Citation Nr: 9902862 Decision Date: 01/29/99 Archive Date: 02/04/99 DOCKET NO. 95-27 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been obtained to reopen a claim for service connection for post-traumatic stress disorder. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Don Hayden, Counsel INTRODUCTION The veteran had active service from January 1964 to December 1973. The Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) for the period of service from January 1964 to December 1967 shows 58 days of non pay/time lost for the prior 2 years and that he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the June 1994 rating decision of the Department of Veterans Affairs (VA) Portland, Oregon Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the claim for service connection for post-traumatic stress disorder (PTSD). In June 1997, the Board remanded this case for additional development. CONTENTIONS OF VETERAN ON APPEAL In essence, it is contended by and on behalf of the veteran that evidence submitted since an unappealed April 1993 rating decision establishes that PTSD is the result of stressors in service, during service in Vietnam and confinement in a brig. The veteran has reported experiences in Vietnam, such as seeing children and his friends being killed and having an aircraft in which he was a passenger being struck by enemy antiaircraft fire. He also related that he experienced stress as a result of brutal treatment by the guards, while he was incarcerated in a brig during service. 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 claim for service connection for PTSD has been reopened with new and material evidence. The issue of entitlement to service connection for PTSD will be addressed in the REMAND section of this decision. FINDINGS OF FACT 1. Prior to the appealed rating decision, service connection for PTSD was denied, most recently, by an April 1993 rating decision. 2. The veteran did not submit a notice of disagreement within one year from the date of notification of the April 1993 rating decision. 3. The additional evidence added to the record since the April 1993 rating decision includes reports of examinations performed in 1994, containing confirming diagnoses of PTSD, a medical opinion contained in a February 1994 VA examination report that incarceration would constitute a significant stressor and confirmation of incarceration during service. 4. The additional evidence materially alters the factual situation on which the April 1993 rating decision was based and is so significant that it must be considered to fairly evaluate he claim. CONCLUSIONS OF LAW 1. The April 1993 rating decision is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1998). 2. Evidence received since the April 1993 rating decision is new and material. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The relevant evidence which was of record at the time of the last final denial of the claim in April 1993, consisted of: the veteran’s service medical records; copies of the veteran’s DD Forms 214, Armed Forces of the United States Report of Transfer or Discharge; the veteran’s May 1989 statement in support of the claim; a November 1988 VA psychiatric assessment and treatment plan; Request for Information; service personnel records; an August 1989 statement from the veteran; the report of an October 1989 VA examination; a May 1990 Vietnam Veterans Outreach Counselor’s report; the transcript of the veteran’s testimony at a July 1990 hearing at the RO; a September 1990 psychological evaluation by R. Emery, Ph.D.; VA outpatient treatment records covering the period from April to August 1992 and an August 1992 psychological evaluation by R. J. Bateen, Ph.D. A January 1964 entry examination found the veteran to be psychiatrically normal. In June 1966, he sought treatment complaining of occasional dizziness and it was noted that he had been sleeping on post. Physical examination was normal and it was noted that he probably had episodes of hypotension of unclear etiology. In July 1966, he sought treatment at the U. S. Naval Hospital in Rota, Spain, and complained of generalized aches and pains, headaches, and nausea. The physical examination was “unremarkable.” He was placed on bed rest for three days and discharged to duty; the diagnosis was viremia. His organization unit was reported to be NAVSTA Brig. A December 1967 reenlistment examination found him to be psychiatrically normal. In April 1968, the veteran underwent a psychiatric examination in order to evaluate his “inability to concentrate.” The examiner noted that the veteran’s commanding officer indicated that the veteran had not been able to perform satisfactorily. The veteran indicated that he had many home and family problems. The examiner noted that the veteran was alert, cooperative, and well-oriented and that the veteran related easily and spoke coherently. The examiner reported that there was no evidence of disabling neurosis, overt psychosis, or organic brain disease. It was noted that the veteran was mildly depressed, that he had few friends and little social life, that his insight and judgment were intact, and that he was mentally competent. The diagnostic impression was moderate depressive reaction. The examiner concluded that there were no psychological contraindications to full duty; however, he advised short term counseling. A November 1973 discharge examination found the veteran to be psychiatrically normal. The