BVA9508308 DOCKET NO. 93-14 190 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease, currently evaluated as 60 percent disabling. 2. Whether a rating decision of January 18, 1991, was clearly and unmistakably erroneous in denying a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran served on active military duty from April 1943 to March 1946. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri (hereinafter RO). The veteran has raised the issues of entitlement to a total rating for compensation purposes based upon individual unemployability and service connection for a heart disorder, secondary to the veteran's service-connected lung disorder, based on new and material evidence. These issues have not been developed for appellate review and are not inextricably intertwined with the issues pending before the Board. See Parker v. Brown, 7 Vet.App. 116 (1994); Vettese v. Brown, 7 Vet.App. 31 (1994); Holland v. Brown, 6 Vet.App. 443 (1993). Accordingly, they are referred to the RO for appropriate consideration. It is further noted that the stay on the adjudication of pending claims regarding benefits under 38 U.S.C.A. § 1151 (West 1991) has been lifted, and the veteran's claim for these benefits should be adjudicated by the RO. Brown v. Gardner, 115 S. Ct. 552 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that manifestations of his service-connected lung disorder have increased in severity, and therefore warrants a total schedular evaluation. He also maintains that clear and unmistakable error was committed by the RO in its January 1991 rating decision denying a total rating for compensation purposes based upon individual unemployability as the RO incorrectly applied the pertinent laws and regulations, specifically failing to consider all the matters of evidence, such as the veteran's educational background. 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 preponderance of the evidence is against the veteran's claim of entitlement to an increased rating for pulmonary tuberculosis, far advanced, arrested with chronic obstructive pulmonary disease. It is the further decision of the Board that the January 1991 rating decision by the RO was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. More than severe disability associated with the veteran's pulmonary tuberculosis, far advanced, arrested with chronic obstructive pulmonary disease has not been shown. 3. At the time of the January 1991 rating decision, service connection was in effect for pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease, evaluated as 60 percent disabling, and residuals of high explosive wounds to the lower third of the veteran's left thigh, evaluated as 10 percent disabling. 4. The January 1991 rating decision found that the veteran's service-connected pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease did not cause the veteran to become unemployable. 5. This determination was consistent with the evidence of record. The failure of the RO to properly apply the pertinent laws and regulations, specifically failing to consider all matters of evidence, is not material as it would not have manifestly changed the outcome of that determination. CONCLUSIONS OF LAW 1. A rating in excess of 60 percent for pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Parts 3 and 4, § 4.97, Diagnostic Codes 6721-6603 (1994). 2. Clear and unmistakable error was not present in the RO decision of January 1991 which denied a total rating for compensation purposes based upon individual unemployability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.105(a), 3.340(a), 3.341, 4.15, 4.16, 4.18 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claim is well-grounded within the meaning of the statute and judicial construction. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); 38 U.S.C.A. § 5107(a). The Department of Veterans Affairs (hereinafter VA) therefore has a duty to assist the veteran in the development of facts pertinent to his claim. In this regard, the veteran's service medical records, post-service private clinical data, and VA outpatient, hospitalization, and examination reports have been included in his file. Upon review of the entire record, the Board concludes that the data currently of record provide a sufficient basis upon which to address the merits of the veteran's claim and that he has been adequately assisted in the development of his case. I. Pulmonary Tuberculosis With respect to the veteran's claim, disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's SCHEDULE FOR RATING DISABILITIES (hereinafter SCHEDULE), codified in C.F.R. Part 4 (1994), which includes diagnostic codes which represent particular disabilities. The pertinent diagnostic codes and provisions will be discussed below as appropriate. A spot on the veteran's lung was first shown in May 1946. X-rays were taken and the veteran was told that there was no need for hospitalization. Thereafter, the veteran noticed fatigability and malaise. He developed a nonproductive cough, which subsequently became productive. In 1947, the veteran developed a mild pain in his anterior back; his appetite diminished and his weight went from 197 pounds to 169 pounds. He was hospitalized in 1948 for active, far advanced, chronic pulmonary tuberculosis, reinfection type. Service connection for