Citation Nr: 9831437 Decision Date: 10/22/98 Archive Date: 10/26/98 DOCKET NO. 94-44 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to accrued benefits based on a claim of entitlement to an increased disability rating for service- connected bilateral diabetic retinopathy, evaluated as 90 percent disabling, to include entitlement based on a claim for special monthly compensation at the (l) or (m) rate. 2. Entitlement to accrued benefits based on a claim of entitlement to an increased disability rating for service- connected arteriosclerotic heart disease, evaluated as 60 percent disabling, to include entitlement based on a claim for special monthly compensation at the (l) or (m) rate. 3. Entitlement to accrued benefits based on a claim of entitlement to an increased disability rating for service- connected diabetes mellitus, evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P.M. DiLorenzo, Associate Counsel INTRODUCTION The veteran served on active duty from September 1942 to May 1945. The appellant is the widow of the veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the appellant’s claim of entitlement to accrued benefits. In a January 1997 remand, the Board stated the issue on appeal as entitlement to special monthly compensation for the purpose of accrued benefits. This issue has been expanded to encompass the separate service-connected disabilities as to which the veteran had filed a claim for increase prior to his death. The claims concerning entitlement to increased disability ratings for service-connected bilateral diabetic retinopathy and arteriosclerotic heart disease for the purpose of accrued benefits are the subject of the remand immediately following this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in denying her claim for accrued benefits. She maintains that the veteran should have been assigned a 100 percent disability rating for his service-connected diabetes mellitus prior to his death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 evidence supports entitlement to a disability rating of 100 percent for service-connected diabetes mellitus for the purpose of accrued benefits. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the appellant’s claim has been obtained. 2. Prior to his death, the veteran’s service-connected diabetes mellitus required that he take insulin twice a day and be on a 1200 calorie renal diabetic diet. His condition was also manifested by weakness, weight loss and severe complications, including retinopathy, neuropathy, nephropathy and gastroparesis. CONCLUSION OF LAW The criteria for a disability evaluation of 100 percent for service-connected diabetes mellitus for the purpose of accrued benefits have been met. 38 U.S.C.A. §§ 1155, 5107, 5121 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.1000, 4.3, 4.7, 4.119, Diagnostic Code 7913 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Diabetes Mellitus Factual background In November 1991, the veteran submitted a claim of entitlement to an increased disability rating for his service-connected diabetes mellitus to the RO. In support of his claim, he provided private medical records from William Taylor, M.D., dated from January 1989 to December 1991, and from Bruce S. Trippe, M.D., dated from April 1990 to November 1991. These records reveal that the veteran took insulin twice a day, once in the morning and once in the evening. In July 1989, Dr. Taylor indicated that the veteran had renal disease, probably as a result of his diabetes though there could be some contribution from Waldenstrom’s macroglobulinemia. The veteran was treated for an infected foot associated with diabetes in April 1990. He also complained of weakness related to changes in his blood sugars in April 1990. Hypoglycemic unawareness was noted in May 1990. In November 1991, the veteran had significant muscle weakness as well as chronic muscle wasting as a result of diabetic neuropathy. The RO denied entitlement to a disability rating in excess of 40 percent for service-connected diabetes mellitus in January 1992. The veteran was notified of this decision by means of a February 3, 1992, letter. The veteran subsequently submitted private medical records from Robert B. Hoit, M.D. and Larry W. Epperson, M.D., dated in April 1992. These records revealed, in pertinent part, that the veteran had diabetes mellitus type I with associated end organ damage, including retinopathy and nephropathy; chronic renal failure due to diabetic nephropathy plus the effects of Waldenstrom’s macroglobulinemia; and peripheral neuropathy secondary to diabetes mellitus and Waldenstrom’s macroglobulinemia. Dr. Hoit indicated that the degree of the veteran’s renal failure was considerable and was expected to gradually progress, although the rate of progression was unclear. Dr. Epperson stated that the veteran’s peripheral neuropathy was severe and of such a degree that it was untreatable. The veteran died on May [redacted], 1992. His widow submitted a claim for accrued benefits to the RO in October 1992. Additional