Citation Nr: 9812214 Decision Date: 04/20/98 Archive Date: 05/06/98 DOCKET NO. 96-27 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a hepatitis, secondary to Agent Orange exposure in service. 2. Entitlement to service connection for a skin disorder, secondary to Agent Orange exposure in service. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from January 1966 to July 1972 and included service in Vietnam from November 1967 to October 1968. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. That rating decision denied service connection for hepatitis and a skin disorder, secondary to Agent Orange exposure in service, and post- traumatic stress disorder (PTSD). The issue of service connection for PTSD will be discussed below in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he should be granted service connection for hepatitis and a skin disorder, secondary to Agent Orange exposure in service. He argues that he was exposed to Agent Orange during his service in Vietnam. He avers as a result of this exposure he has a hepatitis and a skin disorder. 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 the claims for service connection for hepatitis and a skin disorder, secondary to Agent Orange exposure in service are well grounded. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran’s appeal for service connection for hepatitis and a skin disorder. 2. The veteran had active military service in the Republic of Vietnam during the Vietnam era. 3. The service medical records do not show any diagnosis of chloracne or any other acneform disease during service or within the first year after the veteran left the Republic of Vietnam. 4. The veteran's hepatitis may not be presumed to be due to exposure to Agent Orange in service. 5. No competent medical evidence has been presented of a nexus between either the veteran's hepatitis or skin disorder and his active service or exposure to Agent Orange in service. 6. The veteran has not presented plausible claims for service connection for hepatitis or a skin disorder, secondary to Agent Orange exposure in service. CONCLUSION OF LAW The veteran has not presented well grounded claims for service connection for hepatitis or a skin disorder, secondary to Agent Orange exposure in service, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to these claims. 38 U.S.C.A. §§ 101(16), 1110, 1116, 5107(a) (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters. The law provides that “a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service- connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a “well grounded” claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1997). In the case of an Agent Orange related claim, when a veteran served in the Republic of Vietnam during the Vietnam era, competent medical evidence of the existence of a current presumptive disease with an open-ended presumptive period of time for service connection is sufficient to render the claim for service connection for the presumptive disease well grounded. Brock v. Brown, 10 Vet. App. 155, 162 (1997). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1997). 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) (1997) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 U.S.C.A. § 1116 (West 1991 & Supp. 1997); 38 C.F.R. § 3.309(e) (1997). Chloracne, or other acneform disease, may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1997). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1997) are also not satisfied, then the veteran’s claim shall fail. 38 U.S.C.A. § 1113 (West 1991 & Supp. 1997); 38 C.F.R. § 3.307(d) (1997). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed.Reg. 414421 (1996). II. Factual Background. In this case, the veteran is alleging that he has hepatitis and a skin disorder as a result of his exposure to Agent Orange in service. The RO has obtained the service medical records and they appear to be complete. In May 1968, while in Vietnam, he complained of a rash on both arms. In October, he again complained of a rash on both is hands and neck. He was observed with small pustules, flat appearing on his hand and forearm. In September of 1969, while still in Vietnam, he was diagnosed with a sebaceous cyst on his right cheek, and a small abscess on his right lower eyelid. In June 1971, the veteran was treated for complaints of weakness, pain and loss of appetite for five days. The examiner reported that the veteran suspected hepatitis because of observed dark yellow urine but following physical examination and testing, no diagnosis was rendered. In November 1971, he had a small lesion on his foreskin. In June 1972, he sustained burns on his right arm as a result of a radiator blowing up. His separation examination in June 1972 was negative for any complaint or diagnosis of either hepatitis or a skin disorder. Postservice medical reports show an admission at a VA hospital in February 1974 for drug abuse and in August 1979 primarily for diabetes. Neither report notes any skin disorder or hepatitis, except for scarring over the right shoulder and arm, and multiple heel track marks in February 1974. In September 1995 he presented to a VA hospital with a necrotic ulcer on his toe which was amputated. He tested positive for both Hepatitis B and C. In an October 1996 personal hearing, the veteran testified that ever since Vietnam, he had a rash between his legs in the summer. He also testified that he was first diagnosed with hepatitis in about 1995, but when asked why he felt his hepatitis occurred in service more than 20 years ago, testified that he was first diagnosed with hepatitis at a VA hospital in Seattle, Washington in 1975. The RO contacted the VA Medical Center (VAMC) in Seattle which reported that it could not locate any records on the veteran. III. Analysis. The Board finds that, although the veteran has met the regulatory presumption of active service in the Republic of Vietnam during the Vietnam era, no competent medical evidence has been submitted demonstrating that any skin condition identified as chloracne or any other acneform disease consistent with chloracne was present during service or was manifest to a compensable degree within the year following his service in Vietnam. These are the only skin conditions entitled to presumptive service connection due to exposure to Agent Orange. 38 C.F.R. § 3.309(e) (1997). Further, because hepatitis is not among the diseases listed in §3.309, it may not be presumed to be service connected based on his exposure to Agent Orange. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). However, the United States Court of Veterans Appeals has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to set forth a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran has presented no medical evidence of a link between his hepatitis or a skin disorder, and his exposure to Agent Orange in service. As such, the veteran has not met the requirement of providing competent medical evidence of a nexus, or link, between his inservice exposure to Agent Orange and hepatitis or any skin disorder. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). See also Dean v. Brown, 8 Vet. App. 449, 455 (1995) More importantly, with regard to his claim of a skin disorder, there is no medical evidence of any current skin disorder. Although he testified in October 1996 that he was treated for his rash the past summer at the VAMC in Little Rock, they reported in October 1996 that no records on the veteran were available other than his June 1996 VA psychiatric examination. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that Secretary’s and Court’s interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza v. Brown, 7 Vet.App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet.App. 141, 143 (1992). With regard to his claim for service connection for hepatitis, the earliest medical evidence of a diagnosis of hepatitis is in September 1995, more than two decades following his release from service. His suspicions noted in service of possible hepatitis are inadequate to constitute a diagnosis. In this regard, the Board notes that the veteran is not competent to render a diagnosis of hepatitis, or an opinion that his hepatitis was incurred in service. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Because he is not a physician, the veteran is not competent to make a determination that he had hepatitis in service, or that his current hepatitis was incurred in service. See Espiritu, 2 Vet. App. at 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The VAMC in Seattle had no records to support the veteran's contention that he was initially diagnosed with hepatitis in 1975, and a report of hospitalization dated August 1978 from the VAMC Seattle was absent for any notation regarding hepatitis. As such, the veteran has not met the requirement of showing a nexus between his hepatitis and his active service. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). See also Dean v. Brown, 8 Vet. App. 449, 455 (1995) The Board has thoroughly reviewed the claims file, but finds no evidence of a plausible claim for hepatitis or a skin disorder due to Agent Orange exposure in service. Since the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims are well grounded, they must be denied. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well-grounded, the Board does not have jurisdiction to adjudicate it). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). Regulations affording the veteran the benefit of the doubt, as provided by 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102, do not apply where the appellant has not submitted a well- grounded claim. Holmes v. Brown, 10 Vet. App. 38 (1997). ORDER Because they are not well grounded, the veteran’s claims for service connection for hepatitis and a skin disorder, secondary to Agent Orange exposure in service, are denied. REMAND Service connection for PTSD requires: (1) medical evidence establishing a clear 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 inservice 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)). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran “engaged in combat with the enemy.” 38 U.S.C.A. § 1154(b) (West 1991); see also Gregory v. Brown, 8 Vet. App. 563 (1996); Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). The MANUAL M21-1, as recently revised, provides that the required “credible supporting evidence” of a combat stressor “may be obtained from” service records or “other sources.” See Moreau v. Brown, 9 Vet. App. 389 (1996); see also Doran v. Brown, 6 Vet. App. 283 (1994). However, although corroborating evidence of a stressor is not restricted to service records, if the claimed stressor is related to combat, and in the absence of information to the contrary, receipt of any of the following individual decorations will be considered evidence of participation in a stressful episode: Air Force Cross Air Medal with “V” Device Army Commendation Medal with “V” Device Bronze Star Medal with “V” Device Combat Action Ribbon Combat Infantryman Badge Combat Medical Badge Distinguished Flying Cross Distinguished Service Cross Joint Service Commendation Medal with “V” Device Medal of Honor Navy Commendation Medal with “V” Device Navy Cross Purple Heart Silver Star See MANUAL M21-1, paragraph 11.38(c) (1). The regulations governing service connection for PTSD differ from those governing service connection for other conditions because they require evidence of an inservice stressor rather than evidence of “incurrence or aggravation” of a disease or injury in service or within a post-service presumptive period. The United States Court of Veterans Appeals (Court) has held that a physician’s opinion of causal nexus, in certain circumstances, may serve to establish inservice or presumptive-period incurrence or aggravation even when the examination on which the opinion was based was made many years after service. See e.g., ZN v. Brown, 6 Vet. App. 183 (1994). However, since the requirements in § 3.304(f) for a “link, established by medical evidence, between current symptomatology and the claimed inservice stressor” and for “credible supporting evidence that the claimed inservice stressor actually occurred,” indicate that something more than medical nexus is required, the Court recently held in Moreau, supra, that “credible supporting evidence of the actual occurrence of an inservice stressor cannot consist solely of after-the-fact medical nexus evidence.” In this case, the veteran is essentially claiming that as a result of stressors he experienced during his active service in Vietnam, he now has PTSD. He has alleged several stressors to support his claim. These include (1) being subjected to mortar and rocket attacks and being trapped in a bunker for 48 hours, (2) the death of a fellow soldier named “Jackson,” (3) being on ambush patrol and firing shots at what he thought was the enemy, and (4) being in a