BVA9507481 DOCKET NO. 92-18 955 ) DATE ) ) On appeal from the decisions of the Department of Veterans Affairs Regional Offices in Houston, Texas, and Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for arthritis of the right foot. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for arthritis of the right and left ankles. 3. Entitlement to an increased rating for residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage, currently evaluated as 10 percent disabling. 4. Whether there was clear and unmistakable error in a rating decision of June 13, 1979, which denied service connection for arthritis of the right and left ankles. 5. Whether there was clear and unmistakable error in a rating decision of June 13, 1979, which assigned a noncompensable evaluation for residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from May 1959 to July 1962 and from August 1971 to November 1978. A June 1979 rating decision denied service connection for arthritis of the right and left ankles. The veteran was notified of that decision and filed his notice of disagreement. A statement of the case was issued and the veteran was notified of the requirements necessary to continue his appeal. The veteran did not perfect his appeal and the June 1979 rating decision became final. In February 1993, a hearing officer held that the veteran had submitted new and material evidence to reopen his claim for service connection for arthritis of the ankles. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1992 and March 1993 rating decisions by the Department of Veterans Affairs (VA) Regional Offices in Houston, Texas, and Muskogee, Oklahoma, respectively. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran currently has arthritis of the ankles and right foot which was initially manifested during his active service. It is asserted that the veteran developed this arthritis as a result of required running during active service. It is further contended that the veteran's residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage are more disabling than currently evaluated. With respect to the increased rating, it is contended that the veteran experiences pain, fatigue, numbness, give way in the lower right extremity, and that the wound to the calf muscle in his right leg was a through-and-through wound. It is also asserted that there was clear and unmistakable error in the June 1979 rating decision which denied service connection for arthritis of both ankles and assigned a noncompensable evaluation for residuals of a gunshot wound to the right calf. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 record supports the grant of service connection for arthritis of the talonavicular joint in the right foot, that the veteran has not submitted new and material evidence to reopen the claim for service connection for arthritis of the right and left ankles, that a preponderance of the evidence is against an increased rating for residuals of a gunshot wound to the right calf, and that there was no clear and unmistakable error in the June 1979 rating decision which denied service connection for arthritis of the ankles and assigned a noncompensable evaluation for residuals of a gunshot wound to the right calf. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the VA. 2. The veteran has degenerative arthritis of the talonavicular joint of the right foot which is related to active service. 3. Service connection for arthritis of the right and left ankles was denied in a June 1979 rating decision. 4. Evidence added to the record since the June 1979 rating decision does not bear directly on the question of whether the veteran has arthritis of the ankles which had its onset in service or as a result of injury incurred during service. 5. The residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage are manifested by 4 plus/5 distal extensor weakness in the right lower extremity and distal flexor strength of 4/5 in the right lower extremity distally, when compared to the left, loss of muscle tissue, and numbness and tingling due to peroneal nerve injury, which is moderately disabling. 6. The unappealed June 1979 rating decision which denied service connection for arthritis of the ankles was supported by the evidence then of record and was a reasonable exercise of rating judgment. 7. The unappealed June 1979 rating decision which assigned a noncompensable evaluation for residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage was supported by the evidence then of record and was a reasonable exercise of rating judgment. CONCLUSIONS OF LAW 1. Arthritis of the talonavicular joint of the right foot was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1994). 2. The June 1979 rating action denying service connection for arthritis of the ankles is final; new and material evidence has not been presented. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302 (1994). 3. An evaluation greater than 10 percent for residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.56, 4.72, Part 4, Codes 5311, 8522, 8622 (1994). 4. The June 1979 rating decision was not clearly and unmistakably erroneous in denying service connection for arthritis of the ankles. 38 U.S.C.A. §§ 1110, 7105 (West 1991); 38 C.F.R. § 3.105(a) (1994). 5. The June 1979 rating decision was not clearly and unmistakably erroneous in assigning a noncompensable evaluation for residuals of a gunshot wound to the right calf. 38 U.S.C.A. §§ 1110, 7105; 38 C.F.R. § 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Foot September 1975 service medical records state that the veteran complained of left foot pain. He reported that he was operated on as a child for club foot and casted. The impression was congenital club foot. In February 1976, the veteran was seen with complaints of pain, especially when running, in the anterolateral ankle and left foot. X-rays showed evidence of Kohler diagnosis and dorsal lipping at the talonavicular joint. There was a questionable osseous bar between the talus and calcaneus. The veteran was to be scheduled for tomograms. A February 1976 tomogram of the right ankle showed a bony bridge between the talus and calcaneus, almost total joint space narrowing of the talonavicular joint with degenerative arthritic evidence, and old Kohler disease. A September 1977 service medical record states a provisional diagnosis of "rheumatoid arthritis" of the feet and "records lost." The veteran was issued physical profiles in November and December 1977 with defects listed as a diagnosis of rheumatoid arthritis and arthritis of both feet. Service medical records dated in July, August and September 1978 reflect that the veteran was seen at the orthopedic and podiatry clinics. The August 1978 record reflects degenerative joint disease of the talonavicular joint of both feet. The September 1978 record states that X-rays revealed degenerative joint disease of the talonavicular joint, and the impression indicated that arthritis of the talonavicular joint had been incurred during active service. The report of the veteran's August 1978 service separation examination states that the veteran reported painful feet of a three-year duration and arthritis of the ankles. On examination, there was slight tenderness on range of motion testing of both ankles. A September 1978 service physical profile identifies arthritis of the ankles, bilaterally. This profile is dated the same day as the September 1978 service medical record which identifies degenerative joint disease of the talonavicular joint. The report of a May 1979 VA examination reflects no complaint, finding, or treatment with respect to the veteran's feet. The report of an August 1991 VA orthopedic examination states that X-rays were essentially unremarkable except there were some degenerative changes at the head and neck of the talus at the navicula. There was no narrowing of the talonavicular joint. The report of X-rays of the veteran's feet states the impression of normal feet. The examiner's impression included degenerative arthritis of the talonavicular joint of the right foot, mildly symptomatic. A September 1994 letter from Tom Phillip Coker, M.D., a private orthopedist, states that the veteran has marked talonavicular arthritis. Service medical records appear to have, at times, associated arthritis of the veteran's talonavicular joint with his ankle. However, the talonavicular joint is in the foot, rather than the ankle. Henry Gray, F.R.S., Anatomy of the Human Body, 303-304 (Charles M. Goss, M.D. ed., 1959). In light of the use of this reference source to identify the location of the talonavicular joint as being in the foot, Thurber v. Brown, 5 Vet.App. 119 (1993), sets forth certain requirements which, if not met, would be error. However, in light of the Board's decision with respect to this issue, such error is harmless and the veteran's interest is not prejudiced by failing to meet the requirements set forth in Thurber. Although service medical records initially identified the veteran's complaints with respect to his feet as being associated with congenital club foot, subsequent development by tomogram in February 1976 identified space narrowing at the talonavicular joint with degenerative arthritic evidence. X-rays at the end of the veteran's service again revealed degenerative joint disease of the talonavicular joint with an impression being offered that this arthritis had been incurred during active service. The first post service evidence of degenerative changes at the talonavicular joint is the report of the August 1991 VA orthopedic examination. Although the report of X-rays taken at that time states the impression of normal feet, the examiner, in conjunction with his examination of the veteran's feet and his review of those X-rays, concluded that there was degenerative arthritis of the talonavicular joint of the right foot. The veteran has also submitted a letter from a private orthopedist which states that the veteran has marked talonavicular arthritis. In order for service connection to be granted for arthritis of the talonavicular joint of the right foot, it must be shown that he currently has such arthritis and that the arthritis is related to his active service. Although the report of the X-rays taken at the time of the August 1991 VA orthopedic examination reflects that the veteran's feet were normal, the examiner concluded on the basis of those X-rays, as well as his examination, that degenerative arthritis of the talonavicular joint of the right foot existed. This, taken together with the statement by Dr. Coker, provides a preponderance of the evidence which supports a finding that talonavicular arthritis of the right foot currently exists. Arthritis is by definition a chronic disease. 38 C.F.R. § 3.309 (1994). In light of the inservice X-rays and tomogram which identified arthritis of the talonavicular joint in the right foot and the impression that this had been incurred during active service, a preponderance of the evidence reflects that arthritis of the talonavicular joint of the right foot was first incurred and existed during active service. Although there is a time lapse of over 10 years between the veteran's active service and the current identification of arthritis of the talonavicular joint, there is no evidence which disassociates the identified chronic disability during service from current disability. Accordingly, service connection for arthritis of the talonavicular joint of the right foot is granted. 38 U.S.C.A. §§ 1110, 1131. II. Right and Left Ankles Service connection for arthritis of the right and left ankles was initially denied by a rating decision in June 1979. The veteran did not perfect an appeal from that decision and it became final. Although a February 1993 decision by a hearing officer purports to reopen the veteran's claim for service connection for arthritis of the ankles on the basis that new and material evidence has been submitted, the Board must undertake a de novo review of the record to determine whether the veteran's claim has been properly reopened. O.G.C. Prec. Op. 05-92. If it is found that the claim was improperly reopened, the reopening will be vacated and the previous denial will stand. Fluker v. Brown, 5 Vet.App. 296 (1993). A February 1976 service medical record refers to the right ankle and identifies narrowing at the talonavicular joint with degenerative arthritis. A September 1978 service physical profile identifies arthritis of the ankles, bilaterally. This profile is dated the same day as the September 1978 service medical record which identifies degenerative joint disease of the talonavicular joint. The report of the veteran's August 1978 service separation examination states that the veteran reported painful feet of a three-year duration and arthritis of the ankles. On examination, there was slight tenderness on range of motion testing of both ankles. In December 1978, the veteran filed a formal claim for various disabilities, including arthritis of both ankles. The report of a May 1979 VA examination states that the veteran reported that he had arthritis of both ankles. He indicated that he had been having some severe pain in his ankles to the point that he became incapacitated and was dismissed from the military. X-rays of his ankles revealed no bone or joint abnormality and there was nothing to suggest arthritis. The diagnoses included arthritis of both ankles, not found. A rating decision in June 1979 denied service connection for arthritis of the right and left ankles. The veteran initiated an appeal from that decision, but did not perfect his appeal and that decision became final. Subsequent to that decision, the veteran was afforded VA orthopedic and neurology examinations in August 1991. The reports of these examinations do not indicate any findings with respect to arthritis of the ankles. During the veteran's personal hearing, he testified concerning what he was told during his active service with respect to having arthritis of the ankles. New evidence is not that which is merely cumulative of other evidence already present in the record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). When evidence is material, it means that there is a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the appeal. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The veteran's testimony with respect to what he was told during active service, while presumed to be credible for purposes of this issue, is neither new nor material because it is cumulative of evidence contained in his service medical records which was of record at the time of the June 1979 rating decision, and because it is not probative in establishing that he currently has arthritis in his ankles. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Neither does the clinical evidence submitted subsequent to the June 1979 rating decision establish that arthritis of the ankles exists. Since there has been no new and material evidence submitted subsequent to the June 1979 decision, the claim for service connection for arthritis of the right and left ankles was improperly reopened and the June 1979 rating decision denying service connection for arthritis of the right and left ankles is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302. III. Increased Rating, Right Calf Service medical records reflect that the veteran was hospitalized in April 1972 with the primary complaint of gunshot wounds to the right and left legs. The wounds were sustained on March 27, 1972. On the day of injury, the veteran underwent debridement and delayed primary closure of the wounds. He continued to have some problem with the wounds with the presence of continuing granulation tissue without epithelialization on the right calf. There was a small, open, granulating wound approximately 5 centimeters across which obliquely crossed the right calf and the posterior aspect of the leg. There was no motor deficit in the right leg. There was some diminished sensation over the lateral aspect of the right foot, but no noticeable vascular deficit. On May 17, 1972, the veteran had a split-thickness skin graft taken from the right buttock and placed on the right calf. An electromyogram revealed no motor deficit in the right leg and the veteran walked without difficulty. He was returned to duty in June 1972. The report of a July 1972 service examination notes numbness over the lateral aspect of the right foot and the right calf for 4 inches below the scar. Strength and range of motion of the right leg were normal. There was a 4-inch scar on the posterior right calf. The report of the veteran's August 1978 service separation examination notes no abnormality of the right calf. The report of a May 1979 VA examination states that the veteran reported that he had gunshot wounds to both legs. He indicated that they were superficial wounds and were not incapacitating and not bothering him. The diagnoses included gunshot wounds, both legs, no residuals. A rating decision in June 1979 granted service connection for a gunshot wound scar on the posterior right calf, and assigned a noncompensable evaluation from November 2, 1978. The report of an August 1991 VA orthopedic examination states that the veteran reported numbness, tingling and paresthesia in his right foot. He indicated that there was a sharp burning type of pain with radiation into his foot, but denied any give way or lower extremity weakness. He stated that the symptoms had increased in intensity and duration over the previous 3 to 4 months. Examination revealed some tenderness to light touch over the lateral border of his right foot. The impression included status post gunshot wound to the right calf with injury to the superficial peroneal nerve, moderately symptomatic. The report of an August 1991 VA neurology examination states that the veteran reported that he had some numbness and tingling below the knee on the right, as well as some fatigue and weakness. He reported no pain. On physical examination, the bulk of the right calf was less than the left calf. There was some muscle tissue loss in the posterior aspect of the superior right calf underlying the surgical scar, which measured approximately 10 centimeters in its transverse dimension. The scar was well healed and nontender. There was normal muscle tone in both lower extremities and strength testing was described as fairly normal, with a hint of 4 plus/5 distal extensor weakness in the right lower extremity compared to the left. Distal flexor strength was 4/5 in the right lower extremity distally and normal on the left. The veteran had some difficulty with toe walking on the right side, but none on the left. He could do heel walking very well and tandem gait was normal. There was no footdrop. Reflexes were 2/4 over both knees and both ankles, and they were symmetrical. There was diminished pinprick sensation in an area approximating a right peroneal nerve injury. The impression included history of bullet injury to the right calf with loss of muscle tissue, as well as partial injury to the right peroneal nerve with difficulty with gastrocnemius strength on the right side due to loss of bulk of the muscle, as well as some distal extensor weakness in the right lower extremity and numbness and tingling due to peroneal nerve injury. During the veteran's personal hearing on appeal held before a hearing officer in February 1993, he testified that the bullet injury was a through-and-through wound. He indicated that he experienced almost constant pain in the leg, as well as numbness, fatigue, and giveway. Again, the Board finds that the veteran's testimony is credible and probative to the extent that it describes factors which are capable of observation by a layperson. However, the clinical evidence of record does not support his testimony that the gunshot wound to the right calf was a through-and-through wound. Neither entry nor exit points were identified in the service medical records. Service medical records identify the wound as obliquely crossing the right calf. The service medical records are more probative than the veteran's current testimony and the Board finds that the gunshot wound to the right calf was not a through-and-through wound. In reaching its decision, the Board has considered the complete history of the disability in question, as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1994). By rating decision in March 1992, a 10 percent evaluation was assigned for residuals of a gunshot wound to the right calf. That evaluation is currently in effect. A noncompensable evaluation is warranted for mild incomplete paralysis of the musculocutaneous nerve (superficial peroneal nerve). A 10 percent evaluation requires moderate incomplete paralysis. A 20 percent evaluation requires severe incomplete paralysis, and a 30 percent evaluation requires complete paralysis with weakened eversion of the foot. 38 C.F.R. Part 4, Code 8522. A noncompensable evaluation is warranted for slight injury to Muscle Group XI (posterior and lateral crural muscles). A 10 percent evaluation requires moderate injury. A 20 percent evaluation requires moderately severe injury and a 30 percent evaluation requires severe injury. 38 C.F.R. Part 4, Code 5311. A through-and-through injury, with muscle damage, is always at least a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.72. The criteria for an evaluation greater than 10 percent have not been met or approximated. As previously noted, the bullet wound was not a through-and-through injury. The injury to the veteran's right calf, Muscle Group XI, most nearly approximates the type of disability described as moderate disability of the muscles. 38 C.F.R. § 4.56. There are signs of moderate loss of muscle substance and while minimal, there is noticeable weakness in the right lower extremity when compared to the left. Moderately severe muscle disability is not demonstrated as the clinical evidence is not positive for marked or moderately severe loss of strength on the right when compared to the left, nor is there indication of moderate loss of deep fascia or moderate loss of muscle substance or normal firm resistance of muscles when compared with the left leg. The report of an August 1991 VA electroneuromyographic examination states that the findings, together with the clinical history and examination, suggest old trauma to some portion of the sciatic nerve bilaterally, likely the peroneal part. The veteran does have diminished pinprick sensation, but deficit in his reflexes is not noted and there is no footdrop. Therefore, moderate most nearly represents the degree of incomplete paralysis of his superficial peroneal nerve. Accordingly, under any applicable schedular criteria, 10 percent is the highest evaluation which may be assigned. The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. Residuals of a gunshot wound to the veteran's right calf have not been shown, in and of themselves, to have caused sufficient muscle or nerve damage to affect the veteran's gait. There is no more than moderate muscle injury and strength testing is fairly normal. Neurological impairment is limited, on objective clinical demonstration, to numbness and tingling, with the orthopedic examiner, in August 1991, characterizing the disability as moderately symptomatic. The percentage ratings set forth in the rating schedule are generally considered adequate to compensate for considerable loss of working time due to exacerbations proportionate to the severity of the grade of disability assigned. Therefore, the pain and weakness reported by the veteran have not been shown to cause functional impairment greater than that anticipated by the 10 percent schedular evaluation assigned. 38 C.F.R. § 4.40. IV. Clear and Unmistakable Error, Arthritis of the Ankles It has been contended that the June 1979 rating decision, which denied service connection for arthritis of the ankle, was clearly and unmistakably erroneous. The Board must address this claim by evaluating the evidence of record at the time of the rating action in question. Clear and unmistakable error is error of fact or law which is "very specific and rare." It is of a type "that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable." Fugo v. Brown, 6 Vet.App. 40, 43-44 (1993); Russell v. Principi, 3 Vet.App. 310, 313 (1992). The service clinical evidence, as well as post service evidence which existed at the time of the June 1979 rating decision has been previously set forth. As noted, references to arthritis of the ankles during service were, in fact, a reference to arthritis of the veteran's talonavicular joints in his feet. The veteran was afforded a VA examination in May 1979, with X-rays of his ankles taken at that time. The findings indicated no evidence of arthritis of the ankles. In order for service connection to be granted for a disability, it must be shown that such disability exists. On the basis of the record, it cannot be said that the June 1979 rating decision was without basis or that it was clearly and unmistakably erroneous in finding, in substance, that the veteran did not have arthritis in his ankles at the time the rating action was accomplished. Therefore, the rating action denying service connection for arthritis of the ankles, because such arthritis was not shown by the evidence of record, may not be set aside on the basis of being clearly and unmistakably erroneous because such error, as defined in Fugo, 6 Vet.App. at 43-44, is not shown. 38 U.S.C.A. §§ 1110, 7105; 38 C.F.R. § 3.105(a). V. Clear and Unmistakable Error, Residuals of a Gunshot Wound to the Right Calf It is also contended that the June 1979 rating decision which assigned a noncompensable evaluation for residuals of a gunshot wound to the right calf was clearly and unmistakably erroneous. The kind of error required to be considered clearly and unmistakably erroneous has been previously set forth. Fugo, 6 Vet.App. at 43-44; Russell, 3 Vet.App. at 313. Again, the Board must address this claim by evaluating the evidence of record at the time of the rating action in question. The evidence which was of record concerning the veteran's residuals of a gunshot wound to the right calf has previously been set forth. The service medical record which reports treatment for the wound to the veteran's right calf does not delineate it as being a through-and-through wound. The wound is described as obliquely crossing the right calf and the posterior aspect of the leg. There are no entry or exit points identified. Service medical records following the 1972 treatment for the wound indicate no further complaint or treatment with respect to the veteran's residuals of a gunshot wound to the right calf. The report of the May 1979 VA examination reflects that the veteran reported that the residuals of the gunshot wound were not incapacitating and were not bothering him. The diagnosis indicated that there were no residuals. On the basis of this record, it cannot be said that the June 1979 rating decision as clearly and unmistakably erroneous in finding, in substance, that there was not more than mild or slight disability residual to the gunshot wound to the right calf. The evidence did not reflect that the gunshot wound was a through-and-through wound indicating that it should be rated as moderate. Therefore, the evidence does not compel the conclusion that a compensable evaluation, under the criteria previously set forth in the analysis with respect to the issue of an increased rating, was warranted. Therefore, the noncompensable evaluation for residuals of a gunshot wound to the right calf, assigned by the June 1979 rating decision, may not be set aside on the basis of being clearly and unmistakably erroneous because such error is not shown. Fugo, 6 Vet.App. at 43-44; 38 U.S.C.A. §§ 1110, 7105; 38 C.F.R. § 3.105(a). ORDER Service connection for arthritis of the talonavicular joint of the right foot is granted. New and material evidence not having been submitted to reopen the veteran's claim for service conection of arthritis of the right and left ankles, the benefit sought on appeal is denied. An increased rating for residuals of a gunshot wound to the posterior right calf with superficial peroneal nerve damage is denied. Clear and unmistakable error in a rating decision of June 1979, denying service connection for arthritis of the right and left ankles is not shown. To this extent, the appeal is denied. Clear and unmistakable error in a rating decision of June 1979, assigning a noncompensable evaluation for residuals of a gunshot wound to the posterior right calf, is not shown. To this extent, the appeal is denied. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.