Citation NR: 9726414 Decision Date: 07/30/97 Archive Date: 08/06/97 DOCKET NO. 94-21 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1) Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include post traumatic stress disorder. 2) Entitlement to service connection for bilateral hearing loss. 3) Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from March 1951 to December 1952. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The claim to reopen the claim for service connection for an acquired psychiatric disorder, including post traumatic stress disorder (PTSD) was denied in a December 1993 RO decision. The claims for service connection for bilateral hearing loss and tinnitus were denied in an April 1996 rating decision, which found the claim for tinnitus to be not well grounded. The issues of service connection for bilateral hearing loss and tinnitus are covered in the REMAND section of this decision, infra. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claims for service connection for an acquired psychiatric disorder, to include PTSD. Specifically, he contends that he currently has a nervous condition and that it is directly related to his inservice experiences in Korea during the Korean conflict. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 new and material evidence has not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran’s claim has been developed. 2. By a June 1985 decision of the Board, the veteran’s claim for service connection for an acquired psychiatric disorder was denied; the issue of service connection for PTSD was also addressed, and denied. 3. In August 1993, the veteran submitted a request to reopen his claim for service connection for an acquired psychiatric disorder, to include PTSD, which was denied by rating action in December 1993, and which was properly appealed by the veteran. 4. The evidence shows no clear and current diagnosis of PTSD. 5. No evidence has been received since the June 1985 Board decision relevant to and probative of the issues of whether the veteran’s psychiatric disorder other than PTSD was incurred in service and whether there is a clear, current diagnosis of PTSD. 5. While some of the evidence submitted since the June 1985 Board decision is new, none of it is material because, when considered in the context of all the evidence of record, it does not raise a reasonable possibility that an acquired psychiatric disorder, to include PTSD, was incurred in service or is causally related to some incident of service. CONCLUSIONS OF LAW 1. The June 1985 Board decision denying the veteran’s claim is a final decision. 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997). 2. Evidence received since the June 1985 Board decision denying the veteran’s claim for service connection for an acquired psychiatric disorder is not new and material, and the veteran’s claim for service connection for an acquired psychiatric disorder is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background As stated above, the veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD, and is seeking to reopen that issue with new and material evidence. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1996). Establishing direct service connection for a disability which has not been clearly shown in service requires competent evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(d) (1996); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed.Cir. 1996). Service connection for PTSD requires (1) medical evidence establishing a clear, current diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1996); see also VA ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1), Part VI, 11.38 (Aug. 26, 1996) (reiterating the three PTSD service-connection requirements set forth in regulation § 3.304(f) and specifically requiring “credible supporting evidence that the claimed in-service stressor actually occurred”). The MANUAL M21-1 provisions in paragraph 11.38 are substantive rules which are “the equivalent of [VA] [r]egulations.” See Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (citing Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991)). To make a successful service connection claim for PTSD, the regulations require “medical evidence establishing a clear diagnosis” of PTSD. 38 C.F.R. § 3.304(f) (1996). Although § 3.304(f) became effective after the veteran submitted his claim, the MANUAL M21-1 provisions that were in effect at the time of his claim required essentially the same three elements. Cohen, ___ Vet.App. ___, No. 94-661, slip op. at 13 (Mar. 7, 1997) (citing MANUAL M21-1, Subch. XII, 50.45 (January 25, 1989)). Because specific requirements regarding the sufficiency of a stressor and the adequacy of symptomatology to support a PTSD diagnosis are not contained in § 3.304(f), a clear diagnosis of PTSD by a mental health professional must be “presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria.” Cohen, supra at 15. To be considered a “clear” diagnosis, such diagnosis must “at a minimum” be “unequivocal.” Id. at 14. In this case, the record shows that the original rating decision pertaining to this matter occurred in April 1984, denying the veteran service connection for “a nervous disorder alleged due to shock during the Korean War.” In that decision, the RO determined that, because there was no indication of inservice treatment for a nervous disorder and because no psychiatric disorder was noted on the separation medical examination report, the veteran’s nervous disorder was not incurred or aggravated by service. Subsequently, in a June 1985 decision, the Board upheld the RO’s determination. The Board held that there was no evidence of an inservice psychiatric disorder that would provide a relationship between the veteran’s acquired psychiatric disorder and his service. In addition, the Board held, in regard to PTSD, that there was no medical diagnosis of PTSD. That Board decision was a final decision, and is the last final denial of record. 