helicopter that took fire and went down. In June 1996, the veteran was afforded a VA psychiatric examination. He reported nightmares about Vietnam, and described being easily startled. He also recounted the bunker and helicopter stressors noted above. He gave a history of alcohol and cocaine use as recently as April. On mental status examination, he appeared anxious and somewhat vague. The diagnosis was “post-traumatic stress disorder, chronic.” Notwithstanding the above diagnosis, the Board is unable to determine from the June 1996 VA examination whether the veteran has PTSD. There is no record of any testing performed to support the diagnosis, and although there is reference to two of the veteran's claimed stressors, the report of examination does not relate his diagnosis to his service in Vietnam, or to any of his stressors. The Court has held, that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). The veteran should be afforded another VA examination to determine whether he has PTSD, and whether there is any link between a diagnosis of PTSD and any verified stressors. The Board notes that the RO has not referred the stressor information provided by the veteran to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the “United States Army and Joint Services Environmental Support Group” (ESG), in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the USASCRUR will need to verify the existence of the appellant’s claimed stressor. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of PTSD provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged in service traumatic stressors, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2). Accordingly, as the development outlined in Manual M21-1, includes providing the information submitted by the veteran to the USASCRUR, such development is mandatory. For the reasons noted above and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request from the veteran another statement containing as much detail as possible regarding the stressors to which he was exposed during service. The veteran should be asked to provide specific details of the claimed stressful events during service, such as dates, places, detailed descriptions of the events, his service units in Vietnam, duty assignments and the names and other identifying information concerning any individuals involved in the events. The veteran should be told that the information is necessary to obtain supportive evidence of the stressful events and that failure to respond may result in adverse action. 2. Regardless of the veteran’s response, the RO should review the file and prepare a summary of all the claimed stressors. This summary and all associated documents showing the units to which the veteran was assigned while in Vietnam should be sent to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), formerly the “United States Army and Joint Services Environmental Support Group (ESG)”, 7798 Cissna Road, Springfield, VA 22150. See VA MANUAL M21-1, Part VI, Paragraph 7.46 (1992). They should be requested to provide any information to show whether the veteran was engaged in combat with the enemy and to corroborate the veteran’s alleged stressors. A copy of the veteran’s DD 214 and his 201 file, if available, should also be forwarded to the USASCRUR with the request. 3. Following the above, the RO must make a specific determination, based upon the complete record, with respect to whether the appellant was exposed to a stressor or stressors in service, and, if so, the nature of the specific stressor or stressors. The RO must specifically render a finding as to whether the appellant “engaged in combat with the enemy.” If the RO determines that the record establishes the existence of a stressor or stressors, the RO must specify what stressor or stressors in service it has determined are established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 4. The veteran should be scheduled for a VA psychiatric examination. The examination should be conducted with consideration of the criteria for post- traumatic stress disorder and other psychiatric disorders. The RO must specify, for the examiner, the stressor or stressors that the RO has determined are established by the record. The examiner must be instructed that only those events may be considered for the purpose of determining whether the appellant was exposed to a stressor in service. The examination report should include a detailed account of all pathology found to be present. If there are different psychiatric disorders than post-traumatic stress disorder, the psychiatrist should reconcile the diagnoses and should specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be disassociated from one disorder or another, it should be specified. If a diagnosis of post- traumatic stress disorder is appropriate, the examiner should specify the credible “stressors” that caused the disorder and the evidence upon which they relied to establish the existence of the stressor(s). The examiner should also describe which stressor(s) the veteran reexperiences and how he reexperiences them. The psychiatrist should describe how the symptoms of post-traumatic stress disorder affect his social and industrial capacity. The report of examination should include a complete rationale for all opinions expressed. All necessary special studies or tests including psychological testing and evaluation such as the Minnesota Multiphasic Personality Inventory (MMPI) and the Mississippi Scale for Combat-Related Post-Traumatic Stress Disorder are to be accomplished. Copies of the test results should be included with the examination report. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physician include a definition of the numerical code assigned. Thurber v. Brown, 5 Vet. App. 119 (1993). The diagnosis should be in accordance with the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4TH ed., 1994). The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. 5. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, they must be returned for corrective action. 38 C.F.R. § 4.2 (1997) (“if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 6. Subsequently, the RO should consider the issue on appeal. In this regard, the RO should give full consideration to whether the issue is well grounded. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. 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. BETTINA S. CALLAWAY 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 -