BVA9504177 DOCKET NO. 89-15 519 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, other than chronic strain. 2. Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder. 3. Entitlement to an increased evaluation for a left total knee replacement, currently evaluated as 30 percent disabling. 4. Entitlement to a compensable evaluation for a chronic strain of the right knee. 5. Whether the rating action of July 1987 granting benefits pursuant to 38 C.F.R. § 4.30 was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD J. A. McDonald, Associate Counsel INTRODUCTION The veteran had active military duty from September 1969 to October 1972. This case was most recently before the Board in February 1994, at which time it was remanded to the Department of Veterans Affairs Regional Office in Houston, Texas (hereinafter RO) for further development of the case. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for his right knee disability, as he injured his knee while in service. He further maintains that service connection is warranted for a psychiatric disorder, as his right and left knee disorders have caused physical impairment, resulting in depression. 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 files. 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 been submitted to reopen the veteran's claims of entitlement to service connection for a psychiatric disorder, secondary to his right and left knee disabilities, as well as his claim of entitlement to service connection for a right knee disorder, other than chronic strain. Furthermore, the evidence supports the veteran's claims of entitlement to service connection for a psychiatric disorder, secondary to his bilateral knee disability, as well as his claim of entitlement to service connection for a right knee disorder, other than chronic strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A right knee disorder, other than chronic strain, was denied by a decision of the Board in June 1990. 3. Additional evidence submitted since the June 1990 Board decision includes private hospital reports, private physician reports, VA hospital reports, VA outpatient treatment records, and VA examinations. An opinion of the VA physician as to the etiology of the veteran's right knee disorder is considered new and material and therefore, the veteran's claim of entitlement to service connection for a right knee disorder, other than chronic strain, is reopened. 4. The veteran sustained a right knee injury while in service which resulted in a right knee disability, in addition to chronic strain. 5. A psychiatric disorder was denied by a decision of the Board in June 1990. 6. Additional evidence submitted since the June 1990 Board decision includes private hospital reports, private physician reports, VA hospital reports, VA outpatient treatment records, and VA examinations. The opinions of private and VA physicians as to the etiology of the veteran's psychiatric disorder are considered new and material and therefore, the veteran's claim of entitlement to service connection for a psychiatric disorder, secondary to his service-connected right and left knee disorders is reopened. 7. The veteran's current psychiatric disorder is shown to be related to his service-connected left and right knee disorders. CONCLUSIONS OF LAW 1. The evidence submitted to reopen the veteran's claim of entitlement to service connection for a right knee disorder, other than chronic strain, is new and material and the veteran's claim of entitlement to service connection is reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1993). 2. A right knee disorder, in addition to chronic strain, was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). 3. The evidence submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder, secondary to his service-connected right and left knee disorders, is new and material and the veteran's claim of entitlement to service connection is reopened. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1993). 4. A psychiatric disorder is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1993). 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 hospital and 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. The Board denied entitlement to service connection for a right knee disorder, other than chronic strain, and a psychiatric disorder in June 1990. Under applicable law and regulations, that decision is final, and the veteran's claims may not be reopened and reviewed unless new and material evidence is submitted by the veteran. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.104(a). "New" evidence is that which is neither cumulative or redundant. Colvin v. Derwinski, 1 Vet.App. 171 (1991). To be "material", the evidence must be relevant and probative as to the issue presented. Id. at 174. Moreover, the additional evidence submitted must provide a reasonable possibility that all the evidence, both old and new, when taken together would change the outcome of the case. Id. I. Right Knee Disorder The evidence submitted since the Board rendered its 1990 determination includes private hospital reports, private physician reports, VA hospital reports, VA outpatient treatment records, and VA examinations. Most importantly, it includes an opinion by a VA examiner in April 1994 regarding the etiology of the veteran's current right knee disorder. As this evidence is neither duplicative or cumulative, and is both probative and relevant to the issue at hand, the Board finds it "new and material," and therefore, the veteran's claim of entitlement to service connection for a right knee disorder, other than chronic strain, is reopened. In Bernard v. Brown, the Court held that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard, 