BVA9507421 DOCKET NO. 93-05 439 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. R. King, Associate Counsel INTRODUCTION The appellant served on active duty from January 1953 to February 1979. This matter is before the Board of Veterans Appeals (Board) on appeal from a November 1991 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's application to reopen a claim of entitlement to service connection for hearing loss based on new and material evidence and which denied the appellant's claim of entitlement to service connection for tinnitus. CONTENTIONS OF APPELLANT ON APPEAL The appellant maintains, in essence, that the RO erred in not reopening his claim for service connection for sensorineural hearing loss and in not granting his claim for service connection for tinnitus, as he was exposed to high levels of noise during the performance of his military duties. He avers that the failure of the military to provide some form of protection for his ears has resulted in both tinnitus and hearing loss. He further contends that there are additional service medical records that were prepared during "combat" that are missing and which would support his claim. 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 new and material evidence has not been submitted in support of the application to reopen a claim for service connection for hearing loss. The Board also decides at this time that the weight of the evidence is clearly against the claim for service connection for tinnitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable determination in the appellant's claims have been obtained by the RO. 2. The appellant's claim of entitlement to service connection for hearing loss was denied by the RO by rating determination dated in May 1979. 3. The appellant was notified of that decision and of his right to appeal by a letter dated in June 1979. Although the appellant filed a timely Notice of Disagreement in February 1980 with several other matters addressed in the notification letter, he did not express disagreement with the denial of service connection for a hearing loss. 4. The additional evidence received since the May 1979 RO decision includes post-service private and VA medical evidence showing that the appellant currently has gradual-onset, bilateral high frequency sensorineural hearing loss. This evidence is cumulative and does not tend to show that the current hearing loss was present in service or proximate thereto or is etiologically related to any event or events which occurred in service. 5. Tinnitus did not have its onset during the appellant's military service, and any current tinnitus is not causally related to service. CONCLUSIONS OF LAW 1. The evidence received since the RO denied the appellant's claim of entitlement to service connection for bilateral hearing loss is not new and material and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.156(a), 20.1105, 20.302(a) (1994). 2. Tinnitus was not incurred or aggravated during the appellant's active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137,1154(b), 5107 (West 1991); 38 C.F.R. § 3.303, 3.304(d), 3.306, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the claim of entitlement to service connection for tinnitus is well-grounded. This finding is based upon the appellant's evidentiary assertions and the clinical evidence of record showing that tinnitus has been diagnosed. King v. Brown, 5 Vet.App. 19 (1993). With respect to the application to reopen the claim for service connection for a hearing loss, the Board has noted the appellant's assertions concerning the alleged existence of additional service medical records, and these assertions are discussed in detail below. The Board has also consider the decisions of the United States Court of Veteran's Appeals (Court) of White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992), concerning the circumstances where the Court has held that, even without the submission of new and material evidence, the duty to assist may still be triggered under appropriate circumstances. The Board finds that VA has met its statutory duty to assist the appellant in the development of evidence pertinent to his claim for service connection for tinnitus in accordance with 38 U.S.C.A. § 5107 (West 1991), and that "appropriate circumstances" are not shown to trigger any further duty to assist the appellant with regard to the application to reopen a claim for service connection for a hearing loss. Service Connection for Bilateral Hearing Loss based on New and Material Evidence I. Governing Law and Procedural Background 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). Service connection may 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). The Court, in Cromley v. Brown, No. 93-793 (U.S. Vet. App. Feb. 7, 1995), observed that "hearing loss is not . . . a chronic disease entitled to any presumption of service connection despite VA's practice . . . of treating hearing loss as entitled to a presumptive period." Slip op. at 3-4. The governing law provides that where certain chronic diseases, including organic diseases of the nervous system, become manifest to a compensable degree within one year of separation from a period of active service, that disease may be presumed to have been incurred or aggravated in service, notwithstanding that there is no record of evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). A sensorineural hearing loss involves a cranial nerve, a part of the nervous system under the Schedule for Rating Disabilities, ratable under the diagnostic codes for organs of special sense. 38 C.F.R. §§ 4.85, 4.124a (Diseases of the Cranial Nerves). In this case, however, the Board notes that this provision of the law makes no difference to the disposition of the appeal, and thus whether the presumptive period does or does not apply is a moot question. The appellant did not file a timely appeal from the written notification of the May 1979 rating decision by the RO which denied service connection for bilateral hearing loss. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1994). In this regard, the Board notes that a controlling regulation provides: A written communication form a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (1994). Following receipt of the June 1979 notification letter, the veteran submitted a written communication in January 1980 that was accepted by the RO as a notice of disagreement with some of the matters addressed in the notification. Upon review of the veteran's communication of January 1980, the Board concurs with the interpretation of the RO that the veteran's statements were not "in terms which can be reasonably construed as disagreement" with the denial of service connection for a hearing loss. The veteran's comments, fairly read, only expressed disagreement with the ratings assigned for his service connected disabilities. Accordingly, the May 1979 denial became final and the claim will not thereafter be reopened or allowed, except on the submission of new and material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1994). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). The Court has set forth a two-step analysis to be applied when a claimant seeks to reopen a claim. The Board must first determine whether the evidence is new and material and, if so, the case will be considered to be reopened, and the claim must then be evaluated in light of the entire evidence of record, both old and new. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The Court held in Chavarria v. Brown, 5 Vet.App. 468 (1993), that: "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand and which must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Citing Cox v. Brown, 5 Vet.App. 95 (1993). II. Factual Background Evidence of record at the time of the May 1979 decision. The appellant's service medical records were found by the RO to be negative for complaints or findings of bilateral hearing loss. Numerous instances of audiometric testing and clinical evaluation of the ears appear in the service medical records and have been carefully analyzed by the Board. Additionally, Hearing Conservation Data documents are a part of the appellant's service medical records which show that the appellant's hearing was evaluated on a periodic basis due to his military duties as a flight line supervisor. It is apparent that the appellant underwent rather frequent physical examinations during his period of military service and that hearing evaluations were a part of each examination. In general, the audiometric findings reflect that the appellant's hearing was normal throughout his period of active duty. Specifically, a January 1953 Report of Medical History reflects neither complaint nor clinical finding pertaining to the ears. He also stated that he had not worn a hearing aid. The appellant's hearing was stated to be 15/15 to whispered voice testing. Audiometric testing was not performed at this time. Similarly, an April 1957 Report of Medical examination reflects that the appellant's ears were evaluated as being normal and his hearing was 15/15 to whispered voice testing. The appellant was examined in April 1961. At this time the authorized audiological evaluation revealed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 15 LEFT 10 10 5 25 15 Speech audiometry was not performed as a part of this examination. Hearing Conservation Data records of January 1963 show that the appellant was issued and always or frequently used ear protection during exposure to loud noise. Pure tone thresholds were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 -5 5 LEFT 10 5 10* 0 0 [*Due to a hole punched in the page, the entry is not entirely clear, it may have been 0, but it was not greater than 10.] Speech audiometry testing was not performed as part of this evaluation. A November 1963 Report of Medical Examination reflects that the appellant's ears and ear drums were clinically evaluated as normal bilaterally. On the authorized audiological evaluation in, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 -5 -5 5 LEFT 5 5 5 0 5 Speech audiometry testing was not performed; whispered voice testing was 15/15. The appellant underwent a January 1965 medical examination in relation to local flying duties. The ears and ear drums were clinically evaluated as normal. On audiometric testing, threshold hearing levels were as follows: On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 -5 -5 5 LEFT 5 0 5 -5 5 Speech audiometry was not performed as a part of this examination. Similarly, the appellant was examined in January 1966 and December 1966, at which time his ears and ear drums were clinically evaluated as normal. The appellant reported that he had had no ear trouble and that he had never worn a hearing aid. He described his health as good. Audiometric testing revealed pure tone thresholds as follows in the