chronic pulmonary tuberculosis, far advanced, arrested with left pneumothorax was granted by rating decision in August 1950 and assigned a 100 percent disability rating. A graduated rating in July 1951 was instituted following arrest and the end of the three year period of collapse by pneumothorax. A 100 percent evaluation was assigned from June 1950 to June 1953, 50 percent from June 1953 to June 1957, and a 30 percent rating was assigned from June 1957. A VA chest examination conducted in September 1968 reported limited expansion on the left and a droop of the left shoulder. Tactile fremitus was reduced over the entire left chest. Breath sounds were decreased over the entire left side of the chest. The diagnoses included inactive moderately advanced pulmonary tuberculosis, (214 months), left pneumothorax, re-expanded. The veteran was admitted to a VA facility for common cold and influenza in January 1972. Examination noted the chest was clear with the exception of a few rhonchi on the right and diminished breath sounds on the left apices. The veteran was hospitalized in September 1985, with complaints of paroxysmal nocturnal dyspnea. The veteran stated that he noted the onset of a dull ache in the left anterior chest with shortness of breath and flush sensation. The respiratory examination showed a shallow respiration. Examination of the chest and lungs revealed normal breath sounds with diffuse expiratory and inspiratory rhonchi, left greater than right, and occasional expiratory wheezes. The examiner noted that the symptoms the veteran was experiencing were due to chronic obstructive pulmonary disorder, pulmonary changes due to tuberculosis. The pulmonary evaluation showed no evidence of active tuberculosis, but the pulmonary function tests showed moderate chronic obstructive pulmonary disorder. Based on this evidence, the RO granted service connection for chronic obstructive pulmonary disease, secondary to the veteran's service-connected tuberculosis. An x-ray in September 1985, found no definite active infiltrate; however, the left pleural and parenchymal showed scarring with evidence of pleural calcification. The veteran was hospitalized in March 1986 for an unrelated disorder. On examination, the lungs were clear, although the left side revealed decreased breath sounds. In October 1986, the veteran was hospitalized at a VA facility with complaints of light headedness and blurred vision. The veteran stated he had lost fifteen pounds the previous three weeks, and experienced generalized weakness, mild dyspnea, and night sweats. On examination the lungs showed decreased breath sounds throughout, with mild end expiratory wheezing. A chest x-ray showed marked emphysema. A computerized tomography scan of the chest showed severe emphysematous changes, bullae formation, and left sided pleural calcification. It was felt that the veteran did not have active tuberculosis. The diagnoses included a previous history of tuberculosis infection, resolved. X-rays taken in August 1989, documented infiltrates in the left upper lobe, suggestive of scarring. Calcific densities were noted, which further suggested calcification of pleural plaques. Pleural thickening or pleural effusions were also indicated. Bullous formation were seen, noting emphysematous changes. Some volume loss of the left was indicated by a shift of the mediastinal structures to the left. A pulmonary function test conducted in June 1990 showed the ratio of forced expiratory volume to forced ventral capacity as 53 percent, which indicative of moderate obstructive lung disease. Chronic obstructive pulmonary disorder was confirmed by an increase in respiratory volume. On the basis of this evidence, the RO increased the veteran's rating for the veteran's service-connected lung disorder to 60 percent by a rating decision in August 1990. This rating contemplates chronic pulmonary tuberculosis, moderately advanced, inactive, and severe pulmonary emphysema. 38 C.F.R. § 4.97, Diagnostic Code 6721-6603. Manifestations of severe pulmonary emphysema include exertional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping; ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. Id. The veteran was hospitalized in November 1990 for an unrelated disorder. On examination, it was noted that the veteran's exercise tolerance was two blocks, and became short of breath on minimal exertion. It was noted the veteran had chronic cavitary lung disease and chronic obstructive pulmonary disorder. In March 1992, it was noted that the veteran had a history of chronic obstructive pulmonary disorder. Scattered wheezes were reported and the veteran was placed on inhalers. No further complaint of shortness of breath or wheezing was noted while hospitalized for a heart disorder. The discharge diagnoses included chronic obstructive pulmonary disorder. A VA examination conducted in November 1992 found tachypnea and hyperpnea, with expiratory wheezes bilaterally and coarse breath sounds. The diagnoses included inactive pulmonary tuberculosis and chronic obstructive pulmonary disorder, secondary to the pulmonary tuberculosis. X-rays of the chest revealed pleural thickening and calcification, scarring, and blunting of the left costophrenic margin, with two densities present in the right apex. The radiologist noted that these findings showed no significant change since August 1989. A pulmonary function test indicated significant pulmonary difficulty. An evaluation of 100 percent disability for the veteran's pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease requires a showing of pronounced impairment to the degree of being intractable and totally incapacitating. Manifestations would include dyspnea at rest, or marked dyspnea and cyanosis on mild exertion. The severity of emphysema must be confirmed by chest x-rays and pulmonary function tests. 