4 Vet.App. 384, 394 (1993). In the instant case, the RO decisions leading to this appeal did not adjudicate the issue as to whether new and material evidence had been presented, although the laws and regulations were provided to the veteran, but addressed the issue on its merits. As such, the Board finds that the veteran would not be prejudiced under Bernard by proceeding on the merits. The veteran has consistently made merit-based arguments throughout the course of the RO adjudication process and his appeal, namely that his right knee disorder was incurred in service or is secondary to his left knee disorder. Additionally, the veteran has been provided with notice of the need to submit evidence in support of his service connection claim, has been assisted in attempting to obtain the evidence, and has indicated that no further relevant evidence can be obtained or exists. In light of these findings, the veteran would not be prejudiced by the Board addressing the merits of his claim. The veteran's service medical records are negative for any treatment or complaints of a right knee disorder. The first indication of a right knee disorder was in 1979 when the veteran complained of right knee pain on walking. VA outpatient treatment records in May 1980 showed mild medial collateral ligament laxity in the right knee. In October 1980, a VA physician stated that the veteran injured both knees while in service. It was reported that the veteran had symptoms in his right knee since service discharge, although they were less severe than those in his left knee. The examiner stated that on examination in October 1980 mild recurvatum and mild medial collateral laxity of the right knee was found. X- rays disclosed mild traumatic arthritis of the right knee. The examiner opined that the veteran had disability in his right knee due to ligamentous and cartilaginous injuries he sustained in 1971 while in service. The veteran was afforded a VA examination in January 1981. Examination of the right knee revealed a genu recurvatum deformity. There was no swelling, redness, or tenderness about the right knee joint. All ligaments were intact with good stability. Full range of motion was demonstrated, with no crepitance on motion. X-ray of the right knee revealed no abnormalities. The diagnoses included genu recurvatum with chronic strain, symptomatic, chronic, mild of the right knee. The examiner noted that the chronic strain of the right knee was related to the veteran's service-connected left knee disorder. A VA hospital report in January 1982 noted that the veteran had injured both knees while in service, resulting in mild symptoms to his right knee thereafter. A VA hospital report in January 1983 noted that the veteran had a history of right knee pain, locking, and giving way since a football injury while in service in 1977 (sic). X-rays showed the right knee was within normal limits with regard to the bony structure and architecture. A diagnostic right knee arthroscopy was performed which found normal medial and lateral menisci, normal anterior cruciate, with no patello-femoral arthritis or plica noted. VA outpatient treatment records dated June 1983 note that the veteran complained of right knee pain beginning in 1980 with some popping, snapping, and giving way. The diagnosis was intermittent right knee pain. A private hospitalization report dated June 1984 indicates that the veteran underwent an internal derangement of the right knee. The final diagnoses were anterolateral rotatory instability, insufficient anterior cruciate with partial tear, and intact mediolateral menisci. The examiner, T. M. Smith, M.D., noted that a "giving away episode probably aggravated his anterior lateral instability . . . his real pathology is pre-existing with service connected knee injury." In September 1986, the veteran underwent surgery on his right knee which consisted of arthroscopy of the right knee, a partial medial meniscectomy, and an arthroscopic assisted reconstruction of the anterior cruciate. The postoperative diagnoses were a torn medial meniscus and chronic anterolateral rotatory instability of the right knee. In a statement to the VA in October 1986, Dr. Smith stated . . . [the veteran] had an injury to his right knee playing football while in the Marine Corp (sic). I got this history from [the veteran] and from the Veterans Administration records. He had arthroscopic surgery performed on his right knee in 1983 and apparently, no torn anterior cruciate was found at that time. This was performed by the doctors at the Veterans Administration Hospital in Houston, Texas. The patient was seen in my office in May 1984, after a work related injury at Lamar University. He was helping to load some heavy carpet and his right knee gave away. Apparently, his anterior cruciate popped at that time and the possible connection to the previous injury is that the anterior cruciate, although intact at the arthroscopic surgery of January 1983, may have been weakened. The veteran underwent another surgery on his right knee in January 1987, which consisted of an elliptical excision of fistula, removal of hardware and foreign material of right tibia along with culture and sensitivity of the area. The postoperative diagnosis was sterile abscess, right tibia. Dr. Smith noted on examination in April 1987, the veteran had limited range of motion of his right knee. A VA examination was conducted in July 1987, which revealed well- healed incisional scars over the lateral and medial aspects of the right knee. The veteran complained of some tenderness to pressure about the scars. The examination of the ligaments revealed a laxity of the anterior cruciate ligament and laxity of the lateral