BVA9408156 DOCKET NO. 91-22 749 ) DATE ) ) ) THE ISSUES 1. Entitlement to an effective date earlier than January 5, 1990, for the award of disability compensation for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a substance abuse disorder as secondary to PTSD. 3. Entitlement to a temporary total disability rating based on a period of hospitalization at a VA medical center from February 15 to March 14, 1990. 4. Entitlement to an increased evaluation for PTSD, currently rated 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty in the United States Marine Corps from March 1968 to March 1972. Combat experience in Vietnam is indicated by the evidence of record. This appeal arose from a March 1990 rating decision of the Department of Veterans Affairs regional Office (VARO) in St. Petersburg, Florida, which granted the appellant service connection for PTSD and assigned a 50 percent disability rating for that disorder, effective from January 5, 1990. Other issues were raised by the appellant during the course of this appeal. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that a May 1988 VARO rating decision which denied service connection for PTSD was clearly and unmistakably erroneous. He therefore believes than an effective date earlier than January 5, 1990 is in order for PTSD. The appellant also seeks an increased disability rating for PTSD, contending that manifestations of that disorder are more severe than are recognized by VARO. He further contends that inpatient treatment from February 15 to March 14, 1990 entitles him to a temporary total disability rating for that period. Finally, he desires service connection for alcohol abuse, which he contends was caused by his service-connected PTSD. 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 appellant'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 service connection for substance abuse is not established and that a temporary total disability rating based on a period of hospitalization from February 15 to March 14, 1990, is not warranted. Further, it is the decision of the Board that the effective date for a grant of service connection for PTSD should be September 30, 1987, and that a 100 percent schedular disability rating for PTSD is warranted. FINDINGS OF FACT 1. The appellant served on active duty in the United States Marine Corps from March 1968 to March 1972. 2. In May 1988, service connection was denied for PTSD by the VARO, but it was granted on the basis of essentially cumulative evidence in March 1990. 3. Before service, the appellant was treated for alcohol abuse. 4. No etiologic relationship is shown to exist between the appellant's PTSD and his substance abuse. 5. The appellant was hospitalized at a VA facility from February 15 to March 14, 1990, for detoxification and treatment of alcohol and drug abuse. 6. The appellant's service-connected PTSD is currently manifested by frequent nightmares, difficulty sleeping, exaggerated startle response, intrusive thoughts of Vietnam, difficulty being around other people and depression, which are productive of severe social and industrial inadaptability. 7. His only compensable service-connected disability, PTSD, precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The May 1988 rating decision contained clear and unmistakable error. Service connection for PTSD is made effective the date of receipt of the appellant's initial claim, September 30, 1987. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.105(a), 3.400(k) (1993). 2. The appellant's substance abuse is not proximately due to or the result of his service-connected PTSD. 38 C.F.R. § 3.310 (1993). 3. The criteria for a temporary total disability rating based on a period of hospitalization from February 15 to March 14, 1990, are not met. 38 C.F.R. § 4.29 (1993). 4. The appellant's service-connected PTSD qualifies for a 100 percent schedular disability evaluation based upon unemployability. 38 C.F.R. § 4.16(c) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issues presented on this appeal have been stated above. Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, we believe that this case has been adequately developed for appellate purposes by VARO and that we may therefore proceed to a disposition on the merits without the necessity of a remand. In the interest of clarity, the Board will first describe, in general, the appellant's medical history. 38 C.F.R. § 4.1 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). We will then separately discuss each of the issues presented on this appeal. Additional pertinent medical history will also be reviewed. Medical history Service medical records reflect that the appellant sustained a laceration of the scalp due to shrapnel in September 1969 in Vietnam. The records do not indicate that a Purple Heart was awarded. However, the service personnel records and DD Form 214 do show that he was awarded the Combat Action Ribbon. The service medical records are completely negative for any psychiatric complaints, diagnoses or treatment. A report of a 1972 VA physical examination of the appellant is also negative for abnormal psychiatric findings. The appellant was hospitalized at a VA facility in June 1983 for treatment of his abuse of alcohol and marijuana. The appellant was self-employed as a carpet salesman and installer, at which trade he had worked for a number of years. He denied being depressed, hearing voices or having delusions, but indicated that he had dreams and occasional nightmares about Vietnam, and reported thoughts of Vietnam. The primary diagnosis was substance abuse, but the examiner also assigned a diagnosis of minimal to mild post-traumatic stress reaction. The examiner described the appellant's PTSD symptoms as mild to moderate. The appellant was again hospitalized in August 1987 for treatment of substance abuse. Although the discharge diagnoses included chronic PTSD, the summary of that hospitalization did not reflect any treatment for that disorder. It was noted that the appellant was working as a carpet installer, but that his substance abuse affected his day-to-day functioning, both at work and at home. A special VA psychiatric examination was conducted in March 1988. The appellant complained that he easily became depressed and aggravated. He reported intrusive thoughts and flashbacks of Vietnam, and indicated that sudden noise bothered him. He stated that he did not get along well with people, had no close friends and tried to avoid crowds. In addition, he noted that he preferred seclusion to association with others. The appellant also described himself as "partially an alcoholic," and indicated that he had a long history of drug abuse which started in Vietnam, and he stated that he still used marijuana to some extent. On examination, the appellant was occasionally restless and rarely smiled, but he repeatedly expressed episodes of depression, feelings of worthlessness, guilt feelings about not living up to his potential and difficulties coping with his daily activities. He also expressed a fear of losing control and reported a somewhat isolated existence, with sleep disturbances and some hyperalertness. He was oriented and alert, and his memory was adequate. Comprehension, concentration and judgment for test situations were all within acceptable limits. The examiner assigned a diagnosis of PTSD based on the reported symptoms and his own findings. The examiner also noted that the appellant had been hospitalized in November 1987 at a VA facility and that a diagnosis of PTSD had been made. VA outpatient records dated from August 1987 to June 1990 note the appellant's periodic complaints of sleep disturbances, increased anger, flashbacks and intrusive recollections of Vietnam, and suicidal thoughts. Throughout the period, he continued to abuse alcohol and other drugs, and most of the treatment during the period was related to substance abuse rather than to PTSD. He was hospitalized twice in 1989 for treatment of substance abuse. Mental status examination on both occasions revealed no abnormal psychiatric findings. The appellant was hospitalized at a VA facility in February 1990 for treatment of polysubstance abuse. Laboratory testing was consistent with alcohol and marijuana abuse. The appellant also admitted using cocaine, although the VA treating physician felt that this was questionable. The appellant was discharged to another VA facility for treatment of PTSD. During the February 1990 hospitalization, the appellant underwent a VA neuropsychiatric examination for compensation and pension purposes. The appellant gave a history consistent with that described above. He reported that he had been unemployed for approximately 10 years. He reported avoiding people because he became easily upset, angry and irritable. He also experienced difficulty sleeping. He continued to use alcohol and marijuana, which he stated was "his only escape". He had exaggerated startle response, flashbacks and survival guilt. The examiner's diagnoses were: (1) moderate to severe chronic PTSD; and (2) drug dependence and abuse, marijuana and alcohol. The appellant was admitted to another VA facility for inpatient therapy for PTSD in March 1990 almost immediately after discharge from treatment for substance abuse. At the time of admission, the examiner noted that the appellant's PTSD symptomatology and psychiatric findings were unchanged since his hospitalization in 1987. During the March 1990 hospitalization, service connection was granted for PTSD and the appellant received notice of that determination; the examiner indicated that he then became less motivated in the treatment program. After returning from a weekend pass in April 1990, he refused a urine drug screen, and was consequently discharged from the inpatient program. Also of record is a letter from the appellant's private psychotherapist, Adelaide E. Davis, J.D., M.A., dated in January 1992. Ms. Davis noted that the appellant's PTSD was characterized by recurrent, intrusive and distressing recollections of his war experiences and flashbacks. The appellant reported efforts to avoid thoughts and feelings associated with the war experience through alcohol use, as well as avoiding activities that would arouse those recollections. It was the examiner's opinion that the appellant's ability to formulate and maintain sound interpersonal relationships had been damaged, and that his range of affect had become limited. She also stated that the appellant had consistently reported sleep disorders, irritability and outbursts of anger, as well as difficulty in concentration, hypervigilance, an exaggerated startle response and somatic complaints. She concluded that the appellant was unable to tolerate the stresses of structured employment, that his irritability and volatile temper severely limited his ability to accept supervision, and that his inability to concentrate would render unsupervised employment problematic. She closed by stating that she considered the appellant totally disabled and unable to seek gainful employment. At the appellant's personal hearing in February 1992, he described flashbacks, nightly dreams of Vietnam and difficulty sleeping, headaches, and an inability to concentrate. He stated that he occasionally would hurt even those he loved during his violent stages. He denied having more than a few friends, and indicated that he would get crying spells whenever he talked about Vietnam. The appellant testified that he was receiving ongoing outpatient therapy and was taking three different medications to control his psychiatric symptoms. Pursuant to the Board's remand, a VA psychiatric evaluation was conducted in June 1992 by two psychiatrists and a clinical psychologist who performed psychological testing. The appellant reported that he had frequent nightmares and intrusive thoughts of Vietnam, was bothered by noises and had difficulty being around other people. He also indicated that he was depressed and had difficulty sleeping. The appellant stated that he had been unemployed for about ten years and that he spent the day doing yard work, smoking marijuana and drinking alcohol. On examination, the appellant was superficially cooperative, but avoided eye contact. His affect was constricted and his mood was labile (anxious, depressed and easily irritable). His speech was coherent and relevant. Although his memory was grossly intact and he was able to perform computational tasks, his judgment and insight were marginal. Both psychiatrists diagnosed moderate to severe impairment of social and industrial functioning. They also indicated that the appellant's substance abuse appeared to be aggravating his PTSD. The psychologist's diagnostic impression was PTSD. 1. Entitlement to an effective date earlier than January 8, 1990, for the award of disability compensation for post-traumatic stress disorder (PTSD). The appellant is seeking an effective date earlier than January 5, 1990, for service connection for PTSD, based on an allegation of clear and unmistakable error contained in a VARO rating decision dated in May 1988. 38 C.F.R. § 3.105(a) (1993). Procedural history The appellant initially filed a claim for service connection for PTSD in September 1987. In May 1988, service connection was denied for PTSD. VARO found that, although the appellant experienced "weird dreams" which involved his experiences in Vietnam, he did not have specific recurrent dreams of an event nor did he persistently re- experience an event or events in Vietnam. VARO also found that the appellant's description of his social situation was inconsistent. The appellant was notified of that decision in a July 1988 letter from VARO. He did not file an appeal. In January 1990, the appellant requested that his claim for service connection for PTSD be reopened. Service connection was granted in March 1990, based in large measure on cumulative evidence concerning his experience and wounding in combat, as well as the report of the February 1990 VA psychiatric examination, described above. Analysis The unappealed May 1988 VARO rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1993). Such final decision may, however, be reversed or amended where evidence establishes clear and unmistakable error. 38 C.F.R. § 3.105(a) (1993). The Board wishes to emphasize that the Unites States Court of Veterans Appeals has consistently stressed the rigorous nature of the concept of clear and unmistakable error. "Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). "'Clear and unmistakable error' requires that error, otherwise prejudicial,...must appear undebatably." Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). Clear and unmistakable errors "are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Russell v. Principi, 3 Vet.App. 310, 313-4 (1992). "It must always be remembered that CUE is a very specific and rare kind of 'error'." Fugo v. Brown, 6 Vet.App. 40, 43 (1993). In order to determine whether the May 1988 rating decision contained clear and unmistakable error, we review the evidence which was before the VARO rating board "at that time". 38 C.F.R. § 3.104(a) (1993). "A determination that there was 'clear and unmistakable error' must be based on the record that existed at the time of the prior...decision." Russell v. Principi, 3 Vet.App. 310, 313-4 (1992). In other words, we cannot apply the benefit of hindsight to our evaluation of the rating board's actions in May 1988. The appellant contends, in substance, that VARO committed clear and unmistakable error by ignoring the appellant's service record and the medical evidence of record at the time of its May 1988 denial of service connection for PTSD, including the report of the VA psychiatric examination in March 1988 which contained a diagnosis of PTSD. The evidence which was of record at the time of the May 1988 rating decision showed that the appellant sustained a shell fragment wound in combat in Vietnam and that he was awarded the Combat Action Ribbon. Provisions of VA's Adjudication and Procedure Manual, M21-1, utilized by the RO and in effect at the time of the 1988 rating decision, state that [i]f the claimed stressor [required for a diagnosis of PTSD] is related to combat, receipt of the Purple Heart, Combat Infantryman Badge, Bronze Star, and other similar citations are, in the absence of information to the contrary, considered supportive evidence of participation in a stressful episode. M21-1, 50.45(d) (1988). While the appellant was not awarded a Purple Heart, the records clearly indicate that he sustained a combat injury--a shell fragment wound to the scalp. Further, he was awarded the Combat Action Ribbon, which is the United States Marine Corps version of the Army's Combat Infantryman Badge. We view this evidence as indicative of the appellant's participation in a stressful episode. Although the records of the 1987 hospitalization were not of record at the time of the May 1988 rating decision, the VA examiner in February 1988 noted that the appellant had been hospitalized in 1987 at a VA facility and that a diagnosis of PTSD had then been made. More significantly, the report of the March 1988 VA examination contains a diagnosis of PTSD, based on the appellant's combat history and reported symptoms, which, in the opinion of the VA psychiatric examiner, were consistent with PTSD. We find that the evidence which was of record at the time of the May 1988 rating decision clearly showed that a diagnosis of PTSD was reasonably substantiated at that time: combat experience, including combat injury, was shown, and a diagnosis of PTSD had specifically been made by a VA examiner. We conclude, then, that the denial of service connection by that rating decision was clearly and unmistakably erroneous. The effective date for a grant of service connection shall be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In this case, the effective date for the grant of service connection should be the date of receipt of the appellant's claim, September 30, 1987, the date from which benefits would have been payable, but for the reversed decision. 38 C.F.R. § 3.400(k) (1993). 2. Entitlement to service connection for a substance abuse disorder as secondary to PTSD. VA regulations provide that a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (1993). The appellant contends that his substance abuse was caused by his PTSD. There can be no question, from the evidence described above, that the appellant has a longstanding substance abuse problem. The Board must determine whether the appellant's substance abuse is related to his service-connected PTSD. History of substance abuse A VA outpatient record dated in August 1989 stated that the appellant was then consuming up to one case of beer per day and that his use of alcohol began at age 14. That record also noted that the appellant's marijuana use began at age 18, prior to service. At the time of a VA hospitalization for treatment of polysubstance abuse in September 1989, the appellant reported a strong family history of alcoholism. A VA outpatient treatment record dated October 1989 revealed that the appellant had received inpatient psychiatric treatment for alcohol abuse on several occasions, starting at the age of 15 years, before service. A personal hearing was held in February 1992 before a member of the Board. The appellant testified that drugs and alcohol helped him deal with his flashbacks and recollections of Vietnam, and that VA physicians had told him that his substance abuse is the result of his PTSD. He also expressed his belief that such was the case. The record does not reflect that any examiner has ever stated that the appellant's substance abuse was caused by or is due to his PTSD. In June 1992, a VA psychiatric examination was conducted by a board of two psychiatrists. The examination included psychological testing and evaluation by a clinical psychologist. Neither the psychiatrists nor the psychologist indicated that the appellant's substance abuse was in any way due to or caused by his PTSD. Analysis The evidence recited above indicates that the appellant's substance abuse problem began prior to service. The appellant himself has admitted that his alcohol use began prior to service and that his use of marijuana and other drugs began during service. The only evidence of record which indicates that there is an etiologic relationship between the appellant's PTSD and his substance abuse is the appellant's own opinion. He has furnished no medical evidence in support of that position. The Board cannot entertain lay speculation on medical matters. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Although both VA psychiatrists stated in June 1992 that the substance abuse appeared to be aggravating the appellant's PTSD, this is not a finding of an causal relationship between the two disorders which is required for a grant of service connection on a secondary basis. On the contrary, it appears that the substance abuse was adversely impacting on his PTSD, rather than the opposite. In any event, the Board points to Leopoldo v. Brown, 4 Vet.App. 216, 218-9 (1993), which held that the law and VA regulations provide for secondary service connection when a service-connected injury or disease is the proximate cause of a non-service-connected condition, but do not provide for service connection based on aggravation of a non-service- connected condition by a service-connected disability. The benefit sought on appeal is therefore denied. 3. Entitlement to a temporary total disability rating based on a period of hospitalization at a VA medical center from February 15 to March 14, 1990. A temporary total disability rating of 100 percent will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or other approved hospital for a period in excess of 21 days. Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the total rating will be granted from the first day of such treatment. 38 C.F.R. § 4.29 (1993). As discussed above, the appellant is service-connected for PTSD; however, service connection has not been established for substance abuse. The summary and records of a VA hospitalization from February 15 to March 14, 1990, indicate that the appellant was admitted to the hospital because of his alleged consumption of ½ case of beer per day for the previous 20 years, plus considerable cocaine daily for an undetermined period. On admission, the appellant made no mention of PTSD. The records of the hospitalization show that he participated in a 3-day, 1½ hour per day stress management group therapy program, which constituted a defined part of the alcohol and drug detoxification and treatment program. Notation was made that, upon completion of the alcohol and drug treatment program, the appellant planned to enter the PTSD treatment program at another VA facility. No specific treatment for PTSD was provided during the hospitalization from February to March 1990. At his hearing before a member of the Board in February 1992, the appellant testified that he received treatment for PTSD during the hospitalization in question. He indicated that the treatment consisted of daily group therapy sessions during which the veterans were asked to relate their feelings and experiences in Vietnam, and that either a nurse, a counselor or a psychiatrist conducted the sessions and discussed PTSD. At his RO hearing in January 1993, the appellant again testified generally to the effect that he received treatment for his PTSD during the February-March hospitalization. Analysis The records of the appellant's VA hospitalization from February 15 to March 14, 1990, consisting largely of progress notes and the hospital summary, show that his treatment throughout the hospital admission was aimed at detoxification and treatment for alcohol and drug abuse. There is no evidence that treatment was provided for PTSD. The day following his discharge from the hospital where he received treatment for substance abuse in February and March 1990, he was admitted to another VA facility specifically for treatment of PTSD. A temporary total disability rating has already been assigned for that latter period of hospitalization. The appellant's hearing testimony regarding his recollection that he received daily therapy for his PTSD during the February-March admission is not corroborated by the complete medical records of the hospitalization. The records do not show evidence of the daily therapy sessions reported by the appellant during which he and other veterans allegedly discussed their feelings and combat experiences in treatment for PTSD. The appellant's testimony in this regard, in the opinion of the Board, carries less probative weight than does the VA hospital record. We place particular emphasis on the fact that upon discharge from his hospitalization for substance abuse treatment, the appellant immediately was admitted to another facility for treatment of his PTSD. It thus appears that the appellant underwent specialized treatment at one VA facility for substance abuse, from February 15 to March 14, 1990, followed by specialized treatment for PTSD at another VA facility, beginning on March 15, 1990. In the absence of credible evidence demonstrating that treatment was provided for a service-connected disability during a VA hospitalization from February 15 to March 14, 1990, the criteria for a temporary total disability rating under the provisions of 38 C.F.R. § 4.29 (1993) are not met. 4. Entitlement to an increased evaluation for PTSD, currently rated 50 percent disabling. In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The schedular criteria call for a 50 percent disability rating for PTSD which results in considerable impairment of social and industrial adaptability. A 70 percent disability rating is warranted for PTSD which results in severe social and industrial inadaptability. A 100 percent disability rating is applicable if PTSD is manifested by active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.132, Diagnostic Code 9411 (1993). In evaluating the appellant's psychiatric disorder, the Board is cognizant of our responsibilities under the Schedule for Rating Disabilities. 38 C.F.R. § 4.130 (1993). The word "severe" is not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1993). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. 4.2, 4.6, 4.130 (1993). The history of the appellant's service-connected PTSD has been described above. The Board, in evaluating the appellant's request for an increased rating, has focused on the recent medical evidence. All recent examiners have indicated that the appellant experiences significant symptomatology due to PTSD, which necessitated inpatient treatment in 1990. His private psychotherapist, Ms. Davis, concluded that the appellant was unable to tolerate the stresses of structured employment. Both of the 1992 VA psychiatrists stated that those symptoms, which included frequent nightmares, intrusive thoughts of Vietnam, exaggerated startle response, difficulty being around other people, depression and difficulty sleeping, were productive of moderate to severe impairment. Based on this evidence the Board believes that a 70 percent disability rating is warranted for PTSD. The assignment of a 100 percent schedular disability rating is warranted in cases in which a veteran is rated 70 percent disabled due to a mental disorder, the mental disorder is the veteran's only compensable disability, and the mental disorder is found to preclude the veteran from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(c). "Subsection (c) increases the schedular rating to 100 percent (hence, assigning total disability) where the schedular rating is at least 70 percent." Swan v. Derwinski, 1 Vet.App. 20, 22 (1990). The appellant's only compensable service-connected disability is PTSD, which the Board has found is 70 percent disabling. He has several other disabilities, all of which are rated noncompensable. The appellant is unemployed and the Board believes, based on medical and other evidence discussed above, that the appellant's service-connected PTSD precludes him from securing or following a substantially gainful employment. Accordingly, we find that the requirements of 39 C.F.R. § 4.16(c) have been satisfied in this case. A 100 percent schedular disability rating is therefore assigned for the appellant's PTSD. ORDER An earlier effective date, September 30, 1987, for a grant of service connection for PTSD is established. Service connection for a substance abuse disorder secondary to PTSD is denied. The criteria for a temporary total disability rating based on a period of hospitalization from February 15 to March 14, 1990, have not been met. An increased schedular rating, to 100 percent, based upon unemployability is granted for PTSD. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (Member temporarily absent) C. P. RUSSELL J. F. GOUGH *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. 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.