38 C.F.R. § 4.97, Diagnostic Code 6721-6603. In accordance with the aforementioned provisions, there is no indication that the veteran's service-connected pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease has advanced to the degree productive of being intractable and resulting in the total incapacitation of the veteran. Although the evidence shows that the veteran experiences tachypnea and hyperpnea, the most recent evidence reveals that the veteran's exercise tolerance was two blocks, and that he became short of breath on minimal exertion. While the pulmonary function test conducted in 1992 indicated an increase in disability over the findings of the 1990 pulmonary function test, this increase is not of shown to be of such severity as to produce the manifestations of the disorder such as dyspnea at rest or marked dyspnea and cyanosis on mild exertion, required for an increased rating. Overall, although the veteran is functionally limited to a severe degree, the clinical picture presented is not of the severity indicated by a rating consistent with pronounced impairment. Id. In so finding, consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence discussed above does not suggest that the service-connected chronic pulmonary tuberculosis, moderately advanced, inactive, and severe pulmonary emphysema, presents such an exception or unusual disability picture as to render impractical the application of the regular schedular standards, so as to warrant the assignment of a extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, the veteran's service-connected pulmonary tuberculosis, far advanced, arrested with chronic obstructive pulmonary disease has not required frequent periods of hospitalization, and has not shown, in and of itself, to present marked interference with employment. The veteran's representative claims that the veteran is entitled to the benefit of the doubt in this matter; however, the Board does not agree that the doubt raised here is reasonable. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation; consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 U.S.C.A. § 5107(b). A reasonable doubt is "one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim." 38 C.F.R. §§ 3.303(a), 3.102. This latter regulation goes on to state that such a doubt must be a "substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102. In this case, the clinical findings as discussed above clearly fail to show that the veteran's service-connected lung disorder results in total incapacitation. Accordingly, an increased rating for chronic pulmonary tuberculosis, moderately advanced, inactive, and severe pulmonary emphysema is not warranted. II. Clear and Unmistakable Error The veteran has raised the issue of whether a rating decision of January 18, 1991, was clearly and unmistakably erroneous in denying a total rating for compensation purposes based on individual unemployability. The veteran contends that the RO failed to apply the laws and regulations governing a claim of a total rating for compensation purposes based upon individual unemployability correctly, and failed to consider all matters of evidence, to include the veteran's educational background. For the reasons discussed below, the Board finds that the aforementioned rating decision was not clearly and unmistakably erroneous. The veteran's service-connected disorders at the time of the January 1991 rating decision were pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disorder, evaluated as 60 percent disabling, and residuals of high explosive wounds to the lower third of the veteran's left thigh, evaluated as 10 percent disabling. The veteran was in receipt of a 60 percent combined disability rating. 38 C.F.R. § 4.25 (1990). The evidence of record notes that the veteran attended four years of high school and had work experience as a machinist, courier, and most recently as a truck driver. He last worked in 1988. History of the veteran's service-connected lung disorder was discussed above. At the time of the January 1991 rating decision, the most recent evidence showed August 1989 radiographic findings of infiltrates in the left upper lobe, suggestive of scarring. Calcific densities were noted, which further suggested calcification of pleural plaques. Pleural thickening or pleural effusions were also indicated. Bullous formation were seen, noting emphysematous changes. Some volume loss of the left was indicated by a shift of the mediastinal structures to the left. A pulmonary function test conducted in June 1990 showed the ratio of forced expiratory volume to forced ventral capacity as 53 percent, which was reported as indicative of moderate obstructive lung disease. Chronic obstructive pulmonary disorder was confirmed by an increase in respiratory volume. On the basis of this evidence, the RO increased the veteran's rating for the veteran's service-connected lung disorder to 60 percent by a rating decision in August 1990, effective from May 1989. This rating contemplates chronic pulmonary tuberculosis, moderately advanced, inactive, and severe pulmonary emphysema. 38 C.F.R. § 4.97, Diagnostic Code 6721- 6603. Manifestations of severe pulmonary emphysema include exertional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping; ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. Id. At the time of the January 1991 rating decision, the veteran was also service-connected for high explosive wound residuals of the lower one-third of the left thigh, rated as 10 percent disabling. Service medical records note that the veteran was wounded in action, receiving a shrapnel wound in his left thigh. The wound was noted as penetrating, and a foreign body was removed. Post-operatively, no circulatory or nerve changes were found. Based on this information, the RO granted a 10 percent disability rating for adherent scars to the left thigh by rating action in June 1946. VA examinations in April 1948, noted these scars to be superficial and asymptomatic. In June 1948, the rating for the veteran's service-connected left thigh injury was changed to show damage to the veteran's left thigh muscle. Since that time, there have been no complaints or abnormal findings with regard to the veteran's service-connected left thigh. Where the veteran has a combined service-connected disability rating of at least 70 percent, with at least one service- connected disability rated at least 40 percent or more, a "[t]otal disability rating[] may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to follow a substantially gainful occupation." 38 C.F.R. § 4.16(a) (1990); see 38 C.F.R. §§ 3.340(a), 3.341(a), 4.15, 4.18 (1990). As noted above, the veteran was in receipt of a 60 percent combined disability rating in January 1991. 38 C.F.R. § 4.25 (1990). Although the veteran failed to meet the required disability percentage ratings enunciated in 38 C.F.R. § 4.16(a) (1990), pursuant to 38 C.F.R. § 4.16(b) (1990), a total and permanent disability rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(2), shall be considered "[t]o accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate . . . ." Moyer v. Derwinski, 2 Vet.App. 289, 293 (1992). 38 C.F.R. § 4.16(b) dictates that all veterans who are unemployable by reason of service connected disorders, but fail to meet the schedular criteria should have their cases submitted to the Director of Compensation and Pension Service for extra- schedular consideration and for application of 38 C.F.R. § 3.321(b)(1). As the RO found the veteran to be employable, consideration by the Director of Compensation and Pension Service was not mandated. The United States Court of Veterans Appeals (hereinafter Court) has held that for there to be a valid claim of clear and unmistakable error, there must have been an error in the prior adjudication of the claim. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were improperly applied. Id. A claimant must assert more than a disagreement as to how the facts were weighed andf evaluated. Id. Moreover, the Court has stated that clear and unmistakable error is "undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made." Id. at 313-314. However, to establish clear and unmistakable error, it must be further demonstrated that the claimed error, when called to the attention of later reviewers compels a different conclusion to which reasonable minds could not differ. See Fugo v. Brown, 6 Vet.App. 40 (1993), en banc review denied, 6 Vet.App. 162 (1994). The Court stated [i]t must always be remembered that CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, 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...[S]imply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. at 43-44. At the veteran's personal hearing before the RO in February 1992, the veteran's representative stated that the RO failed to properly consider all matters of evidence, to include the veteran's educational background. In a statement dated in February 1994, the veteran's representative provided additional argument noting that the RO misapplied the pertinent laws and regulations by stating that: A finding of entitlement to individual unemployability requires that the veteran become unemployable because of his service connected disability, and the evidence is required to show that the service connected condition precludes [sic] employment continuously since incurrence of the date of the veteran's terminated employment. The veteran's representative takes issue with this statement noting that the veteran must only show that he cannot sustain or retain gainful employment as a result of his service-connected disabilities only. The veteran's representative correctly notes that the veteran does not have to show that he was precluded from employment continuously since the veteran's terminated employment. The representative also noted that the aforementioned statement was incorrect as the RO stated that the veteran's service-connected disability did not show him to become unemployable. The veteran's representative therefore noted that it appeared the RO only considered one service-connected disability. The Board also notes that the RO failed to apply the proper Diagnostic Code to the veteran's service-connected lung disorder when determining his claim of entitlement to unemployability. In the instant case, it is apparent that the RO misapplied the statutory and regulatory provisions as they pertain to a total rating for compensation purposes based upon individual unemployability. In January 1991, service connection was in effect for pulmonary tuberculosis, far advanced, arrested, with chronic obstructive pulmonary disease, evaluated as 60 percent disabling, and residuals of high explosive wounds to the lower third of the veteran's left thigh, evaluated as 10 percent disabling. The veteran was in receipt of a 60 percent combined disability rating. According to 38 C.F.R. § 4.16(b) (1990), "[t]he rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having bearing on the issue." According to the evidence of record, the veteran's educational background was not discussed in the rating decision of January 1991 which denied the veteran's claim of entitlement to a total rating for compensation purposes based upon individual unemployability. Moreover, the January 1991 rating action fails to discuss the veteran's service-connected left thigh disability, and its impact on the veteran's employability. Although the RO did not properly weight and evaluate the facts of record, or correctly apply the legal provisions, the evidence of record at the time of the above rating decision was not such as to compel a different conclusion to which reasonable minds could not differ. Fugo, 6 Vet.App. at 43. A clear and unmistakable error claim entails a finding that the outcome would be manifestly different, but for the error. Id. at 44. Upon review of the evidence, the Board finds that the denial of entitlement to a total rating for compensation purposes based upon individual unemployability in January 1991 was not clearly and unmistakably erroneous. A total rating for compensation purposes based upon individual unemployability will be assigned "when there is present any impairment in mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a) (1990). However, in determining whether a particular veteran is unemployable, the Board must also give "full consideration . . . to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability." 38 C.F.R. § 4.15 (1990). Furthermore, the Board must consider the effects of the veteran's service-connected disability or disabilities in context of his employment and educational background. See Fluharty v. Derwinski, 2 Vet.App. 409, 412-13 (1992). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to the veteran's age or impairment caused by nonservice-connected disabilities. In this case, the veteran was a truck driver until 1988. The record notes that the veteran has a high school education. It is noted that the veteran has numerous and severe nonservice-connected disorders, to include a heart disorder, residuals of a right radius and humerus fracture, and bilateral hearing loss. However, these disorders may not be considered when determining the veteran's employability. The evidence discussed above reveals that the veteran's service- connected lung disorder was severe in degree, but did not produce the degree of impairment to render the veteran unemployable. Indeed, this disorder was not shown to cause marked interference with the veteran's previous employment. The Board has considered the findings noting that the veteran experienced exertional dyspnea to a degree restricting his activities, but it is not shown that the veteran was unable to retain or obtain substantial employment due to this disorder, in conjunction with his service-connected left thigh disorder. The veteran's service-connected left thigh was asymptomatic with no complaints, findings, or treatment for over forty years. The veteran's disabilities may preclude manual labor, but the veteran was capable of performing jobs consistent with his occupational and educational history. The medical and other documentary evidence shows that the veteran engaged in occupations that did not involve physical exertion, such as a machinist, courier and truck driver. The evidence does not demonstrate that his service-connected disabilities were of such severity as to preclude these types of employment. Indeed, the evidence indicates that the veteran discontinued his job as a truck driver due to a nonservice-connected disorder. As noted above, a clear and unmistakable error claim entails a finding that the outcome would be manifestly different, but for the error. Fugo, 6 Vet.App. at 44. In view of the above findings, the Board finds that the January 1991 rating decision was not fatally flawed at the time it was made, or when viewed in light of the entire record on appeal, would compel a different conclusion in this case. Accordingly, the Board concludes that the January 1991 rating decision was supported by the evidence then of record. ORDER An increased rating for chronic pulmonary tuberculosis, moderately advanced, inactive, and severe pulmonary emphysema is denied. Clear and unmistakable error was not present in the rating decision of January 1991 that denied a total rating for compensation purposes based upon individual unemployability. 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.