collateral ligament, which produced anterolateral rotary instability. Motion was limited, with pain on extremes of motion. Popping and crepitus was noted beneath the patella and in the knee on motion of the joint. The diagnoses included residuals of multiple surgeries, chondromalacia of the patella, post-traumatic arthritis, internal derangement with anterolateral rotary instability secondary to laxity of the anterior cruciate ligament and laxity of the lateral collateral ligament with limitation of motion, symptomatic, chronic. A VA examination conducted in July 1988, found anterior cruciate deficient of the right knee, with moderate instability. A VA examination was conducted in January 1991, which revealed multiple healed surgical incisions on the right knee. Limitation of motion was noted, with no crepitus, although there was positive medial and lateral joint length tenderness. Decreased sensation around the lateral surgical incision was noted. X-rays of the right knee showed a retaining screw in the femur and minimal degenerative changes. The diagnoses included status post multiple surgeries on the right knee, with continued instability, moderately severe. A statement dated February 1993, from a private physician, H.A. Reid, M.D., reported that the veteran injured his right knee in 1984 after his knee gave way, injuring his anterior cruciate ligament. Dr. Reid stated that after reviewing the records from the Veterans Administration he had no doubt that the right knee disorder is directly related to the left knee service related injury. The most recent VA examination was conducted in April 1994. At this time, the right knee was noted to have a limited range of motion on flexion and full range of motion on extension. 38 C.F.R. § 4.71 (1993). Scars were noted on the right knee. Five to ten millimeters of laxity was noted. X-rays revealed no erosion and no irritation. No osteoarthritis was noticeable. The examiner opined that the right knee was not due to the veteran's service-connected left knee disorder, but was incurred at the same time as the left knee, in 1971. The examiner stated that the right knee injury was not as severe as the left knee injury and took longer to surface. The examiner went on to state that the right knee should be service-connected. Although the issue of service connection of a disorder is a legal question, and not within the purview of the VA physician noted above, the Board has carefully considered his examination report and opinion regarding the etiology of the veteran's current right knee disorder. The Board has also considered the complete evidence of record with regard to the veteran's right knee, and the previous opinions of both private and VA physicians. These opinions are medical conclusions which the Board is not free to ignore or disregard. See Willis v. Derwinski, 1 Vet.App. 66, 70 (1991). However, the Board is not required to accept the medical authority supporting a claim if it provides reasons for rejecting such evidence and, more importantly, provides a medical basis other than its own unsubstantiated conclusions to support its ultimate decision. Simon v. Derwinski, 2 Vet.App. 621, 622 (1992). In the instant case, the Board remanded the case to the RO in October 1994 to determine the nature and extent of the veteran's knee disorders. The examiner was requested to express an opinion as to the relationship between the veteran's knee disorders as well as the relationship between the veteran's service-connected chronic strain of the right knee and any other right knee disorder. As noted above, the VA examiner stated that the veteran's current right knee disorder was not related to his left disorder, but was incurred at the same time as the left knee disorder, that is, while the veteran was in service. The Board accepts this opinion, as well as the other opinions of the medical professionals in the evidence since 1980 as to the etiology of the veteran's right knee disorder. Although it is noted that this opinion is based in part on the history given by the veteran, it is also noted that the veteran's records were reviewed prior to making the determination as to when the veteran's right knee disorder was incurred. See Swann v. Brown, 5 Vet.App. 229 (1993). The Board recognizes that the veteran incurred an injury to his right knee in 1984. It is also acknowledged that although the arthroscopic surgery performed on the veteran's right knee in 1983 found the anterior cruciate intact, Dr. Smith has stated that the injury to the anterior cruciate in 1984 was possibly due to the weakened state of the anterior cruciate prior to the injury. It is also noted that VA outpatient treatment records document right knee complaints as early as 1979, giving credence to Dr. Smith's conclusion of a correlation between the injury in 1984 and the veteran's right knee disorder prior to that time. After review of the entire evidence of record, the Board concludes that service connection for a right knee disorder, in addition to chronic strain, is warranted. I. Psychiatric Disorder The evidence submitted since the Board rendered its 1990 determination includes private hospital reports, private physician reports, VA hospital reports, VA outpatient treatment records, and VA examinations. Most importantly, it includes opinions by a VA examiner and private physicians regarding the etiology of the veteran's current psychiatric disorder. As this evidence is neither duplicative or cumulative, and is both probative and relevant to the issue at hand, the Board finds it "new and material," and in light of the finding discussed above of service connection for a right knee disorder, in addition to chronic strain, the veteran's claim of entitlement to