January examination: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 5 -5 -5 LEFT 0 5 10 5 0 Speech audiometry findings do not appear in the record as a part of this examination. In the physician's summary section of the examination report, the appellant was noted to have denied any significant medical history other than what was stated. An October 1966 Hearing Conservation evaluation and the December 1966 Report of Medical Examination reflect findings elicited on audiometric examinations that were equal to or better than those in January. The Board notes parenthetically that the service departments altered from American Standards Association (ASA) to International Standards Organization (ISO) threshold scales in 1967. This change has no substantive impact on this case. A September 1968 medical examination, performed in relation to the appellant being qualified for flying class III, revealed that the appellant's ears were clinically evaluated as normal. Additionally, the appellant's ear drums were noted to be normal bilaterally. Audiometric testing was performed, which revealed the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 5 10 10 LEFT 5 20 15 10 5 Speech audiometry was not performed at this time. In a section denoting a summary of defects and diagnoses, the appellant's hearing was said to be class B. Audiometric testing performed in January 1969 revealed the same findings. The appellant underwent audiometric testing as a part of a September 1969 Annual Medical Examination. At this time, pure tone threshold hearing levels were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 10 10 10 LEFT 20 15 20 10 10 Speech audiometry was not performed as a part of this examination. Audiometric testing performed in February 1971 revealed the following hearing levels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 10 15 20 LEFT 30 15 25 15 15 A Hearing Conservation evaluation was performed in March 1973. All thresholds were below those shown on the February 1971 evaluations. Thereafter, the appellant was evaluated again in January 1974. At this time, both a periodic medical examination and a hearing conservation examination were performed. Audiometric data and history elicited during the hearing conservation examination included the fact that the appellant's hearing was estimated to be good and that the primary source of noise exposure was from jet engines. It was noted that the appellant reported the use of noise muffs as protection from excessive noise. The then current audiometric findings were compared with reference audiometric findings which were recorded on a prior occasion. The difference between pure tone thresholds recorded during the reference and hearing conservation examinations was recorded by noting the degrees of threshold shift. Pure tone threshold hearing levels were as follows: Current Audiometric Data HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 15 20 LEFT 40 30 25 10 10 Reference Audiometric Data RIGHT 15 20 10 5 10 LEFT 25 15 20 10 5 Threshold Shift RIGHT +5 0 +5 +10 +10 LEFT +15 +15 +5 0 +5 It was noted that these findings were not significant. During the January 1974 periodic examination, the clinical evaluation of the ears and ear drums was said to reveal normal findings. Audiometric findings during this examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 25 LEFT 35 20 25 15 15 An August 1976 Hearing Conservation Data Report Reflects that the appellant was examined in relation to his duties as a flight line supervisor. The report reflects that the appellant was assigned to military duty in noise as of July 1953 and that he had experienced no previous significant noise exposure. The appellant was noted to have spent 22 years, 6 months in this capacity. As with the January 1974 Hearing Conservation Data Report, the then current audiometric findings were compared with reference audiometric findings which were recorded on a prior occasion. The difference between pure tone thresholds recorded during the reference and hearing conservation examinations was recorded by noting the degrees of threshold shift. Pure tone threshold hearing levels were as follows: Current Audiometric Findings HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 15 15 25 LEFT 15 25 25 15 15 Reference Audiometric Data RIGHT 15 20 10 5 10 LEFT 25 15 20 10 5 Threshold Shift RIGHT 0 +5 +5 +10 +15 LEFT -10 +10 +5 +5 +10 The report reflects that the findings were not considered significant and that ear plugs and noise muffs had been issued to the appellant. It is indicated on this report that the ear protection used by the appellant was adequate. A July 1977 Hearing Conservation Data Report reflects that the appellant underwent audiometric testing. The appellant's hearing was estimated to be good and he was noted to have used both ear plugs and noise muffs as ear protection. Pure tone hearing thresholds were recorded with respect to comparisons between reference data and then current audiometric findings as follows: Current Audiometric Findings HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 15 10 20 LEFT 25 25 25 20 20 Reference Audiometric Data RIGHT 15 25 15 15 25 LEFT 15 25 25 15 15 Threshold Shift RIGHT +5 0 0 -5 -5 LEFT +10 0 0 +5 +5 The findings were not considered significant. The appellant's November 1978 retirement medical examination contains the appellant's report of his medical history. He specifically indicated that he did not have ear nose or throat trouble and that he did not wear a hearing aid. The appellant's ears and ear drums were clinically evaluated as being normal and the physician's summary contains a list of the defects and significant clinical findings pertinent to the appellant's health on separation. Several conditions are listed along with a statement that the appellant denied all other medical or surgical history. There was not reference to a hearing impairment. On audiometric testing, pure tone hearing thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 15 5 0 10 LEFT 15 10 5 5 5 The appellant underwent a VA examination in May 1979. At this time, the appellant's hearing was tested. Pure tone hearing threshold levels on air conduction were recorded as follows: HERTZ 500 1000 2000 4000 8000 RIGHT 15 30 15 25 15 LEFT 20 20 25 20 25 The speech reception threshold of the right ear was reported as 16 decibels and discrimination ability was 98 percent for both the left and right ear. The examiner remarked that the appellant's November 1978 retirement examination showed normal hearing and that the current VA audiology examination showed normal hearing of both the left and right ears for both speech and pure tone, including high frequency tones. Based on this information, the RO, in its May 1979 decision, concluded that there was no hearing loss shown. Evidence added to the record after the May 1979 decision. The evidence of record indicates that the veteran was employed post-service by the Federal Government as an aircraft mechanic at Patrick Air Force Base from 1980 through at least June 1992 (see history recorded on page 13, June 1992 VA examination). The clinical evidence added to the record since the RO considered this case in May 1979 includes post-separation Hearing Conservation Data records and medical reports dated from apparently 1987 (the date on the report is not legible, but it indicates the veteran's age as 55; he was born in 1932) through 1992. These include a notation of a reference audiogram performed in December 1981 which showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 15 10 15 LEFT 15 25 25 15 15 The additional evidence also includes VA outpatient treatment records dated in September 1989 through September 1991, and VA audiological examinations in May and June 1992. In essence, these reports show that the appellant has developed a bilateral hearing loss, shown by audiometric testing. A report of a VA consultation by a specialist in Ear, Nose and Throat disorders dated in May 1992, indicates that the veteran gave a history of many years of noise exposure in service with bombers and other aircraft. The report records further "[h]is hearing has been slowly decreasing over the years and his audiograms from his active duty time shows (sic) a high frequency hearing loss." The examiner reported an explicit opinion concerning another disability not relevant here, but he offered no explicit opinion concerning the etiology of any current hearing impairment. The appellant underwent a June 1992 VA audiological examination which disclosed pure tone hearing thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 25 30 40 LEFT 25 25 25 25 40 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 94 percent in the right ear and of 100 in the left ear. These findings are indicative of a current bilateral hearing loss. Audiometric testing measures threshold hearing levels in decibels (dB) over a range of frequencies in Hertz (Hz); the threshold for normal hearing is from 0 to 20 dB, a higher threshold indicates some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155 (1993)(citing CURRENT MEDICAL DIAGNOSIS AND TREATMENT 110-11 (Stephen A. Schroeder et al. eds., 1988)). As noted below, the terms hearing loss and hearing disability for VA purposes are not synonymous. III. Analysis Whether new and material evidence has been received. The governing regulation provides that impaired hearing shall be established a disability for purposes of the law administered by VA when the thresholds for the any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1994). Under this standard, the May 1979 rating determination correctly found that the medical evidence from the appellant's military service did not demonstrate that he experienced a hearing disability in service. Clearly, none of the numerous audiometric readings recorded during service show a hearing disability for VA purposes. Likewise, the November 1981 reference audiogram continued to fail to show a hearing disability for VA purposes. Although the appellant has asserted in his January 1992 substantive appeal that "[t]here is an absence of some of my combat records," he has not specified which records are absent and there is nothing in the service medical records to support that bare assertion. Further, the service medical records contain an abundance of the best possible evidence concerning the appellant's hearing status in service, audiometric examinations, including testing at separation by the service department and by the VA immediately after service, not to mention the reference audiogram of 1981. The Board is therefore at a loss to understand where such additional records might be, and thus how a search for them could be conducted, or how they could possibly support the veteran's claim given the overwhelming weight of the mass of the high-quality evidence of record. The Court has held, in Ledford v. Derwinski, 3 Vet.App. 87, 89 (1992), that the requirements of 38 C.F.R. § 3.385 mandate that for purposes of evaluation of claims for service connection, defective hearing which is discovered after service may constitute a disability for which compensation may be granted. Therefore, the fact that the appellant did not have a hearing disability for VA purposes during service is not an automatic bar to a grant of service connection. If it is shown that the appellant's current hearing disability is etiologically related to service, it may be an adequate basis upon which to predicate a finding that new and material evidence has been submitted in this case. In this context, the Court has also held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992) The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet.App. 93 (1993) The veteran has submitted additional evidence into the record since the 1979 determination that confirms that he now has a hearing disability for VA purposes. This additional evidence is clearly new in the sense that it was not previously of record and it is not simply cumulative. The Board finds, however, that this evidence is not material because it is not of sufficient weight to offer a reasonable prospect that it would change the outcome. Specifically, the veteran has not presented competent medical evidence linking his current hearing disability with service. The only additional submission that approximates such evidence is the report of the Ear, Nose and Throat evaluation of May 1992. This report is not shown to have been based on a comprehensive review of the record. It conspicuously omits any reference to the important fact that the veteran continued work as an aircraft mechanic as a Federal Government employee for at least twelve years after service. In the one passage quoted in full above ("[h]is hearing has been slowly decreasing over the years and his audiograms from his active duty time shows (sic) a high frequency hearing loss."), the report is ambiguous as to whether it is the examiner's opinion that the veteran now has a hearing disability related to service or that the examiner was just recording the veteran's lay opinion that he had a high frequency hearing loss in service. Given the subsequent explicit opinion by the examiner concerning another disability, the Board interprets this passage as representing a statement of history from the appellant. The veteran's lay opinion, however sincerely held, that he now has a hearing disability related to his period of active service, is not competent evidence to establish medical causation, and therefore is not probative of this determinative issue. No such competent evidence is or record. Moray v. Brown, 5 Vet.App. 211, 214 (1993) (lay assertions of medical causation will not establish a plausible, well-grounded claim and cannot suffice to reopen a claim under 38 U.S.C.A. § 5108.) Accordingly, the Board finds that the veteran has not met his burden of submitting evidence which is both new and material to reopen his claim, and thus the 1979 determination remains final. Entitlement to Service Connection for Tinnitus As indicated above, the appellant contends that he has tinnitus as a result of his military service , and that service connection should be awarded. The appellant's service medical records, as well as the VA examination performed immediately after service not show any complaints, statements of medical history or findings that would indicate the presence of tinnitus. The Board has carefully considered the appellant's assertions with respect to this issue, but his current assertions are not persuasive in the face of the massive amount of negative clinical evidence spanning the complete period of service and a period thereafter. For example, the appellant's November 1978 retirement examination specifically ruled out any perforation of the eardrums or hearing loss. The Board has no indication based on a review of this report that would cast doubt on the veracity or accuracy of these findings. It appears that the appellant received a thorough examination at the time and certainly had the opportunity on the report of medical history to report any ringing in the ears or hearing loss. On the other hand, the record does contain a statement of medical history recorded at the June 1992 VA examination showing the veteran set the onset of his tinnitus as 1987. As noted above, the record does not disclose the etiology of the appellant's bilateral hearing loss as stemming from a disease or injury incurred during service. Likewise, the record is silent with respect to competent medical evidence indicating a relationship between tinnitus and the appellant's military service. Moray, 5 Vet.App. at 214. The Board must accordingly conclude that the overwhelming weight of the evidence is against the appellant's claim for service connection for tinnitus. The Board finds that there is not an approximate balance of positive and negative evidence regarding the merits of the issue in this matter, and it is concluded that the benefit of the doubt in resolving this issue is not for application. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991); 38 C.F.R. §§ 3.303 (b), 3.303 (d) (1994). ORDER New and material evidence not having been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss, the claim is denied. The claim for service connection for tinnitus is denied. RICHARD B. FRANK 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.