38 U.S.C.A. § 7104(a) (West 1991). The veteran submitted a claim to reopen the case in August 1993 which was denied by the RO in a December 1993 rating decision. It is from this decision that he has currently appealed. II. Applicable law Under applicable law, “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 U.S.C.A. § 5108 (West 1991). “New and material evidence” is defined as that “not previously submitted to the agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.” 38 C.F.R. § 3.156(a) (1996). Thus, to reopen a claim that was previously and finally disallowed, a two-step analysis must be conducted (“Manio test”). Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the additional evidence, submitted since the last prior final disallowance, is new and material. Second, if such evidence is determined to be new and material, the disallowed claim must be reopened and the former disposition reviewed based on all the evidence of record to determine the outcome of the claim on the merits. Evans v. Brown, 9 Vet.App. 273, 283 (1996) (citations omitted); Blackburn v. Brown, 8 Vet.App. 97, 102 (1995); Colvin v. Derwinski, 1 Vet.App. 171 (1991). The first prong of the Manio test, i.e., determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, involves three questions: (1) whether the newly presented evidence is “new”; if so, (2) whether it is “material” in the sense of being relevant to and probative of the “issue at hand” in the case; and, if so, (3) whether it is “material” in the sense that, when viewed in the context of all the evidence, there is a reasonable possibility of changing the previous disallowance of the claim. Evans, 9 Vet.App. at 283 (citations omitted); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). Evidence is “new” when it is not of record at the time of the last prior disallowance and not merely cumulative of other evidence that was then of record. Evans, 9 Vet.App. at 283 (citations omitted). III. Evidence a. Previously-considered evidence Evidence before the Board in June 1985 consisted of: (1) the veteran’s separation medical examination report; (2) VA examinations and outpatient treatment reports; (3) two letters from a private physician; (4) a Social Security Administration disability claim record; and, (5) testimony at a November 1984 Travel Board hearing. All other service medical records apparently were destroyed by the 1973 fire at the National Personnel Records Center in St. Louis. The VA records indicate that, in 1971, the veteran was admitted in an acute panic-like state. The diagnosis was alcoholic withdrawal, The hospital report shows that he was discharged after three days. A February 1973 VA outpatient treatment report shows complaints of nervousness, “smothering spells,” and dizziness when the veteran stooped over. It is reported that the veteran had been nervous “all [of] his life.” A 1984 VA examination report indicates that the veteran stated that he served in Korea during the Korean conflict and experienced an artillery explosion which killed three members of his crew and slightly injured him. He asserted that he was treated for his injuries at that time and, after returning home, became excessively nervous. He worked full-time as a cook until 1982, when he became so nervous that he could not work. The psychiatric examination associated with the 1984 VA report states that the veteran complained that his nervousness made him sick to his stomach, weak, and unable to be around many people. His mental status was described as very tense, restless, and nervous, with some element of depression. The diagnosis was “[a]nxiety state, chronic, severe.” The private physician letters include one from a Dr. Fitzgerald, dated in March 1984. It states that the veteran had a diagnosis of “Generalized Anxiety Disorder,” manifested by anxiety, hostility around others, and difficulty with concentration. It states his impairment was moderate to severe. The other letter, also from Dr. Fitzgerald, states that the veteran’s diagnosis was “Possible Bi-Polar Disorder- Manic.” The Social Security document was a request to review the denial of disability benefits. At a November 1994 personal hearing, the veteran testified that he worked for 30 years after service, but was nervous and could not continue working after a 1982 “breakdown.” He stated that his two Bronze Stars and Korean Service Medal were earned when he took a direct hit from an artillery shell that killed three men by his side and burned his hair. He testified that he was treated for shock after that incident. He stated that he got married six months after separation from service, in 1952, but his nerves caused a divorce