service connection for a psychiatric disorder, secondary to his knee disorders, is reopened. As noted above, the Court held that when the Board addresses in its decision a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard, 4 Vet.App. 384, 394 (1993). In the instant case, the RO decisions leading to this appeal determined that new and material evidence had not been presented, and thus, the RO has not addressed the merits of the veteran's claim. As such, the Board must determine if the veteran would be prejudiced by proceeding with adjudicating the claim on the merits. For the following reasons, the Board finds that the veteran would not be prejudiced under Bernard by proceeding on the merits. The veteran has consistently made merit-based arguments throughout the course of the RO adjudication process and his appeal, namely that his psychiatric disorder is due to his right and left knee disabilities. Additionally, the veteran has been provided with notice of the need to submit evidence in support of his service connection claim, has been assisted in attempting to obtain the evidence, and has indicated that no further relevant evidence can be obtained or exists. In light of these findings, and the decision of the Board, the veteran would not be prejudiced by the Board addressing the merits of his claim. The veteran contends that service connection for a psychiatric disorder is warranted as this disorder developed due to his left and right knee disabilities and the pain resulting therefrom. Pertinent regulations provide for a grant of secondary service connection where a disability is determined to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. It is not adequate to merely show the existence of two concurrent disabilities, one service-connected and one nonservice-connected, but there must be an adequate basis to determine a direct cause-and-effect relationship between the two disabilities. See Sammarco v. Derwinski, 1 Vet.App. 111 (1991). A report from a private facility in July 1985 noted that the veteran had been hospitalized in 1976 and received electroconvulsive therapy. The diagnostic impression at that time was paranoid schizophrenic reaction. The report in 1985 stated that the veteran was hospitalized due to job related stress, crying episodes, and trouble concentrating. It was noted that his wife had recently miscarried their first child, which exacerbated his symptoms. The final diagnosis was bipolar, mixed. The veteran was readmitted a month after discharge upon discontinuation of medications. On admission, he was tense, depressed, tearful and anxious. The diagnosis was bipolar affective disorder, depressed. VA outpatient treatment records dated October 1985 noted the veteran was hospitalized after becoming hysterical, out of control, and expressing homicidal and suicidal ideation. The veteran complained that his knees "give out, but they say they can't fix them, but I can't work. . . . I can't take it any more. Started hearing voices telling me to give up." It was noted that the veteran was severely depressed with sleep disturbances, and experienced night awakenings with nightmares, which were associated with his knees. The diagnosis was major depression, with psychotic features and suicidal thoughts. VA outpatient treatment records in November 1985 report that the veteran had been seen three times in the emergency room for panic attacks since his discharge in October 1985. It was noted that the veteran's primary focus was on his knees. The diagnosis was major depression, without the psychotic features. VA outpatient treatment records in April 1987 assessed depression with anxiety. A private physician, J.M. Finley, M.D., noted in May 1987, a diagnosis of chronic depression and anxiety, which became worse after the veteran's last knee surgery. A report dated May 1988 from L.M. Williams, M.D., stated that the veteran was hospitalized in March 1988 due to being intensely preoccupied and depressed over his knee disabilities. Dr. Williams stated [i]t is my opinion that the severe stress and trauma associated with his experience with staphylococcic infection post- operatively in his left knee and the extreme disappointment and worry associated with his realization of the fact that no further surgical intervention regarding his knees could be contemplated for the forseeable (sic) future that this stress was a significant precipitating factor in the illness that led to his hospitalization in March of 1988. It is my opinion that this significant loss of possible knee repair potential may continue to be a source of considerable stress and disappointment and worry to [the veteran] and may be expected to aggravate his chronic psychiatric illness. In May 1988, E.B. Gripon, M.D., reported that the veteran had numerous knee operations which caused him to have stress related problems due to his knees. Dr. Gripon opined that the veteran's mental status stemmed from the veteran's original knee problems. The veteran was afforded a VA psychiatric examination in January 1989. The veteran stated his main problem was that he had thoughts of suicide. He stated that he did not want to keep living if his knee continued to cause so much pain. The veteran complained that he had difficulty sleeping, crying spells and a sense of hopelessness, all due to the pain in his knees. The veteran stated that he experienced auditory hallucinations. The mental status examination noted that the veteran talked at length and in a self-absorbed manner about his orthopedic disability. The diagnoses included dysthymia, severe, due to status post multiple surgical treatment, both knees, with significant disability and chronic pain; and history of major depression, recurrent, with