BVA9504687 DOCKET NO. 90-19 979 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the back with lumbar scoliosis. 2. Entitlement to an evaluation in excess of 10 percent for myositis of the back. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Paul J. Somelofske, Associate Counsel INTRODUCTION The veteran served on active duty from April 1945 to May 1946, and from January 1951 to September 1952. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a February 1990 rating decision of the Department of Veterans Affairs (VA), Nashville, Tennessee, Regional Office (RO), that denied an evaluation in excess of 10 percent for myositis of the back. A subsequent rating decision, dated in November 1991, denied service connection for degenerative arthritis of the back with lumbar scoliosis. This case was previously before the Board and was remanded to the RO in June 1991, December 1992, and June 1993. In October 1994, the Board decided to undertake additional inquiry concerning the medical questions involved in this case and requested an opinion from a medical expert associated with the VA. In a letter dated that month, the veteran was notified of the Board's intent to do so. In November 1994, the requested medical opinion was received by the Board. In a letter dated later that month, the veteran was provided a copy of the medical opinion and was informed that he had sixty (60) days to submit any additional evidence or argument. In December 1994, the veteran's representative was provided a copy of the medical opinion. In February 1995, the veteran's representative informed the Board that no additional argument would be submitted. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error by denying service connection for degenerative arthritis of the back with lumbar scoliosis and an evaluation in excess of 10 percent for myositis of the back. The veteran asserts that he has had problems with his lower back since he was discharged from service. He maintains that his service-connected myositis of the back has produced long-standing difficulties and has progressively worsened over time. He states that he now has pain and stiffness in his lower back when standing up for long periods of time or on movement, and that the pain radiates down his legs. He contends that he has degenerative arthritis of the back with lumbar scoliosis and that such disability is related to service and his service-connected myositis of the back. It is noted that the veteran's representative has argued that the VA examination in September 1993 is inadequate since the examiners "were unable to provide an exact etiology of the veteran's back pain." A request has been made that the Board consider all pertinent regulatory criteria in its appellate review. 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 veteran has not submitted a well-grounded claim for service connection for degenerative arthritis of the back with lumbar scoliosis, and that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for myositis of the back. FINDINGS OF FACT 1. There is no evidence of record of arthritis of the back in service or within one year after service, nor is there any evidence of record relating post-service findings of arthritis of the back to the veteran's service or to his service-connected myositis; the veteran does not have lumbar scoliosis. 2. All relevant evidence necessary for an equitable disposition of the veteran's claim for an evaluation in excess of 10 percent for myositis of the back has been obtained by the RO. 3. Limitation of motion of the spine is for the most part due to the veteran's nonservice-connected degenerative arthritis of the back and not service-connected myositis. 4. The veteran's service-connected myositis of the back, which is most closely analogous to lumbosacral strain, is manifested by complaints of painful motion with no objective findings of paraspinal muscle spasm, swelling or inflammation. 5. The evidence of record does not reflect an unusual disability picture with such factors as frequent periods of hospitalization or marked interference with employment due to the veteran's service-connected myositis of the back. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for degenerative arthritis of the back with lumbar scoliosis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an evaluation in excess of 10 percent for myositis of the back are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Code 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background The veteran's induction examination report, dated in March 1945, reveals no complaints, treatment or findings pertaining to the veteran's back. An inservice treatment record, dated in August 1945, indicates that the veteran sought treatment for pain in the lumbosacral region. Physical examination revealed lumbar muscle spasm with tenderness. The assessment was acute lumbar myositis which did not exist prior to service. The veteran was discharged to duty approximately four days later with no muscle spasm or tenderness. In October 1945, the veteran again sought treatment for constant back pain. It was noted that the veteran had been having back ache for approximately nine months, but that there was no indication of trauma. Physical examination revealed pain on forward and lateral bending. The diagnosis was acute lumbar myositis which did not exist prior to service. The veteran was subsequently hospitalized later that month for