one year later. He stated that his condition caused him to feel smothered, scared, and the need to get away from people. The veteran also testified that he had had his nervous condition “as long as [he could] remember all my life,” and that his experiences in Korea made him very scared; he admitted to flashbacks of the artillery explosion in Korea, but they rarely occurred. On the basis of the above evidence, as stated above, the Board denied the veteran service connection for an acquired psychiatric disorder, including PTSD. It held that an acquired psychiatric disorder was not incurred in or aggravated by the veteran’s service because the evidence showed that there was no inservice treatment for a psychiatric condition, that the first post-service treatment was many years after service, and that there was no relation between the current psychiatric condition and service. In regard to a specific disorder involving PTSD, the Board found no medical diagnosis of PTSD. b. Evidence submitted after the final disallowance Evidence which has been added to the record since the 1985 Board decision is voluminous. It includes: (1) lay statements from the veteran’s relatives; (2) VA medical records pertaining to the veteran’s prostate disorder; (3) private medical records from Red River Mental Health Center (RRMHC) from 1983 to 1996; (4) private physician psychiatric assessment reports and treatment records; (5) a Social Security disability assessment; and, (6) an October 1993 VA post traumatic stress disorder examination report. The lay statements, from the veteran’s mother and brother, state, in essence, that the veteran came back from Korea a very different person than when he left, being nervous, confused, angry, and unable to be with others. The prostate disorder records show treatment for a swollen prostate, which apparently was cancerous and required surgery. Nothing related to a psychiatric condition is mentioned in these records. The RRMHC records indicate continuous, monthly treatment of the veteran for his psychiatric disorder beginning in 1983. The oldest records indicate that the veteran complained of nervousness due to pressure from his job as a cook; he also stated that he had an upset stomach and feelings of depression and worthlessness. He denied suicidal, paranoid, or homicidal thoughts. He admitted to drinking three beers per day. The diagnosis was “generalized anxiety disorder” and “rule out affective disorder.” An October 1984 report indicates the possibility of a bipolar disorder. A March 1986 report indicates that the veteran complained of vomiting and breaking out in a rash upon getting nervous. Over the 13 years of treatment, the records indicate that his lack of a job, difficult financial situation, his prostate disorder, and worry about health of his mother caused him to become nervous, described a “panic attacks.” The veteran’s service, including his duty in Korea are not mentioned in any of the outpatient treatment reports. However, a December 1983 RRMHC informational form indicates that, according to the veteran, his psychiatric disorder began in 1952 after his experience in the Korean conflict. The claims file contains psychiatric assessment reports and letters from several private physicians. An October 1988 assessment from a Dr. Armistead, made as part of the veteran’s Social Security disability claim, shows that the veteran believes his nervousness and smothering feeling began after the incident in Korea, when his gun blew up under him. It states that the veteran’s first treatment for the disorder was in 1970. The diagnosis was “[g]eneralized anxiety disorder, associated with panic attacks.” A 1986 assessment by a Dr. L’Herisson includes essentially the same information as above, indicating a diagnosis of “manic depressive,” with “panic and agoraphobia.” Assessments by a Dr. Cambell in 1984, a Dr. Clankford in 1988, and a Dr. Armistead in 1984 all indicate the manifestations and medical history of the veteran’s psychiatric disorder. None mention anything about Korea or the veteran’s service, except that he was in the service. All indicate a diagnosed anxiety disorder involving panic attacks. The Social Security documents inform the veteran that he qualified for disability benefits. The psychiatric review shows an anxiety disorder involving tension, apprehension, and hyperactivity. Recurrent and intrusive recollections of a traumatic experience were specifically determined to be absent. The 1993 VA report also recounts the previously-described incident in Korea. It states that the veteran had panic attacks that were uncontrollable, manifested by tenseness, nervousness, and breaking out in whelps. The veteran complained of depression and worry, the latter because he was not service-connected for his disorder. The diagnosis was “[g]eneralized anxiety disorder with associated panic disorder, chronic.” A February 1995 psychiatric evaluation from RRMHC contains notes made from the veteran’s own statements. They state that the veteran’s artillery gun was blown up on October 13, 1951 and that three people died. They state that the veteran then lost weight, began drinking to “calm him down,” and had paranoia, and that he was treated for shock while in service. It states that the veteran complained that “he has never gotten over [the]incident