mood congruent psychotic features. VA outpatient treatment records in February 1989 note that the veteran was seen by a psychologist. It was reported that the veteran had an underlying personality disorder exacerbated by a knee injury. The diagnoses were major depression, recurrent, with mood congruent psychotic features; and borderline personality disorder. In a report dated September 1990, Dr. Gripon stated that the veteran's emotional symptoms developed as a direct result of his physical impairment due to his right and left knee disabilities. A dysthymic disorder was diagnosed. The veteran was hospitalized at a private facility in December 1990 with severe depression, anxiety and the inability to cope. It was noted that the veteran complained of extreme pain in both knees, and had become extremely depressed and suicidal when the VA discontinued his pain medication. The veteran was afforded a VA psychiatric examination in January 1991. The examiner noted that he reviewed the veteran's VA claims file. The veteran stated that he had crying spells all the time, and attacks of anxiety approximately every three days. The veteran's complaints all stemmed around his knees and "the way the VA has treated him." The diagnoses included dysthymia, chronic, severe, secondary to chronic pain in both knees; and major depression, recurrent, with mood congruent psychotic features. In June 1991, Dr. Gripon reported that the veteran's condition represented dysthymia, secondary to situational factors which have directly arisen out of his orthopedic disability. In May 1992, VA outpatient treatment records note that the veteran experienced suicidal ideation due to his orthopedic disabilities. The diagnoses included dysthymic disorder. The veteran was hospitalized in June 1992 due to auditory hallucinations and agitated behavior. The examiner noted that the veteran had incurred bilateral knee injuries while in service. The diagnoses were an adjustment disorder, with abnormal conduct and mood; somatoform pain disorder; personality disorder, not otherwise specified, with histrionic and dependent traits; bilateral knee joint degeneration; severe chronic pain; and the birth of a new baby. A statement from Dr. Gripon dated August 1992 reported that the veteran tended to be chronically, severely depressed, with difficulty coping with the alterations that have come about his life secondary to his physical limitations. Dr. Gripon opined that the veteran's symptoms of depression and anxiety were a direct result of his multiple medical disabilities. The most recent clinical evidence of record is a VA psychiatric hospitalization report dated January 1994. The veteran reported increasing irritability and uncontrollable rage. He stated that he experienced uncontrollable crying and had suicidal and homicidal ideation. It was noted that the veteran was preoccupied with his knee surgeries. The diagnoses were dysthymia; past history of major depression; adjustment disorder; rule out personality disorder, possibly dependent and definitely obsessive traits; status post multiple knee surgeries and pain. Based on a careful review of the evidence of record, the Board finds that it has no other option than to grant service connection for a psychiatric disorder, secondary to the veteran's service-connected knee disorders. The evidence supporting a finding that a direct cause-and-effect relationship between the two disabilities exists is at least in equipoise with countervailing evidence. Both VA and private physicians have reported that the etiology of the veteran's dysthymic disorder was due to his service-connected right and left knee disorders. Although the Board is not bound by these opinions, these medical conclusions, along with the entire evidence of record, to include VA hospital, examinations and outpatient treatment reports, can be read to show that the veteran's psychiatric disorder is directly related to the pain and disability due to his service-connected right and left knee disorders. Guerrieri v. Brown, 4 Vet.App. 467 (1993). It is the view of this Board member that to conclude otherwise would, quite simply, not withstand Court scrutiny. Accordingly, service connection for a dysthymic disorder, on a secondary basis, is warranted. ORDER Entitlement to service connection for a right knee disorder, other than chronic strain is granted. Entitlement to service connection for a dysthymic disorder, on a secondary basis, is granted. REMAND In light of the Board's findings above, the case is now remanded on the issue of entitlement to an increased rating for the veteran's service-connected right knee disorder, chronic strain. The Court has held that all issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet.App. 180 (1991). As the issues of an increased rating for the veteran's service-connected right knee disorder is "intertwined" with the determination of service connection for a right knee disorder, the case is remanded to the RO in accordance with the holding in Harris for development. If this issue remains denied, the veteran and his representative should be provided with an appropriate supplemental statement of the case and be afforded an opportunity to respond. In either event, the case should be returned to the Board for further appellate consideration, to include consideration on the issue of entitlement to an increased rating for a left knee disorder, and whether the rating action of July 1987 granting benefits pursuant to 38 C.F.R. § 4.30 was clearly and unmistakably erroneous. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case. JEFF MARTIN 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. (CONTINUED ON NEXT PAGE) Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).