observation. Physical examination showed marked spasm of the lumbosacral muscle groups, with marked limitation of forward bending, resulting in slight torsion, and marked limitation of all other motions except rotation. Straight leg raising was limited by pain in the lumbosacral region. X-rays showed no abnormality of the lumbosacral spine. The diagnosis was acute lumbar myositis which did not exist prior to service. The veteran was then transferred to a Naval hospital within the continental United States later that month. General examination was essentially negative. A local moderate lumbar lordosis was observed and movements of the trunk were guarded. Spasm of the lumbosacral muscles was noted. Forward bending was markedly limited; lateral bending and extension were within normal limits. The back pain was noted to be centered in the region of the fifth lumbar vertebra and sacrum and did not radiate. The diagnosis was acute lumbar myositis which did not exist prior to service. In December 1945, the veteran again sought treatment for low back pain. Physical examination revealed a moderate lumbar lordosis, with minimal tenderness over the left side of the sacrum. No muscle spasm was noted; straight leg raising was negative. X- rays of the lower five thoracic vertebrae and the entire lumbar spine showed no bone or joint pathology. The diagnosis was acute lumbar myositis which did not exist prior to service. The veteran was transferred to the United States Naval Hospital in Memphis, Tennessee, later that month. Orthopedic examination revealed lateral flexion of the lumbar spine to be slightly limited by pain over the sacrum; no point tenderness or other limitation of motion was noted. No abnormal curvature of the spine was observed. In January 1946, while still hospitalized, the veteran was noted to have marked rotation to the left on forward flexion to compensate for the pain. He was sent to the orthopedic clinic in February 1946 where he was placed in traction for two weeks. He subsequently complained of pain and stiffness. X-rays showed no bone or joint abnormality. In March 1946, physical examination revealed tenderness on pressure of the lower mid-spine, a moderate lordosis, and slight scoliosis convexity to the left. On flexion of the spine, the veteran had to shift to the left to obtain more than moderate flexion. A body cast was recommended. The diagnosis was changed from acute lumbar myositis to no disease by reason of convalescent leave. In April 1946, the veteran had his body cast removed; he still complained of pain centered over the lumbar vertebrae. The diagnosis was changed from no disease by reason of convalescent leave to acute lumbar myositis by reason of former status. In May 1946, physical examination revealed no pain except on flexion. The lumbar vertebrae appeared to have motion on picking up a coin, although the veteran's movement was very guarded. A brace was recommended. X-rays of the lumbosacral spine revealed no bone or joint pathology. The veteran's discharge examination report, dated in May 1946, notes a history of frequent pains in the lower lumbar region. The spine and extremities were noted to be normal. He was found to be physically qualified for discharge. Based on the findings in service, in a rating decision dated in May 1946, the veteran was service connected for myositis of the back and was assigned a 10 percent evaluation. On VA examination in November 1947, the veteran complained of low back pain. Physical examination revealed low grade lumbar scoliosis to the left with definite tenderness over the lumbosacral joint. He had full range of motion. X-rays identified no significant changes. The diagnosis was mild to moderate, chronic, lumbosacral strain. Based on the results of this examination and the application of a new schedule for rating disabilities as provided by law, the veteran's 10 percent evaluation for myositis of the back was reduced to zero percent in a rating decision dated in November 1947. Service connection for lumbar scoliosis was denied on the basis that such disability was a constitutional or developmental abnormality and not a disability under the law. The veteran's reenlistment examination report, dated in June 1950, reveals no complaints, treatment or findings pertaining to the veteran's back. His spine and extremities were noted to be normal. The veteran did indicate that he had been receiving disability compensation from the VA because of a strained muscle in the back, but that such compensation had been discontinued. On examination in November 1950, no complaints or defects pertaining to the veteran's back were noted. X-rays of the lumbar spine and both hips failed to reveal any evidence of fracture or other pathology. The veteran again indicated that he had previously had a strained muscle in the back for which he was hospitalized and had been receiving compensation from the VA. The veteran's separation examination report, dated in September 1952, revealed no complaints, defects or findings pertaining to the veteran's back. On VA examination in November 1981, the veteran complained of pain in the lower back and legs, difficulty bending over, and pain upon standing erect and standing for long durations. On physical examination, the veteran was able to walk and stand erect without any pain noted; he had difficulty touching his toes. Pain in the lower back upon movement in any direction was noted. X-rays revealed minimal degenerative changes in the dorsal spine. The diagnosis was lower back pain. Based on these findings, the veteran's zero percent evaluation for myositis of the back was increased to 10 percent in a rating decision dated in December 1981. In February 1985, the veteran sought treatment for lower back pain. Physical examination revealed range of motion of the lumbosacral spine to be good. X-rays of the lumbosacral spine revealed minimal degenerative disc disease in the mid-lumbar spine, with a moderate degenerative facet joint noted at the L5- S1 level. There was no evidence of fracture, misalignment or bony destruction. The hip joints and sacroiliac joints had minimal degenerative arthritic changes. In a rating decision dated in February 1986, the veteran's 10 percent evaluation for myositis of the back was confirmed and continued on the basis that the current medical evidence did not show an increase in the severity of the veteran's service-connected back disability. An examination report from a private physician, Grafton Thurman, M.D., dated in May 1988, reveals that the veteran was examined for various disabilities, including back trouble with peripheral arthritis, especially in the left hip. The examination report indicates that the veteran complained of lower back pain which has been present for 40 years. Physical examination of the back revealed full range of motion of the cervical spine, with limitation of motion of the lumbosacral spine. There was no evidence of paraspinal spasm or nerve root compression; the peripheral joints had full range of motion. X-rays of the spine showed modest anterior lipping between the L2 and L3, L3 and L4, and L4 and L5 vertebrae. The disc spaces were intact and normal lumbar lordosis was present. There was no evidence of significant osteoporosis or clinically significant vertebral collapse. The spine was stable in alignment with no evidence of calcification of the anterior ligament. Dr. Thurman's impression was low back pain secondary to modest degenerative arthritis of the lumbosacral spine. VA outpatient treatment records from June through July 1989, reveal that the veteran sought treatment for lower back pain which he reported radiated down his right leg; he indicated that he had had back pain since he was about 18 years old. Examination of the back revealed spinal tenderness over the L2-L3 area; pain was noted on movement and flexing. The impression of the examiner was mechanical back pain. Lumbosacral spine films were taken which showed mild degenerative joint disease; no evidence of fracture was seen. In a rating decision dated in July 1989, the veteran's 10 percent evaluation for myositis of the back was confirmed and continued on the basis that the evidence did not warrant an increased evaluation. A VA outpatient treatment record, dated in January 1990, shows that the veteran complained of back pain and pain radiating into his right hip. X-rays revealed degenerative joint disease at the L4-L5 and L5-S1 vertebrae. The assessment was chronic back pain secondary to arthritis. Based on these findings, in a rating decision dated in February 1990, the veteran's 10 percent evaluation for myositis of the back was confirmed and continued. It was noted that the veteran had nonservice-connected scoliosis. A VA examination report, dated in September 1991, reveals that the veteran complained of back pain and limited mobility. A history of scoliosis, muscle spasm, sway back and "pinched nerves" was given. On examination, the veteran had full range of motion of the back, but with dysrhythmia. Mild scoliosis of the lumbosacral spine with lumbar lordosis was noted. X-rays revealed minimal degenerative changes involving the cervical, dorsal and lumbosacral spine, with minimal spondylolisthesis of the L3-L4 vertebrae. The diagnosis was degenerative arthritis of the lumbosacral spine, moderately severe, with "retrolisthesis" of the L3-L4 vertebrae. In a rating decision dated in November 1991, the RO denied service connection for degenerative arthritis of the back with lumbar scoliosis. The veteran's 10 percent evaluation for myositis of the back was continued. A VA examination report, dated in September 1993, reveals that the veteran complained of having pain in the lower back when sitting or standing for prolonged periods of time, and pain radiating to his lower extremities. Normal spinal curvature was noted, with tenderness to deep pressure over the lumbosacral area. He had 30 degrees of forward flexion, 10 degrees of extension, 10 degrees of lateral bend to each side, and 20 degrees of rotation to the left and right. He had full range of motion of both hips and knees with no muscular atrophy or demonstrable loss of sensation noted. Examination of motor strength showed good strength in all major muscle groups; examination of the sensory system showed decreased pin prick sensation over the lateral portion of the left leg in roughly the L5 distribution. At the time of examination, no pain or paraspinal muscle spasm was noted in the area of the back demonstrated by the veteran to be painful. X-rays of the lumbosacral spine revealed marked narrowing of the intervertebral disc spaces, particularly at the L3-L4 and L5-S1 vertebrae, and minimal degenerative changes throughout the lumbar spine. The examiner opined that the veteran had chronic low back pain, possibly with some very mild L5 radiculopathy producing decreased sensation, since no changes were noted in reflex examination. As to the etiology of the veteran's back pain, the examiner opined that: This is quite a large question since almost everyone experiences some degree of back pain at different times during their lives. In general, back pain is due to paraspinal muscle spasm. This can occur from excessive worry and can, also, occur associated with bony disease when the muscles contract to try to keep the spine straight. Muscle spasm in the back can also occur from heavy lifting. In general, there is wear and tear on the lumbar spine during the course of a person's life so back pain becomes more common as one gets older. The final diagnoses were degenerative disc disease at the L3-L4 and L5-S1 vertebrae, and severe degenerative arthritis throughout the lumbar spine. In October 1994 the Board requested an opinion from a medical expert associated with the VA as to whether the veteran's scoliosis, present in service, was congenital or acquired, and whether the veteran's currently diagnosed degenerative arthritis of the back is related to his service-connected myositis or scoliosis, if found to be acquired. In November 1994, the medical expert opined that, based on radiographs obtained in the 1940s, and as recently as 1993, which failed to show any intrinsic abnormalities in curvature of the spine, the veteran does not have significant scoliosis of the spine. He further opined that the fact that the veteran's lower back had a scoliotic appearance to some examiners, but not all, implies that the observation of the deformity was due to paraspinous muscle spasm rather than intrinsic deformity of the spine, and is therefore not physiologically significant. In addressing the second question, the medical expert explained that the current definition of the term "myositis" is completely different from the definition used in the 1940s and 1950s. For the purposes of his discussion, the medical expert stated that "myositis" would be referred to as a condition which would now be called lumbar strain, rather than the current usage of the term which implies a diffuse inflammatory condition of the muscles, usually due to an autoimmune disease. The medical expert opined that the veteran's currently diagnosed degenerative arthritis of the spine is not related to his service-connected disability. The severity of the veteran's degenerative arthritis, he explained, as described by recent physical and radiographic examinations is consistent with that expected for a patient of his age. He then concluded by stating that there is no known etiologic relationship between generalized osteoarthritis of the spine and lumbar strain (or myositis as it was known in the 1940s). Service connection for degenerative arthritis of the back with lumbar scoliosis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served ninety (90) days or more during a period of war and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). In addition, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). Service connection requires a finding of the existence of a current disability which has a definite relationship with a disease or injury in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). A person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim; it is a nullity in law and may not be adjudicated. Grottveit v. Brown, 5 Vet.App. 91 (1993). Initially, it is noted that the veteran's service medical records include some reports noting a lordosis of the spine and scoliosis was noted in March 1946; however, most work-ups in service did not reveal any abnormal spinal curvature. In November 1994, a medical expert reviewed the record and opined that the veteran does not have significant scoliosis of the spine. He stated that the fact that the veteran's lower back had a scoliotic appearance to some examiners, but not all, implies that the observation of the deformity was due to paraspinous muscle spasm rather than intrinsic deformity of the spine, and is therefore not physiologically significant. The veteran's service medical records for both periods of service are negative as to findings of degenerative arthritis of the back. The first evidence of degenerative arthritis of the back is in November 1981, almost thirty years after the veteran's separation from service. This finding, and subsequent findings of arthritis of the back, however, do not relate degenerative arthritis of the back to the veteran's service. In addition, there is no evidence of record relating degenerative arthritis of the back to the veteran's service-connected myositis of the back. The veteran's contention that the September 1993 VA examination was cursory and did not provide an opinion as to the exact etiology of the veteran's back pain is noted. However, in November 1994, a medical expert opined that the veteran's currently diagnosed degenerative arthritis of the spine is not related to his service-connected myositis. He explained that the severity of the veteran's degenerative arthritis, as described by recent physical and radiographic examinations is consistent with that expected for a person of his age, and concluded by stating that there is no known etiological relationship between generalized osteoarthritis of the spine and lumbar strain (or myositis as it was known in the 1940s). The veteran contends that he has degenerative arthritis of the back with lumbar scoliosis and that such disability is related to service and his service-connected myositis of the back. The veteran, however, is a lay person and is not competent to offer medical opinions regarding the etiology of his current disabilities. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As there is no convincing evidence of arthritis of the back in service or for many years after service and no evidence of record to relate currently diagnosed degenerative arthritis of the back to service or to his service-connected myositis, and as it has been determined by a medical expert that the veteran does not have significant scoliosis of the spine, but rather deformity that was due to paraspinous muscle spasm, it must be concluded that the veteran's claim for service connection for degenerative arthritis with lumbar scoliosis is not well grounded. 38 U.S.C.A. § 5107(a). Increased evaluation for myositis of the back The Board has carefully considered the evidence compiled by and on behalf of the veteran. It has been determined that the veteran's claim for an evaluation in excess of 10 percent for myositis of the back is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented a claim that is plausible. This case was previously remanded to the RO in June 1991, December 1992 and June 1993, to afford the veteran a VA examination, due process of law, and for further development, respectively. We are satisfied that all relevant facts have been adequately developed to the extent possible with respect to the veteran's claim for an evaluation in excess of 10 percent for myositis of the back; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. As the medical expert in November 1994 opined that the veteran's service-connected myositis of the back is most closely analogous to lumbosacral strain, the Board will evaluate the veteran's service-connected disability accordingly. A noncompensable evaluation is warranted for lumbosacral strain with slight subjective symptoms only. A 10 percent evaluation for lumbosacral strain is warranted for characteristic pain on motion. A 20 percent evaluation for lumbosacral strain requires muscle spasm on extreme forward bending, with loss of lateral spine motion, unilateral, in a standing position. A 40 percent evaluation requires severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a Diagnostic Code 5295. On VA examination in September 1991, the veteran exhibited full range of motion of the back; there was no evidence of swelling, inflammation or muscle spasm in the lumbar region. X-rays revealed minimal degenerative changes involving the spine. The most recent VA examination report of record, dated in September 1993, shows that the veteran exhibited no pain on movement or paraspinal muscle spasm in the lumbar region. There was some tenderness to deep pressure over the lumbosacral area noted, but no evidence of swelling or inflammation. While the veteran did exhibit significant limitation of motion of the lumbar spine and X-rays showed degenerative changes throughout the lumbar spine, it is apparent that such limitation of motion is the result of the veteran's nonservice-connected degenerative arthritis rather than the result of his service-connected myositis of the back. This assessment is based primarily on the veteran's concession in his April 1990 substantive appeal that his service-connected myositis of the back is not that symptomatic and that the pain and limitation of motion experienced does not affect the muscles in the lumbar region. This assessment is also based on the January 1990 VA outpatient treatment record which gives an assessment of chronic back pain secondary to arthritis, the lack of objective findings of muscle spasm, swelling or inflammation on VA examination in September 1991 and September 1993, and the November 1994 medical expert opinion stating that the veteran's degenerative arthritis is not related to his service-connected disability. While the veteran experiences limitation of motion of the back, currently, the dysfunction became manifest after the degenerative disease of the spine increased in severity, while, by all accounts, the myositis has remained relatively stable. The veteran's service-connected disability is manifested primarily by painful motion. As there is no current evidence of muscle spasm or loss of lateral spine motion, the disability picture more nearly approximates the criteria for a 10 percent evaluation. Accordingly, an evaluation in excess of 10 percent for myositis of the back is not warranted. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5295. An extraschedular evaluation with regard to the veteran's service-connected myositis of the back has also been considered. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). We note that the veteran has pain and limitation of motion of the back. However, there is no evidence of record to reflect an unusual disability picture, including such factors as marked interference with employment or the necessity of frequent periods of hospitalization, so as to render impractical the application of the regular schedular criteria. Therefore, an extraschedular evaluation for myositis of the back is not warranted. Id. ORDER The veteran's claim for service connection for degenerative arthritis with lumbar scoliosis is dismissed. An evaluation in excess of 10 percent for myositis of the back is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals (Continued on next page) 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.