in Korea,” but has “learned to cope.” The report shows a diagnosis of “bipolar disorder,” with a notation to rule out PTSD. The most recent medical evidence is two 1996 letters to the VA from a Ms. Ray, a registered nurse, who treated the veteran at RRMHC. They indicate that the veteran was treated for his disorder prior to 1983, but that the records were destroyed. They show that he had a diagnosis of generalized anxiety and bipolar disorder, but state that “PTSD has not been ruled out.” They state that the veteran “could have been suffering all this time from post traumatic stress disorder,” and that he “deserves compensation for his problems.” III. Analysis All of the above evidence was not of record at the time of the last final denial and, in that sense, is new evidence. However, new evidence must also be “material” to satisfy the first prong of the Manio test. As stated above, this requires a determination as to whether the additional evidence is relevant to and probative of the issue at hand and, when viewed in the context of all of the evidence, both old and new, has a reasonable possibility of changing the disposition of the claim on the merits. Evans, 9 Vet.App. at 283. A determination of what is the “issue at hand” in a case depends on the basis for the last final denial of the claim. The Board’s decision in June 1985 is the last prior final disallowance. It denied service connection an acquired psychiatric disorder because the disability was not shown to have been incurred in service and because no medical diagnosis of PTSD had been shown. Thus, the current “issues at hand” are whether the veteran’s current acquired psychiatric disorder was incurred in or related to service and, in regard to PTSD, whether there is medical evidence of a clear, current diagnosis of PTSD. After having carefully reviewed the additional evidence, the Board finds that the “new” evidence is not material to the inservice incurrence of an acquired psychiatric disorder. While there is substantial medical evidence of the historical treatment and diagnosis of the veteran’s psychiatric disorder from 1983 to 1996, none of it states that the veteran incurred a psychiatric disorder while in service or within one year after service. See 38 C.F.R. § 3.303, 3.309 (1996). Some of the newly-submitted evidence consists of statements by the veteran that he was in combat in Korea, that he was injured there when his artillery gun was destroyed, that some of his crew were killed in the incident, and that this caused his nervousness. This evidence is not “new” for current purposes because it is essentially identical to testimony transcribed in the veteran’s 1984 personal hearing, which was considered by the Board in it 1985 final decision. Even if “new,” this evidence would not be “material,” because it is not competent medical evidence of the inservice incurrence of a psychiatric disorder or of a relationship between his current disorder and service. While the veteran is competent to testify as to visible symptoms and facts, such the explosion, his pain, and witnessing others die, see Espiritu v. Derwinski, 2 Vet. App. 492 (1992), statements by laypersons are not competent evidence regarding the diagnosis of an inservice disease or of a nexus between an inservice injury or disease and a current disorder. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992); see Moray v. Brown, 5 Vet.App. 211 (1993) (lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108). So, even though the Board accepts that the veteran was involved in a combat-related incident while in service, none of the evidence shows inservice incurrence of a psychiatric disorder or provides a nexus between active duty and the current disability. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1996); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992)(requiring the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service). As a result, it is not “material.” Manio v. Derwinski, 1 Vet.App. 140 (1991). In regard to PTSD, after review of the medical evidence, the Board finds that none of the “new” evidence provides a clear diagnosis of PTSD, as is necessary for service connection and for “materiality.” In fact, no physician has ever made a diagnosis of PTSD. The medical evidence consistently shows diagnoses of generalized anxiety disorder, with panic attacks, and possible bipolar disorder. The only exception is the 1996 letters from Ms. Ray, which indicate that the veteran “could” have had PTSD “all this time.” But this is not a “clear” diagnosis. See Cohen, supra at 15. It is noteworthy that, although the record shows approximately nine years of outpatient notes of the veteran’s visits with Ms. Ray at RRMHC, she never noted any inservice events as being related to his psychiatric disorder, nor raised the possibility of PTSD. Overall, no evidence submitted since the June 1985 Board decision establishes the requisite connection between the current acquired psychiatric disorder, including PTSD, and service. Ultimately, when viewed in the context of all of the evidence of record, the additional evidence is not “material,” because it is not probative of the “issues at hand” and does not raise a reasonable possibility of changing the outcome of the case. Smith v. Derwinski, 1 Vet. App. 178 (1991). See Cox v. Brown, 5 Vet. App. 95, 98 (1993); Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). By failing to meet the requirements to satisfy the first prong of the Manio test, supra, the additional evidence, though “new,” is not “material.” As a result, it is not “new and material evidence,” and the claim to reopen the final disallowance of the veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD, must be denied. ORDER Because no new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, that benefit remains denied. REMAND As stated above, the veteran contends that he now has bilateral hearing loss and tinnitus and that he incurred these disorders while in service. The majority of the veteran’s service medical records were apparently destroyed by the fire at the National Personnel Records Center in St. Louis. The sole service medical record in the claims file is his separation medical examination report. It indicates that, upon the veteran’s separation from service, his ears were “normal.” It also records that the veteran’s hearing was 15/15 for whispered voice in both ears. However, it also remarks that the veteran stated “that he is unable to hear at times” and describes this condition as “intermittent Pistive Deafness.” The veteran’s Report of Separation from the Armed Forces of the United States (Form DD-214) indicates that the veteran was separated from service with no wounds as a result of action with enemy forces. In a February 1984 VA examination report, it is indicated that the veteran had no noted hearing loss. The Board notes that the veteran’s claims file consists of voluminous medical records, both VA and private. However, the vast majority of these records pertain to the veteran’s psychiatric disorders, with the remaining pertaining to a prostate condition. After review of the record, the Board finds that the issue of service connection for hearing loss and tinnitus is not yet ready for adjudication. Because the veteran did have complaints of hearing problems upon separation and because there is no evidence in the claims file dissociating his inservice “intermittent pistive deafness” with his current claim of hearing loss and tinnitus, the Board is of the opinion that further evidentiary development is necessary before his claim can be properly addressed. In view of the foregoing, this case is REMANDED for the following: 1. The RO should request that the veteran furnish the names and addresses of all health care providers who have accorded him treatment for hearing impairment or tinnitus since his separation from service. 2. Upon receipt of any and all said information, and properly executed release forms, the RO should request that all health care providers identified by the veteran furnish legible copies of all medical records compiled pursuant to treatment accorded him for hearing impairment or tinnitus. 3. Upon receipt any and all such records, the RO should request that the veteran be accorded a VA medical examination by an otolaryngologist, for the following: (1) to ascertain the nature and severity of any current hearing impairment and/or tinnitus; and (2) to determine the etiology of any current hearing loss or tinnitus, and (3) to consider and explain, if possible, the term “pistive deafness,” with particular discussion of whether and to what extent, if at all, the inservice “intermittent pistive deafness” is a contributing factor in either the veteran’s hearing loss, claim of tinnitus, or both. The veteran’s claims folder is to be furnished to the examiner for his or her review prior to this examination. Specific attention is to be given to the veteran’s separation medical examination report indicating that he is unable to hear at times and that he had “intermittent pistive deafness.” All necessary tests, including an audiometric examination, are to be conducted at this time. All findings, and the reasons and bases therefor, are to be set forth in a clear, concise, and legible manner on the examination report. 4. Upon completion of the foregoing, the RO should review the veteran’s claims for hearing loss and tinnitus, and determine whether service connection either of the disorders, or both, can now be granted. 5. If the decision remains adverse to the veteran, he and his representative should be so notified, and provided with a reasonable period of time within which to respond. The RO should ensure that any supplemental statement of the case furnished to the veteran and his representative contains all relevant statutory and regulatory provisions that were not set forth in the statement of the case. The case should thereafter be returned to the Board for further review, as appropriate. 6. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Veterans Appeals (Court) for additional development or other appropriate action must be handled in an expeditious manner. See the Veterans’ Benefits Improvements act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) and 38 U.S.C.A. § 5101 (West 1991 and Supp. 1996)(Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and by the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The veteran need take no action until he is so informed. The purposes of this REMAND are to obtain additional evidence and to ensure compliance with due process considerations. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -