Citation NR: 9732623 Decision Date: 09/25/97 Archive Date: 10/01/97 DOCKET NO. 94-31 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, other than post traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for a skin disorder. 4. Entitlement to service connection for diverticulitis. 5. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Fleet Reserve Association WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from February 1960 to April 1964. The issues on appeal arise from a June 1991 rating action entered by the aforementioned regional office (RO), with which the veteran disagreed in July 1991. A statement of the case was issued in December 1991, and a substantive appeal was received in January 1992. A supplemental statement of the case was issued in June 1992, and a hearing at which the veteran testified was conducted at the RO in December 1992. A second supplemental statement of the case was issued in June 1994, after which the case was forwarded to the Board. In addition to the foregoing, the Board observes that in April 1992, the veteran submitted an application for service connection for a cardiac disorder, diabetes mellitus, and a bone disease. It does not appear, however, that the RO has addressed these claims. As such, they have not been developed on appeal, and as they are not inextricably intertwined with the issues on appeal, they are referred to the RO for appropriate action. The Board also notes that in the veteran’s substantive appeal he requested a hearing before a Member of the Board in Washington, DC. A hearing was therefore, scheduled to take place in July 1997. The veteran, however, failed to report for that hearing, and as such, no further action in this regard is necessary. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that his skin disorder was caused by his work with chemicals while in the service or radiation, that his diverticulitis is related to his service connected duodenal ulcer, and that he developed a psychiatric disorder and bilateral foot disability in service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that this claims for service connection for a psychiatric disorder other than PTSD, a skin disorder, diverticulitis and a bilateral foot disorder are well grounded. FINDINGS OF FACT 1. The veteran’s allegations that he has a psychiatric disorder, other than PTSD, or a skin disorder, or diverticulitis, or a bilateral foot disorder that are related to service, or a service connected disability in the case of diverticulitis, are not supported by any medical evidence that would render the claims for service connection for those disabilities plausible. 2. The disabilities for which the veteran seeks service connection are not recognized by the VA as presumptively related to herbicide exposure in Vietnam. 3. Medical evidence has not been presented which supports the veteran’s allegation that a disability for which he seeks service connection was caused by his exposure to herbicide agents. 4. The veteran’s claim for service connection for a disability that is secondary to exposure to herbicide agents is not plausible 5. The veteran’s claim for service connection for a disability that is secondary to radiation exposure is not supported by competent evidence tending to show a connection between any disability from which the veteran suffers, and any exposure to radiation during service. CONCLUSIONS OF LAW 1. The veteran has not submitted a well grounded claim for service connection for a psychiatric disorder, other than PTSD. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted a well grounded claim for service connection for a skin disorder on either a direct basis or as secondary to exposure to herbicide agents or radiation. 38 U.S.C.A. § 5107 (West 1991). 3. The veteran has not submitted a well grounded claim for service connection for diverticulitis. 38 U.S.C.A. § 5107 (West 1991). 4. The veteran has not submitted a well grounded claim for service connection for a bilateral foot disorder. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Psychiatric Disorder (Other Than PTSD), Skin, Diverticulosis, Feet The threshold question to be answered is whether the veteran has presented well-grounded claims. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If he has not, the claims must fail and there is no further duty to assist in the development of the claims. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). In order to show that a claim for service connection is well-grounded, there must be competent evidence of (1) a current disability (a medical diagnosis); (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet.App. 498 (1995). “Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence” in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). However, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Under applicable criteria, service connection may be granted for disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). 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 (1996). A review of the veteran’s service medical records fails to show any complaints or treatment of a psychiatric disorder, a skin disability, diverticulitis or a disorder affecting the veteran’s feet. The report of the examination conducted in connection with the veteran’s separation from service in April 1964, revealed no psychiatric, skin, foot or abdomen abnormalities upon clinical evaluation. The first medical records that revealed the presence of any of the disabilities for which the veteran seeks service connection are dated many years after service. In 1969, the veteran was diagnosed to have psychophysiologic cardiovascular reaction, and in records dated in 1991, he was diagnosed to have pronation syndrome, xerosis, hyperkeratosis, metatarsalgia, anxiety reaction with depression, and diverticulosis. Significantly, none of the records on which these disabilities were noted contain any indication that any medical professional believed that they were causally linked to the veteran’s period of service, or to his service connected duodenal ulcer. Since the first medical records documenting the presence of a psychiatric disorder, a skin disability, diverticulitis and a bilateral foot disorder are dated many years after service, and there is no medical or otherwise competent evidence linking these disabilities to service or a service connected disability, there is no basis upon which to find that the veteran’s claims for service connection for these disabilities are well grounded. (The Board is aware that the veteran himself has contended that these disabilities are related to service, but as indicated above, when the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then opinions of witnesses skilled in that particular science to which the question relates are required. Questions of medical diagnosis or causation require such expertise. The veteran does not meet the burden of presenting evidence of a well grounded claim merely by presenting his own testimony, because as a lay person, he is not competent to offer medical opinions.) In the absence of well grounded claims with respect to those disabilities set forth above, there is no duty to assist the veteran further in the development of those claims. Grivois v. Brown, 6 Vet.App. 136 (1994). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet.App. 14 (1993). Accordingly, as claims that are not well grounded do not present a question of fact or law over which the Board has jurisdiction, the claims for service connection for a psychiatric disorder, other than PTSD, a skin disability, diverticulitis and a bilateral foot disorder must be denied. With respect to the veteran’s contention that his skin disorder is the result of his exposure to chemicals in service, the Board notes that under applicable criteria, a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1996), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than ones listed in 38 C.F.R. § 3.309(a) (1996), however, will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1996). Moreover, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to a herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii)(1996). Although it can not be confirmed from the current record that the veteran served in Vietnam, for purposes of this aspect of his appeal only, service in Vietnam will be assumed. In any event, if a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii)(1996) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1996) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1996). The diseases listed at 38 C.F.R. § 3.309(e) (1996) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to a herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1996). In addition to the above regulations, a final rule was issued effective November 7, 1996 amending 38 C.F.R. § 3.307(a) and 3.309(e). See 61 Fed.Reg. 57586-57589 (November 7, 1996). This amendment established presumptive service connection for prostate cancer and acute and subacute peripheral neuropathy based on exposure to herbicides. The amendment also added a Note as follows: “For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves with two years of the date of onset.” Although this revision was not considered by the RO, in view of the fact that these are not disabilities alleged by the appellant as having resulted from exposure to herbicides in Vietnam, no useful purpose would be served by Remanding this case to the RO for their consideration of the revised regulation. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit, however, has determined that the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). As previously mentioned, however, where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In this particular case, none of the disabilities for which the veteran seeks service connection, and none which current medical records are shown to exist, are among the diseases listed at 38 C.F.R. § 3.309(e). Thus, none of the veteran’s disabilities are deemed by the VA to be etiologically related to exposure to herbicide agents used in Vietnam, and the veteran cannot reap the benefit of the regulatory presumption created by 38 C.F.R. § 3.309(e). Moreover, there is nothing contained in the veteran’s claims folder, other than the his contentions, which would tend to establish a medical link between any exposure to herbicide agents during service and veteran’s claimed disabilities. As already indicated, the appellant is not a medical expert and, for that reason, he is not competent to express an authoritative opinion regarding any medical causation of his disabilities. See Espiritu. As the disabilities at issue are not among the diseases entitled to a presumption of service connection based upon exposure to herbicides, and as the appellant has not submitted any credible, probative medical evidence which demonstrates a causal link between his disabilities and his exposure to herbicides in service, the Board finds that the claim in this regard is not well grounded. Regarding the veteran’s claim that he has disability that is the result of his exposure to radiation in service, the following diseases shall be service connected if they become manifest in a radiation-exposed veteran as defined in paragraph (d)(3) of this section, provided the rebuttable presumption provisions of § 3.307 of this part are also satisfied: (i) Leukemia (other than chronic lymphocytic leukemia); (ii) Cancer of the thyroid; (iii) Cancer of the breast; (iv) Cancer of the pharynx; (v) Cancer of the esophagus; (vi) Cancer of the stomach; (vii) Cancer of the small intestine; (viii) Cancer of the pancreas; (ix) Multiple myeloma; (x) Lymphomas (except Hodgkin's disease); (xi) Cancer of the bile ducts; (xii) Cancer of the gallbladder; (xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) Cancer of the salivary gland; (xv) Cancer of the urinary tract. 38 U.S.C.A. § 1112(c) (West 1991 & Supp. 1997); 38 C.F.R. § 3.309(d)(1),(2) (1996). The veteran did not have any of these cancers, so the statutory presumption of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) is not applicable. When it is determined that a veteran was exposed to ionizing radiation as a result of participation in atmospheric testing of nuclear weapons, and the veteran subsequently developed a “radiogenic” disease as set out in 38 C.F.R. § 3.311(b)(2) and such disease first became manifest within the period specified under paragraph (b)(5) of this section, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with paragraph (c) of this section. 38 C.F.R. § 3.311(b) (1996). The diseases set out at 38 C.F.R. § 3.311(b)(2) are all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; thyroid cancer; breast cancer; lung cancer; bone cancer; liver cancer; skin cancer; esophageal cancer; stomach cancer; colon cancer; pancreatic cancer; kidney cancer; urinary bladder cancer; salivary gland cancer; multiple myeloma; posterior subcapsular cataracts; non-malignant thyroid nodular disease; ovarian cancer; parathyroid adenoma; tumors of the brain and central nervous system; cancer of the rectum and lymphomas other than Hodgkin’s Disease. None of the disabilities for which the veteran seeks service connection are among those set out above, and therefore, referral to the Under Secretary for Benefits is not in order. If a claim, however, is based on a disease other than one of those listed in paragraphs (b)(2) of this section, VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. The Board notes that the veteran has not submitted competent scientific or medical evidence that any of the disabilities for which he seeks service connection is a “radiogenic” disease. Accordingly, the veteran’s claim for service connection benefits as a result of radiation exposure is not well grounded. Under the foregoing circumstances, the Board concludes that the veteran has failed to present competent evidence that his claims for service connection for a psychiatric disorder, other than PTSD, a skin disability, diverticulosis and a bilateral foot disorder are well grounded. Accordingly, his claims are denied. ORDER Service connection for a psychiatric disorder other than PTSD is denied. Service connection for a skin disorder is denied. Service connection for diverticulitis is denied. Service connection for a bilateral foot disorder is denied. REMAND The evidence on appeal in this case contains the report of an examination conducted for VA purposes on which the veteran was diagnosed to have PTSD. This examination was conducted without the benefit of the claims folder but with the benefit of the clinical folder. The event that led to the diagnosis of PTSD following the examination conducted for VA purposes in April 1993, was described as when the veteran called in artillery fire on a village in Vietnam, which resulted in its complete destruction, and the death of all its inhabitants, including children. An outpatient record, dated in March 1991, revealed that the stressful event that precipitated PTSD, was the veteran observing a trainee killed during a field operation that took place in South East Asia. The impression was PTSD versus dysthymic disorder. In an apparent attempt to verify these events, the RO evidently tried to obtain the veteran’s personnel records from the National Personnel Records Center (NPRC). In a response received from the NPRC in August 1993, it was requested that the RO provide the veteran’s service number, and any documents the veteran had that might support the claim. It does not appear, however, that the RO made any attempt to respond to this request. Therefore, additional development will have to be undertaken in this regard. With respect to the actual diagnosis of PTSD, the Board observes that on October 8, 1996, the VA issued a final rule amending that portion of its Schedule for Rating Disabilities pertaining to mental disorders. 61 Fed.Reg. 52,695 (Oct. 8, 1996). The revised regulation took effect on November 7, 1996, and, hence, is in effect at the current time. This new final rule revised 38 C.F.R. §§ 4.125 through 4.129, and replaced § 4.130 with a new section that specifically adopted the fourth edition of the DSM (DSM-IV) as the basis for the nomenclature of the rating schedule for mental disorders. 61 Fed.Reg. 52,700 (Nov. 1996 amendments); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Despite this reference to DSM-IV in the recently revised VA general mental disability C.F.R. regulations now in effect, the Manual M21-1 PTSD provisions still specifically refer to the DSM-III-R. This version of the manual was adopted in 1987. See Manual M 21-1, PART VI, Para. 7.46(a) (1995) (sets forth detailed diagnostic criteria as required by DSM-III-R needed to establish PTSD). The Court of Veteran’s Appeals (Court) has held that the Manual M21-1 provisions in paragraph 7.26 dealing with PTSD are substantive rules that are the equivalent of VA regulations. The adoption of the specific PTSD criteria in May 1993, however, rendered moot the Manual M21-1 provisions regarding PTSD adjudication except where the manual is more favorable to a claimant. Where the Manual M21-1 imposes requirements not in the regulation that are unfavorable to a claimant, those additional requirements may not be applied against the claimant. Hayes v. Brown, 5 Vet.App. 60, 67 (1993). The criteria in DSM-III-R, as presently adopted by the Manual M21-1 and similar provisions in DSM-III, provide that an essential feature of a diagnosis of PTSD is the development of characteristic symptoms following an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone. The Court, however, has found that diagnostic criteria for a stressor now in effect for VA adjudication