medical evidence was received by the RO following the veteran’s death, including a written statement from William L. McGuffin, Jr., M.D., dated in October 1992; a written statement from Roy T. Hager, M.D., dated in September 1992; a written statement from Bruce S. Trippe, M.D., dated in May 1992; hospitalization reports from the Jackson Hospital & Clinic, Inc., dated in December 1991 and March and May 1992; and treatment records from the Birmingham, Alabama, VA Medical Center (VAMC), dated from 1988 to 1991. The veteran was treated primarily for visual impairment at the Birmingham, Alabama, VAMC. On examination in May 1991, it was noted that he was on a 1200 calorie renal diabetic diet. He also took insulin every morning and evening. He reported feeling weak off and on secondary to his medical conditions. The veteran was in a wheelchair. He was able to ambulate although he appeared weak and required some assistance. The veteran was admitted at the Jackson Hospital & Clinic in December 1991 due to marked weakness and lower extremity and genital edema. It was noted that he was on a 1200 calorie renal diabetic diet. He took insulin both in the morning and in the afternoon. Pertinent diagnoses included diabetes mellitus type I with associated end-organ damage, including retinopathy and nephropathy. The veteran sought treatment at the emergency room of Jackson Hospital & Clinic in March 1992. The examiner’s impression was hypoglycemia, insulin reaction. In May 1992, the veteran was again admitted to the Jackson Hospital & Clinic with a long history of diabetes mellitus, peripheral neuropathy, progressive weakness over the past four weeks with inability to get out of bed, anorexia and a generally poor nutritional state. The severe peripheral neuropathy was noted to be multifactorial in etiology. Various medical consultations revealed, in pertinent part, that the veteran had recent weight loss; malnutrition; decreased appetite of unknown etiology which may be secondary to diabetic gastroparesis; chronic renal insufficiency due to Waldenstrom’s macroglobulinemia plus some component of diabetic and hypertensive nephropathies; insulin dependent diabetes mellitus with diabetic peripheral and autonomic neuropathy and diabetic retinopathy; and diffuse progressive weakness in the upper and lower extremities such that he could not roll over in bed, get out of bed, stand or walk on his own. The severe peripheral neuropathy with marked weakness was attributed to his diabetes mellitus. Legal analysis Upon the death of a veteran, periodic monetary benefits to which he was entitled at death based on existing ratings or decisions or those benefits due, based on evidence in the file at the date of death, and unpaid for a period not to exceed two years prior to death may be paid to his spouse. 38 U.S.C.A. § 5121 (West 1991 & Supp. 1998); 38 C.F.R. § 3.1000(a)(1)(i) (1998). Under 38 U.S.C.A. § 5121(c), the only requirement imposed regarding a claim for accrued benefits is that the application “must be filed within one year after the date of death.” 38 U.S.C.A. § 5121(c) (West 1991); see Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed.Cir. 1996) (noting that an accrued benefits claim is derivative of the veteran’s claim); see also Jones v West, 136 F.3d. 1296 (Fed. Cir. 1998). In this case, the veteran was denied entitlement to a disability rating in excess of 40 percent for service- connected diabetes mellitus in January 1992. Because the decision was not yet final at the time of the veteran’s death in May 1992, the Board finds that the claim was pending at the time of the veteran’s death. See 38 C.F.R. § 20.302 (1997). Following the veteran’s death, the appellant submitted an application for compensation or dependency and indemnity compensation (DIC) to the RO in October 1992, within one year of the date of the veteran’s death. A claim by a surviving spouse for DIC shall also be considered a claim for accrued benefits. 38 U.S.C.A. § 5101(b) (West 1991). The Board concludes that filing a timely application for accrued benefits is equivalent to establishing a well-grounded claim for those benefits, although ultimate entitlement to the benefits depends on whether entitlement would have been established for the benefits sought by the veteran in the underlying derivative claim. 38 U.S.C.A. § 5107(a) (West 1991). See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). Here, sufficient evidence for an equitable disposition of the appellant’s appeal has been obtained and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Although the RO has not obtained the veteran’s medical records from the VAMC in Montgomery, Alabama, or considered his treatment records from the Birmingham, Alabama, VAMC with respect to the current claim, or adjudicated the claim under both the old and new regulations for rating diabetes mellitus, a remand to the RO for additional development in not warranted in light of the complete grant of benefits sought on appeal herein. See Bernard v. Brown, 4 Vet. App. 384 (1993). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1998). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1998); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). On June 6, 1996, new regulations promulgated by VA for rating service-connected diabetes mellitus became effective. Where regulations change during the course of an appeal, the Board must determine, if possible, which set of regulations, the old or the new, is more favorable to the claimant and apply the one more favorable to the case. VAOPGCPREC 11-97 (March 25, 1997); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). This determination depends on the facts of the particular case and therefore is made on a case-by-case basis. VAOPGCPREC 11-97 at 2. Under the criteria for rating diabetes mellitus prior to the revisions made in June 1996, a 40 percent rating was warranted for moderately severe disease, requiring large insulin dosage, restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities. A 60 percent rating was warranted for severe diabetes mellitus with episodes of ketoacidosis or hypoglycemic reactions, but with considerable loss of weight and strength and with mild complications, such as pruritus ani, mild vascular deficiencies, or beginning diabetic ocular disturbances. A 100 percent rating was warranted for pronounced, uncontrolled disease, that is, with repeated episodes of ketoacidosis or hypoglycemic reactions, restricted diet, and regulation of activities, with progressive loss of weight and strength or severe complications. 38 C.F.R. § 4.119, Diagnostic Code 7913 (effective prior to June 6, 1996). Definitely established complications, such as amputations, impairment of central visual acuity, peripheral neuropathy with definite sensory or motor impairment or definitely established arteriosclerotic focalizations will be separately rated under the applicable diagnostic codes. 38 C.F.R. § 4.119, Note (effective prior to June 6, 1996). The revised criteria provides a 40 percent rating for diabetes mellitus requiring insulin, restricted diet and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. When diabetes mellitus requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, a 100 percent rating is warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913 (1998). Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. 38 C.F.R. § 4.119, Note (1) (1998). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). As noted above, the appellant’s eligibility for accrued benefits, if any, must be established from evidence on file at the time of death. 38 U.S.C.A. § 5121(a) (West 1991 & Supp. 1998); 38 C.F.R. § 3.1000(a) (1998). However, when the appellant filed her accrued benefits claim in October 1992, VA Manual, M21-1, 5.27 (a) permitted certain documents to be considered as being in the file at date of death even though actually put into the file post date of death: a. Evidence in File at Date of Death. Evidence “in file” includes the following, even if such reports are not reduced to writing or are not physically placed in file until after death: (1) Service Department records; (2) Reports of VA hospitalization; (3) Reports of hospitalization, treatment or examinations authorized by VA; (4) Reports of autopsy made by VA on the date of death; and (5) Medical reports which conform to the requirements of 38 C.F.R. § 3.327(b)(1). (Hayes v. Brown, 4 Vet. App. 353 (1993).) VA Manual, M21-1, Part VI, 5.27 (a) (May 8, 1995). The provisions of 38 C.F.R. § 3.327(b)(1), as in place at the time of the United States Court of Veterans Appeals (Court) decided Hayes v. Brown, dealt with scheduling a reexamination in a compensation case and provided that any hospital report and any examination report from a military hospital or from a State, county, municipal or other government hospital or recognized private institution which contain descriptions, including diagnoses and clinical and laboratory findings, adequate for rating purposes, of the condition of the organs or body systems for which claim is made may be deemed to be included in the term “Department of Veterans Affairs examination.” The provisions of 38 C.F.R. § 3.327(b)(1) have been amended and no longer contain a definition of the term “Department of Veterans Affairs examination.” The VA Manual, M21-1 has also been amended and no longer lists medical reports which conform to the requirements of 38 C.F.R. § 3.327(b)(1) as evidence in file at date of death. VA Manual, M21-1, Part VI, 5.06 (May 19, 1998). Because the old versions of the regulation and the M21-1 establish a more liberal method of determining what evidence is considered to be in file at the date of death, they are more favorable to the appellant and the Board finds that they are applicable to the appellant’s claim. See Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993) ("[s]ubstantive rules, those which have the force of law and narrowly limit administrative action, in the VA Adjudication Procedure Manual are the equivalent of Department Regulations" and that "[u]nder Karnas, the Court is required to apply the change to [the] substantive rule to the appellant’s claim. . . ."); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). In this case, the veteran provided the RO with private medical records from William Taylor, M.D., Bruce S. Trippe, M.D., Robert B. Hoit, M.D. and Larry W. Epperson, M.D. prior to his death in May 1992. Therefore, the Board finds that these records were clearly “in file” on the date of his death. Following the veteran’s death, the appellant provided the RO with written statements from William L. McGuffin, Jr., M.D., Roy T. Hager, M.D., Bruce S. Trippe, M.D., hospitalization reports from the Jackson Hospital & Clinic, Inc., and treatment records from the VAMC in Birmingham, Alabama, dated from 1988 to 1991. The VA treatment records are considered to be in file at the date of the veteran’s death. VA Manual, M21-1, Part VI, 5.27 (a) (May 8, 1995); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (The Secretary has constructive knowledge of VA records, and where such records could reasonably be expected to be part of the record considered by the Secretary, they should be made part of the record). In addition, Jackson Hospital & Clinic, Inc. is a recognized private institution for VA purposes. See 38 C.F.R. § 3.157(b)(3) (1998); see also American Hospital Association Guide to the Health Care Field, A18 (1995-96 edition). The medical findings recorded in the reports of hospitalization from this institution were both detailed and exhaustive and are considered adequate for rating purposes. Therefore, the Board finds that the hospital reports from the Jackson Hospital & Clinic submitted after the veteran’s death fall within the scope of § 3.327(b)(1) as in place at the time the appellant filed her claim, and as such, are deemed within the scope of 5.27 (a). Taken together, these Manual and Code of Federal Regulations provisions required that these reports, even though submitted after death, nevertheless, be considered. Having decided that this evidence was “in file” on the date of the veteran’s death, the issue confronting the Board in this case is whether, based upon that evidence, the veteran was entitled to a disability rating in excess of 40 percent for service-connected diabetes mellitus. Under the old criteria, the evidence is at least in equipoise as to whether the veteran’s service-connected diabetes mellitus met the criteria for the 100 percent evaluation. Although the veteran’s diabetes mellitus was not manifested by repeated episodes of ketoacidosis or hypoglycemic reactions and there is no evidence indicating that his activities were regulated, he was on a restricted diet, i.e., a renal diabetic, and suffered from progressive loss of weight and strength, as well as severe complications, including diabetic retinopathy, neuropathy, nephropathy and gastroparesis. His diffuse progressive weakness in the upper and lower extremities was such that he could not roll over in bed, get out of bed, stand or walk on his own. The Board has considered assigning the veteran separate compensable disability ratings for neuropathy, nephropathy and gastroparesis associated with his diabetes mellitus. However, the evaluation of the same “disability” or the same manifestations” under various diagnoses is not allowed. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” See Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (“The critical element is that none of the symptomatology . . . is duplicative of or overlapping with the symptomatology of the other . . . conditions.”). This would result in pyramiding, which is contrary to the provisions of 38 C.F.R. § 4.14. The 100 percent disability rating assigned under diagnostic code 7913 specifically encompasses severe complications so that additional ratings for these complications would constitute pyramiding, or compensating twice for the same disability. Under the new criteria, the evidence is likewise in equipoise with respect to whether a 100 percent evaluation is warranted. The medical evidence did not show that the veteran’s activities were regulated or that he suffered the frequency of episodes of ketoacidosis or hypoglycemic reactions as required for a 100 percent rating. However, the veteran was on a restricted 1200 calorie diet because of his diabetes mellitus and required two dosages of insulin a day. He also suffered progressive loss of weight and strength associated with diabetes mellitus. Indeed, during hospitalization in May 1992 it was noted that he had a decreased appetite possibly associated with diabetic gastroparesis and severe peripheral neuropathy with marked weakness. Given the severity of his diabetic complications (diabetic retinopathy, neuropathy, nephropathy and gastroparesis), he would have been entitled to compensable ratings had these residuals been evaluated separately. The Board is cognizant that some of the veteran’s symptoms might have been attributable to his Waldenstrom’s macroglobulinemia. However, in the absence medical evidence which assesses the degree, if any, that the Waldenstrom’s macroglobulinemia, as opposed to the service-connected diabetes mellitus, had on the veteran’s disablement, the Board finds that the evidence is at least in equipoise as to whether the criteria for a 100 percent evaluation under both the old and new criteria are met, and the benefit of the doubt is given to the veteran. 38 C.F.R. § 3.102, 4.3 (1998). ORDER Entitlement to an increased disability rating of 100 percent for service-connected diabetes mellitus for the purpose of accrued benefits is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND Diabetic retinopathy and arteriosclerotic heart disease In January 1997, the Board remanded this case to the RO. Unfortunately, it is again necessary to remand these claims. In essence, the Board finds that the RO has not substantially complied with the directives of the Board’s previous remand. See Talley v. Brown, 6 Vet. App. 72, 74 (1993). A Board remand confers upon the appellant the right to compliance with the remand orders, and VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The prior remand specifically instructed the RO to make arrangements to obtain the veteran’s complete medical records from the VAMC in Birmingham, Alabama, and any other VA facility where he was treated, dated from May 1990 to May 1992. The RO obtained the veteran’s treatment records from the VAMC in Birmingham, Alabama. These records indicated that the veteran was also followed very closely by the Montgomery, Alabama, VAMC. However, there is no indication in the claims file that the RO ever requested the veteran’s records from the VAMC in Montgomery, Alabama. Additional development is warranted in this regard. Further, the RO did not consider the veteran’s treatment records from the VAMC in Birmingham, Alabama, with respect to the claims for increased disability ratings for service- connected diabetic retinopathy and arteriosclerotic heart disease. After receiving this evidence, the RO issued a rating decision and statement of the case in October 1997 that addressed only the issue of special monthly compensation for the purpose of accrued benefits. See 38 C.F.R. § 19.37(a) (1997). Because this evidence was not considered as it pertains to the current claims, a supplemental statement of the case is required. Finally, new regulations promulgated by VA for rating service-connected cardiovascular disorders became effective on January 12, 1998. 62 Fed.Reg. 65207-65224 (December 11, 1997). See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also Dudnick v. Brown, 10 Vet. App. 79 (1997) (with respect to the amended regulations in question, VA is required to apply the amendments to the extent that they are more favorable to the claimant than the earlier provisions). The RO has not considered the claim of entitlement to an increased disability rating for service-connected arteriosclerotic heart disease under the new regulations. Consequently, a remand to the agency of original jurisdiction is required for the purpose of re-rating of the veteran’s service-connected arteriosclerotic heart disease for the purpose of accrued benefits. Accordingly, the case is REMANDED for the following development: 1. Obtain the veteran’s treatment records from the Montgomery, Alabama, VAMC and any other VA facility where he was treated, dated from 1990 to 1992. The Board is particularly interested in any treatment records concerning his residency at a VA hospital prior to his death. All records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. 2. Readjudicate the appellant’s claims with application of all appropriate laws and regulations, and consideration of his treatment records from the Birmingham, Alabama, VAMC, as well as any additional information obtained as a result of this remand, including treatment records from the Montgomery, Alabama, VAMC. With respect to the increased disability rating for arteriosclerotic heart disease, consider whether either the new or the old version of the rating criteria is more favorable. If one or the other is more favorable, apply the more favorable version. If the result is the same under either criteria, apply the revised criteria. 3. If the decision with respect to the claims remains adverse to the appellant, she and her representative should be furnished a supplemental statement of the case and a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant need take no action until she is so informed. She is, however, free to submit additional evidence or argument to the RO on remand. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The purpose of this REMAND is to obtain additional information and to comply with all due process considerations. 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 (Historical and Statutory Notes) (West Supp. 1998). 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. J. SHERMAN ROBERTS Member, Board of Veterans’ Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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) (1997). - 2 -