available service personnel records reveal that the veteran was primarily a construction draftsman and a drill instructor; however it was noted that he participated in “Counter-Insurgency Operation Vietnam” from May to July 1965. In the August 1989 statement, the veteran stated that when his plane was arriving in Vietnam it was hit by gunfire; that when he arrived in Vietnam he saw bodies being loaded onto planes; that there were three attacks on his compound in Vietnam; that 2 marines were killed when three children threw a grenade into the compound and that the children were subsequently shot; that two marines died after they were poisoned at a local bar; that a friend was killed when a lighter blew up; that he had had his “head bashed” by some men at his new duty assignment after Vietnam; that he had nightmares and difficulty sleeping in service; that he fell asleep on guard duty and was confined twice in a brig in Spain; and that he received cruel, brutal, and inhumane treatment in the brig. In a May 1990 report, a Vietnam Veterans Outreach counselor stated that the veteran had severe PTSD. At a July 1990 personal hearing the veteran reported the aforementioned stressors and he stated that there had been three ground attacks on his compound and that he had gone on patrol and engaged in gunfire with the enemy. In December 1990, the veteran submitted a September 1990 report of psychological evaluation conducted by R. Emery, Ph.D. Dr. Emery noted that the veteran reported that he had been in combat “up to ten times” while he was in Vietnam, that he had been subject to enemy fire, and had fired at the Vietcong. It was noted that the veteran’s most traumatic incident in Vietnam was when three children threw a grenade over the fence at his compound and he and other men opened fire and shot and killed the children. Dr. Emery diagnosed PTSD, chronic; major depression, recurrent; alcohol dependence, in partial remission; and personality disorder. In an April 1992 decision, the Board denied service connection for PTSD because there was no verified stressor, no symptoms reasonably attributable to a stressor in service and no substantiated diagnosis of PTSD. In an August 1992 psychological report, R. J. Bateen, Ph.D., diagnosed PTSD and stated that it was uncertain whether the PTSD was caused by the veteran’s experiences in Vietnam or his confinement in the brig. Dr. Bateen reported that it was likely that the veteran experienced PTSD symptoms upon his return from Vietnam which significantly impacted his sleep and resulted in his confinement in the brig for being asleep on duty. Finally, Dr. Bateen stated that the veteran’s experiences in the brig further exacerbated the PTSD symptoms. In April 1993, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for PTSD because the evidence was essentially cumulative and did not provide information that would verify the alleged inservice stressors. The RO also noted that the asserted inservice stressors were unsupported by the records of the veteran’s military service. The veteran was informed of the rating decision on April 22, 1993, and he did not appeal the rating decision. The evidence received between the Board’s April 1992 decision and the April 1993 rating decision consisted of Dr. Bateen’s report. The July 1993 VA hospitalization report shows a diagnosis of severe PTSD. The veteran reported the incident in Vietnam where 3 soldiers were killed when three children threw a grenade into the compound and that he then shot the children. He also reported being confined in the stockade. He continually talked about his time in Vietnam and the brig and showed great affect when discussing this. VA outpatient treatment records, apparently obtained in December 1993 show that the veteran was diagnosed as having major depression, recurrent, severe, without psychotic features in November 1988. In February 1994, the veteran submitted a partially completed PTSD Questionnaire in which he reported that he had been confined to the brig in Rota, Spain, on two occasions for sleeping on duty. He stated that he received cruel and inhumane treatment while in the brig, that he was beaten so badly that he was hospitalized, and that the guards told him to tell the doctors that he had stomach pains. The veteran also stated that “Palmar” was dead. A February 4, 1994, Social and Industrial Survey report reveals that the veteran had reported that he went out on night patrols while in Vietnam and that he was scared the whole time. He again reported that some children had thrown a grenade over the fence that surrounded his compound in Vietnam and that the children were then shot. He stated that he had a good friend named Bugsy who died when he stood up and took fire from the enemy. The veteran reported that he believed his PTSD was caused by his experiences in the “red line” brig in Rota, Spain. He said that he would kill the guards, if he knew who they were. He also reported that he killed two recruits while working as a drill instructor, that he was a cruel drill instructor, and that he had been investigated 22 times and tied by court martial, twice for assault. The diagnosis was PTSD, depression, and personality disorder, not otherwise specified, with paranoid features and antisocial features. During the February 11, 1994, VA examination, the veteran reported that he was particularly bothered by memories of the time that three children threw a grenade into his compound and he and his squad shot and killed the children and by memories of his time in the brig and the cruel treatment he received in the brig. He remembered the mutilated bodies of the children who had been killed. He stated that, while in Vietnam, he was a messenger, that he went on patrols, and that he performed guard duty. He again reported that he had been an abusive drill instructor. The diagnosis was PTSD; alcohol and marijuana dependence, in remission; and personality disorder, antisocial and avoidant traits. The examiner noted that the claims file was not available for review. The examiner said that if evidence existed of the veteran’s incarceration, the incarceration would qualify as a significant stressor contributing to the veteran’s nightmares. At a November 1994 VA examination for mental disorders, the claims file was not available for the examiner to review. The veteran did not mention the children being killed in Vietnam. He reported that he continued to have intrusive recollections about his treatment in the brig. The examiner noted the veteran’s experience in the brig appeared to be the central trauma that contributed to some of the emotional difficulties, in addition to his underlying personality structure. The diagnosis was PTSD; alcohol and marijuana dependence, in remission; and personality disorder, antisocial and avoidant traits. At a December 1994 VA examination for mental disorders, the examiner noted that the claims file had not been reviewed. The veteran reported that, in Vietnam, he performed guard duty, went on five or six patrols, was in the vicinity of small arms fire on several occasions, and saw some men killed. He stated that his friend Bugsy Siegel deliberately stood in the line of enemy small arms fire and was killed. He again reported the same stressors as previously stated. He again reported that he had been an abusive drill instructor and reported that there had been congressional investigations and assault charges filed against him. He said that he had nightmares about the brig when he heard people shouting from isolation rooms and thought about it during the day, when he smelled urine or feces. He choked-up and briefly teared when discussing his confinement. The veteran also reported that he had been abused by some of his stepfathers. The examiner noted that he believed that the veteran did have traumatic experiences in the brig and that they added substantially to his childhood PTSD which was the result of mistreatment by stepfathers. The examiner noted that the veteran did not avoid the Marine Corps after being incarcerated and did avoid weapons in later years. The examiner stated that he doubted that the veteran had significant PTSD resulting from his Vietnam experiences. The diagnoses were personality disorder, not otherwise specified, with primarily paranoid, passive-aggressive, and sociopathic facets; history of high aggressiveness, fighting, alcohol abuse, and burglary since early adolescence; history of unnecessary homicides; demonstrated deficient empathy; history of deliberate intimidation of others; reported sadistic sexuality with orgasm when assaulting others; history of alcoholism and marijuana use; childhood PTSD with abuse by stepfathers and history of adolescent violence, authority conflict, alienation from schoolmates, and some criminality; and PTSD in fragments is reported following confinement in the brig. The examiner noted that he believed that the veteran did have post-trauma nightmares rather intermittently and some degree of continuing mental suffering from his brig treatment. The examiner stated that industrial disability from the brig experiences was zero to moderate. At a hearing at the RO in January 1995, the veteran testified that he had been fired on, but not hit, while performing perimeter guard duty in Vietnam. Hearing transcript (T.) at 3. He again reported killing the children. Id. at 4. He saw someone killed, but did not know the victim. Id. at 4-5. He felt mistreated while confined in the brig. Id. at 8. He reported killing a recruit while a drill instructor, burying the body in the desert and reporting the recruit as being UA (unauthorized absence). Id. at 9. He said that he continues to have nightmares related to Vietnam and his confinement. Id. at 11. He said that he constantly thinks about Vietnam, his confinement and his being abusive while a drill instructor and believed that those caused PTSD. Id. at 17. In December 1996, the veteran submitted a statement in support of the claim and attached a copy of his August 1989 stressor statement and copies of service records which reveal that the veteran was confined for 30 days at hard labor from June 1966 to July 1966 at the U. S. Naval Station Brig in Spain. In November 1997, the Naval Historical Center reported that any records relating to the veteran’s incarceration had been destroyed; an additional attempt to obtain records relating to the veteran’s incarceration was unsuccessful. In April 1998, the RO provided a list of stressors to the United States Marine Corps to obtain verification. The listed stressors were: the aircraft in which he was riding being fired on; brutal treatment while incarcerated in the brig at Rota, Spain; 3 enemy attacks, listing the location and approximate dates; witnessing the death of someone by a hand grenade; killing a recruit while a drill instructor; being tried by court-martial for attacking and injuring a recruit while a drill instructor and “Bugsy’s” death, while in Vietnam. In May 1998, the United States Marine Corps Headquarters Personnel Management Support Branch reported that the unit diaries of subunit #2, Headquarters Company Headquarters Battalion did not show any casualties for the period from May 22, to July 19, 1965. The deaths of “Bugsy” and of a recruit reported by the veteran could not be confirmed. The Personnel Management Support Branch suggested the Marine Corps Historical Center as an additional source of information. The Marine Corps Historical Center reported that it had nothing in file regarding the Headquarters Battalion 3rd Marine Division for May and June 1965; the command chronology for July 1965 shows that subunit #2, Headquarters Company was in Da Nang, Vietnam in July 1965. Criteria and Analysis Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. 38 C.F.R. § 20.302. Service connection for PTSD, was, most recently, previously denied by an April 1993 rating decision. A notice of disagreement was not submitted within one year from the date of notification. Therefore, that decision is final. 38 U.S.C.A. § 7105. Once there is a final rating decision, new and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108. The Board must perform a two-step analysis when an appellant seeks to reopen a claim based on additional evidence. First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must evaluate the merits of the veteran's claim in light of all of the evidence, both old and new. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The term "new and material evidence" means evidence which has not been previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor 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. The newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with claims for service connection. Evans v. Brown, 9 Vet. App. 273, 284 (1996), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). It is the specified basis for the final disallowance that must be considered in determining whether the newly submitted evidence is probative. Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim. Evans, at 284. The term "service connection" connotes many factors but basically it means that a disease or injury, resulting in disability, was incurred coincident with service in the Armed Forces or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f). In Zarycki, the United States Court of Veterans Appeals (Court) held that in addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. Zarycki v. Brown, 6 Vet.App. 91, 98-99. In West v. Brown, 7 Vet.App. 70 (1994), the Court held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. In addition, the Court has articulated that, in addressing claims for service connection for PTSD, consideration must first be given to the evidence required to demonstrate the existence of an alleged stressor, and then, if such stressor is found, a determination as to whether it is of the quality required to support a diagnosis of PTSD must be made. See Zarycki v. Brown, 6 Vet.App. 91 (1993); West v. Brown, 7 Vet.App. 70 (1994). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was “engaged in combat with the enemy.” If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). If the evidence does not show that he was engaged in combat with the enemy or that the claimed stressors are related to such combat, there must be corroborative evidence of the claimed stressor. See Zarycki v. Brown, 6 Vet.App. 91 (1993). In April 1992, the Board denied service connection for PTSD because there was no verified stressor, no symptoms reasonably attributable to a stressor in service and no substantiated diagnosis of PTSD. In April 1993, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for PTSD because the evidence was essentially cumulative and did not provide information that would verify the alleged inservice stressors. The RO also noted that the asserted inservice stressors were unsupported by the records of the veteran’s military service. The relevant additional evidence which has been submitted since the April 1993 rating decision includes the report of a July 1993 VA hospitalization, VA treatment records which reveal continued treatment for PTSD, a February 1994 PTSD Questionnaire, a February 1994, Social and Industrial Survey report, reports of VA examinations in October 1993, February, November and December 1994, a medical opinion contained in the February 1994 VA examination report that incarceration would constitute a significant stressor, and service personnel records showing incarceration during service. The reports of examinations performed in 1994 containing additional diagnoses of PTSD were not of record at the time of the April 1993 rating decision. They are probative with regard to the current presence of PTSD and its relationship to events that occurred during service. While the additional diagnoses of PTSD are cumulative, they are competent and probative, especially where, as here, one of the bases for the prior denial had been that there was no substantiated diagnosis of PTSD. Paller v. Principi, 3 Vet. App. 535, 538 (1992). Also, there is confirmation of the incarceration and the medical opinion that the incarceration would be a significant stressor, since there is evidence that the veteran was incarcerated. Previously, it had been noted that the veteran had been stationed at the brig, but not that he had been incarcerated there. This evidence is both new and material. ORDER There being new and material evidence, the veteran's application to reopen his claim for service connection for PTSD is granted. REMAND Once a claim is reopened with new and material evidence, it must be considered on the basis of all evidence of record, both old and new. Manio v. Derwinski, 1 Vet. App. 140 (1991). A case which is reopened with new and material evidence is, by its nature, well grounded. Gobber v. Derwinski, 2 Vet. App. 470 (1992). The Board has found that the veteran has reopened his claim for service-connection for PTSD by submitting new and material evidence. Therefore, the VA has a duty to assist in developing all facts pertinent to the claim. 38 U.S.C.A. § 5107(a). This includes an examination. 38 C.F.R. § 3.326(a) (1998). Although the evidence does not confirm that the veteran participated in combat or any stressors, other than the incarceration, there is credible and probative evidence that he has PTSD, that he was incarcerated during service and a medical opinion that the incarceration would be a significant stressor. Accordingly, this case is REMANDED to the RO for the following: 1. The U. S. Armed Service Center for Research of Unit Records (USASCRUR), at 7798 Cissna Road, Springfield, Virginia 22150 should be requested to provide any information regarding any incidents of U. S. Air Force aircraft being struck by enemy fire or being fired on at the Da Nang Air Force Base during the period from April to August 1965. If USASCRUR does not have such information, it should be requested to suggest where such information might be located. Any evidentiary lead should be followed to its logical conclusion. 2. The RO should request a statement from the service department regarding the dates of non-pay/time lost status during the period of service from January 1964 to December 1967 and the reason therefor. 3. The RO must then make a specific determination, based upon the complete record, of whether the veteran was exposed to a stressor or stressors in service, other than his incarceration, and if so, the nature of the specific stressor or stressors should be identified. In rendering this determination, the attention of the RO is directed to the cases of Zarycki v. Brown, 6 Vet.App. 91 (1993) and West v. Brown, 7 Vet.App. 70 (1994). 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 all credibility questions raised by the record. 4. The RO should schedule an examination by a board certified psychiatrist, to determine the etiology of any PTSD. The RO must specify for the examiner the stressor(s) that it has determined are established by the record and the examiner must be instructed that only those events may be considered as stressors for the purpose of determining whether the appellant has service related PTSD. The claims folder, as supplemented by any evidence received from USASCRUR, and a separate copy of this remand must be made available to the examiner, the receipt and review of which must be acknowledged in the examination report. The examination should be conducted in accordance with applicable procedures and should include psychological tests with PTSD subscales, the results of which should be reviewed before a final psychiatric diagnosis is given. Specifically, the examiner must determine whether or not the veteran has PTSD. If a diagnosis of PTSD is made, the examiner should specify: (1) whether the stressor(s) found to be established by the RO, were sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in- service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiners. If it is concluded that PTSD preexisted service or is the result of pre-service trauma, the examiner should also comment as to whether any pre- existing PTSD was aggravated by the verified inservice stressor(s) or otherwise aggravated by service. The complete rationale for all opinions expressed by the examiner must be provided. 5. The RO should review the examination report to ensure full compliance with this remand, including the requested findings and opinions. If the examination report does not conform to the instructions in this remand, it should be returned for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). 6. The RO must assure that all directed development has been completed to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the RO should consider de novo the claim of service connection for PTSD. The RO should consider the holdings of Cohen v. Brown, 10 Vet. App. 128 (1997). If service connection for PTSD is not granted, the veteran and his representative should be furnished a supplemental statement of the case and afforded a suitable opportunity to respond. Thereafter, the case should be returned to the Board, if in order, in compliance with the applicable procedures regarding the processing of appeals. The RO will advise the veteran of the scheduling of the examination. If the veteran has additional evidence, he should forward it to the RO or provide sufficient identification so that the RO may assist him in obtaining it. By this REMAND, the Board intimates no opinion, factual or legal, regarding the decision warranted, pending completion of the requested development. 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 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), 38 U.S.C.A. § 5101 (West Supp. 1998) (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. H. J. Harter Acting 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) (1998). - 2 -