under DSM-IV differ substantially from those in DSM-III and DSM-III-R. The previous requirement that the psychologically traumatic event or stressor be one that would evoke significant symptoms of distress in almost everyone has been deleted, and DSM-IV instead requires that the person’s response to the stressor involve intense fear, helplessness, or horror. Cohen v. Brown, 10 Vet.App. 128 (1997). The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or to others and (2) the person’s response must have involved intense fear, helplessness, or horror. In short, the criteria is no longer based solely on usual experience and response, but is individualized (geared to the specific individual’s actual experience and response). Id. Because of the change in criteria in determining the sufficiency of a stressor, a new examination for VA purposes is in order. Under the circumstances described above, additional development will have to be undertaken to ensure that an equitable disposition of the veteran’s claim for service connection for PTSD is obtained. Accordingly, this case is remanded to the RO for the following: 1. The veteran should be requested to identify all sources of recent treatment received for PTSD and to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records from all sources he identifies, including VA records, (not already in the claims folder) should then be requested. All records obtained should be added to the claims folder. 2. The RO should also ask the veteran to identify the time period(s) he served in Vietnam, and the unit(s) to which he was assigned while there. He should be further asked to submit copies of any service personnel records in his possession, and to describe in greater detail, the event(s) he believed precipitated PTSD, to include when he observed a trainee killed, or a village destroyed. The details he should be asked to provide should include the date and location of the incidents, the unit to which he was assigned at those times, and whether there were any witnesses. If the veteran knows of the names of any other witnesses, he should be encouraged to attempt to obtain corroborating statements from those individuals. The identification of any other units involved in these events should also be provided, if known. 3. Upon completion of the above, the RO should provide the NPRC the veteran’s service number, together with copies of any service personnel documents the veteran provides, and request copies of the veteran’s service personnel records. In addition, any further development logically indicated by the contents of the information obtained from the veteran and NPRC as a result of this Remand should be accomplished, to include obtaining Unit History Reports, Unit Morning Reports and/or contacting the US Army & Joint Service Environmental Support Group, 7798 Cissna Rd., Suite 101, Springfield, Virginia 22150-3197 and request that they confirm, if possible, the alleged stressor incidents. 4. Upon completion of the above action, the veteran should be afforded a special VA psychiatric examination, to include psychological testing. The purpose of this examination is to determine if the veteran currently suffers from PTSD. If the veteran is found to have PTSD, the examiner should express an opinion for the record on whether the veteran’s claimed stressors from his military service are etiologically related to any current PTSD. The examining physician should specifically identify which stressors are linked to any diagnosed PTSD and determine the sufficiency of the stressors as a cause of any PTSD. The examiner should apply the diagnostic criteria of both DSM III-R and DSM-IV and indicate whether one or the other would lead to a different result, and what that result would be. All tests deemed necessary by the examiner must be conducted and the clinical findings and reasoning which form the basis of the opinions requested should be clearly set forth. Finally, if the examiner finds that the veteran does not have PTSD, he should reconcile his/her opinion with that of other examiners who may have differed with that opinion. The claims folder and a copy of this Remand must be made available to the examiner prior to the examination in order that he or she may review pertinent aspects of the veteran’s service and medical history. 5. Upon receipt of the examination report, the RO should review the report to ensure that it is adequate for rating purposes. If not, the RO should return the examination report to the examining physician and request that all questions be answered. 6. Next, the RO should review all the evidence of record regarding the veteran’s claim for service connection for PTSD. In doing so, the RO’s attention is directed to the decision Cohen v. Brown, 10 Vet.App. 128 (1997), wherein the Court held that adoption of new regulations based on the criteria of DSM-IV had changed the way the VA was to adjudicate service connection for PTSD. The Court further held that the version most favorable to the appellant, either 38 C.F.R. §§ 4.125 through 4.130 (Effective November 7, 1996) or M21-1, PART VI, Para. 7.46(a) (1995), would apply in the adjudication of service connection for PTSD. Id. at 15. If the determination on the issue of entitlement to service connection for PTSD remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and given a reasonable opportunity to respond. In doing so, the RO should specifically cite the new criteria, 38 C.F.R. §§ 4.125 through 4.130, and the old criteria, M21-1, and provide reasons and bases determining which one is most favorable to the veteran. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need take no further action until he is informed. The purpose of this Remand is to obtain additional evidence and to afford due process. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. IRIS S. SHERMAN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -