employment. Inasmuch as substantially gainful employment is precluded by service-connected disabilities, a total rating based on individual unemployability is warranted. 38 C.F.R. §§ 3.340, 3.341, 4.16. ORDER An increased evaluation for hemorrhoids or anxiety reaction is denied. An increased evaluation for prostatitis with urethritis, to a 40 percent disability rating, is granted, subject to the applicable criteria governing the payment of monetary benefits. A total disability rating based on unemployability due to service- connected disabilities is granted, subject to the applicable criteria governing the payment of monetary benefits. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * SHANE A. DURKIN ROBERT E. SULLIVAN *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. (CONTINUED ON NEXT PAGE) 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.